The shocking decision in Caribo v. State, 4D2023-2962, courtesy of your friends on the 4th DCA ("We're gonna getchya") allows for the introduction of a defendant's prior convictions as impeachment when a defense attorney solicits from a police officer during cross examination a statement her client made. Ay Caramba!
Danger Will Robinson! This is not good!
“When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.” § 90.806(1), Fla. Stat. (2023). “A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which 5 the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment[.]” § 90.610(1), Fla. Stat. (2023).
This is the statement that came out on cross by the defendant's attorney:
Q: Okay. So after the interview, you took a picture of the shoe, was there any other things that you did with Mr. Caribo regarding this case?A: I asked him if he—I believe I asked him if he had any of the jewelry concealed on him, at the time. Other than that, I don’t believe I did anything else, just speaking to him.Q: Okay. And did Mr. Caribo act, like, surprised or did he say he had jewelry?A: He said he didn’t have any jewelry on him.
The learned judges (note the sarcasm) found this to be a hearsay statement of the defendant which, naturally, allowed the prosecution to impeach the defendant who was presumably sitting quietly at counsel table quietly working on Wordle, with 23 felony and 5 misdemeanor convictions,
So now cross-examiner beware! One wrong question, and all your client's priors come flooding in.
(H/T Judge De La O's case law email update)
Opinion_2023-2962 by Anonymous PbHV4H
Yeah that meme is a pic of the defense attorney during a break after her client's priors came in and she never put him on the stand. Such jerks in Broweird
ReplyDeleteWhen do we hear the outcome about the bar complaints on the win at all cost prosecutors?
ReplyDeleteI am not sure why this is a shocker. As a former ASA I routinely argued this law back in the early 2000s, that if you slip in self-serving hearsay with another witness, that a statement has come from the defendant, and the person who made the statement can be impeached just like any witness who took the witness stand. The defense could have stopped at This is right in Ehrhardt's Florida Evidence going back more than a decade. How is this news?
ReplyDeleteQ: Okay. And did Mr. Caribo act, like, surprised?
That is where the question should have stopped. "... did he say he had jewelry?"
That goes to put in front of the jury that the officer would say the defendant said didn't have jewelry.
No, the cop's answer should have stopped at "No." If defense counsel had asked, "Did he say he didn't have jewelry," and the cop said yes, then defense counsel would have elicited the self-serving statement. But defense counsel didn't ask that question.
DeleteIn any case, the dissenting view is correct.
How many times have I stood in front of a jury and said "my client has entered a plea of not guilty. He is entitled to the presumption of innocence." And that was followed up by the judge repeating it ten times during the course of the trial. So does that now mean that the prosecutor can waive a felony conviction in front of the jury and say "yes he did plead not guilty but don't believe him. He is a convicted felon!!" Or how about this one: a detective asks the defendant at the scene "did you murder him?" The defendant says "no I did not." So now the prosecutor can put in evidence a false statement he made on his driver license application 5 years ago?
ReplyDeleteWhat's the link to Judge De La O's case law update?
ReplyDeletePino
ReplyDeleteWhats up with disgraced Don Lemon and a bunch of high calorie liberal women marching in a church and causing a scene? What's up with you people?
ReplyDelete90.403 should have prohibited the priors because they were supposedly impeaching an undisputedly true statement, that he didn't have the stolen jewelry. It could only have created a false impression that he lied to police about having the jewelry, as well as convincing the jury of his guilt based on his prior record.
ReplyDelete