domestic violence "the crime behind closed doors"

Copyright © 2013, William Umansky

All rights reserved. No part of this book may be used or reproduced in any matter whatsoever without written permission of the author, except in the case of brief quotations embodied in critical articles or reviews. This book is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the published is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of competent professional personnel should be sought. Accordingly, no liability can be assumed regarding how the information is applied to your particular personal situation. No client relationship has been created or can be inferred by purchase of this book.

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By William Umansky, Esq.

Table of Contents IInnttrroodduuccttiioonn .......................................................................................................................................3

Initial Appearance & Bond...................................................................................................................4

Conditions of Your Bond .....................................................................................................................7

Handling Your Domestic Violence Case ................................................................................................8

What if the Victim Presses Charges? .................................................................................................. 10

Evaluating the Evidence .................................................................................................................... 11

The Arraignment .............................................................................................................................. 12

The Court Process............................................................................................................................. 15

Conclusion ....................................................................................................................................... 22

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Introduction Domestic violence cases are very serious cases in our society today. They come with some very heavy repercussions. Domestic violence cases can also be the same type of crimes as other crimes. For example, there are battery and assault charges that at some point can have a domestic violence connotation. It takes a simple battery or a simple assault charge to sort of another level of seriousness when it comes with a domestic violence

connotation. In our court system, domestic violence is normally defined as an altercation or a battery or assault between people of the same family. Family can mean brothers or sisters, moms and dads, an actual blood relationship; but it can

also mean a relationship between people that have children in common or ar e l iving together as a family. A lot of times, the domestic violence that we hear about in the news and that draws some of the more serious attention is when it happens between a husband and wife, boyfriend and girlfriend, people that have kids together or they live

together as a family. A lot of times, these types of crimes happen only in the confines of somebody’s home between the actual two parties in the case. Often there are no other witnesses involved. If there are no other people that saw anything

happen, these cases are extremely difficult for prosecutor’s to prosecute. Don’t take that as if that is something the state is just going to drop or they're just not going to care about because in fact it’s the opposite. It becomes a challenge to prosecutors who think, “If I can’t prove this because I have no additional witnesses, I am going to do everything I can to get the alleged victim of the crime to come into court,” or “I’m going to do everything I can to

try to find additional evidence so that I can provide this to the defense and so that I can go forward on this case.” It becomes a challenge to them.

- William D. Umansky

“The Law Man”

If you would like to discuss your case with me, or any attorney of my firm, just call

us. The meeting is free and we would be happy to sit down and talk to you.

The Umansky Law Firm

1945 E Michigan St

Orlando, FL 32806

407-228-3838

www.TheLawMan.net

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Initial Appearance & Bond

Some people that are arrested will never see a Judge for an initial appearance, however all clients charged with a domestic violence charge will see a Judge for an initial appearance. Some crimes are eligible for a bond as soon as you are fully booked into the jail, but again, domestic violence charges are not. A bond is a cash money payment to the jail. This payment must be made in order for you to be released from the facility. The idea behind a bond is to help insure your appearance for Court. If you d o not show up when you are supposed to or if your lawyer does not properly waive your appearance for court, you are in danger of forfeiting the bond initially posted in your case. Also, there is a good possibility that a warrant will be put out for your arrest. Most of the time when a bond is forfeited, it is gone forever. The amount of bond that you are required to post is correlated with the type and degree of the charges you are facing. Normally, if your charges are misdemeanors, then your bond amount will be much lower than if your charges are felonies. Also, within the misdemeanor level, second degree misdemeanors will normally have a lesser bond than first degree misdemeanors. Comparably, third degree felony charges usually have a much lower bond amount attached to them, than do first degree felony charges. Most charges are eligible for a bond. However, if you are facing charges that are punishable by life (or a PBL) charge, then you are not entitled to a bond initially. Also, if you were arrested for a Violation of Probation or some Domestic Violence Charges, then you are also not entitled to a bond initially, if at all.

Bonding Out

Cash Bond: This is the term used when your friends or family members are able to get enough cash together to cover your entire bond amount. Using a cash bond to post bond in most cases is better than using a bondmen. If your friends or family member have the financial means to post the entire cash bond, then it is suggested that you use this route. One reason some people prefer to post a cash bond over another type of bond is that you will get the benefit of the entire cash bond coming back to you in one form or another.

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For example, if your friends or family members post a cash bond and your case is eventually dropped, then the entire amount of the cash bond will be returned to the person that posted the bond on your behalf. Another possible scenario arises when your case does not get dropped, but you take a plea bargain to resolve your case. In this scenario, you will most likely be required to pay courts costs, fines, and cost of prosecution and costs of investigation. If you posted a cash pond, then the Co urt will take the court costs, fines, and costs out of the cash bond. If the cash bond was big enough, and there is additional monies left over, then the Court will return the rest of the cash bond to the person that posted your bond. If the cash bond was not big enough to cover all of the court costs, fines, and cost, then you will be responsible for the difference. Either way, posting a cash bond, seems to be the easiest way to get the benefit of all of the money used to post your bond.

Bondsmen: A bondsman is a person that makes their living posting bonds for people. Most of the time a bondsmen is used when your friends or family members do not have enough cash on hand, or cannot get enough pulled together, to post your entire bond in cash. If this is the case, your friends or family members will need to be able to come up with at least 10% of your bond amount to give to the bondsmen. Most bondsmen also require your friends or family members to put up collateral property to insure the remaining portion of your bond.

To understand why the bondsmen’s require collateral, we must remember that the purpose of the bond is to insure your appearance in Court. If your bond is posted through a bondsmen, and you fail to appear for a Court date, then they bondsmen will lose his money to the Court. The bond will be forfeited. But, the bondsman is somewhat protected financially if this happens because his bond is insured by your friends and families collateral. He can take their property to recoup his losses. So, remember, if you fail to appear for Court your friends and family members will lose their collateral to the bondsmen. Because the bondsman does not want to lose his money, he will attempt to help you get to Court. Sometimes they will send you letters and help you keep track of your Court dates. However, they are not lawyers, and they are very busy, so they often forget and miss Court dates. They can by no means be

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your only source to rely on to find out when and where to be in Court. Also, a bondsman is like a Bounty hunter if you fail to appear in Court. They have the ability and authority to track you down and bring you to jail or to Court if you have missed a Court date. The bottom line is that your bondsman does not want to lose their money, and they will go to great lengths to make sure that does not happen.

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Conditions of Your Bond

One major problem that often occurs in domestic violence cases is the Judge at the initial appearance of the accused setting bond conditions that are going to make the life of the accused more difficult. An initial appearance happens within twenty-four (24) hours of your arrest. While not all people that are arrested will get an initial appearance, some people who are arrested can immediately bond out of jail, however all of those accused of domestic violence will see a judge for an initial appearance. An initial appearance in domestic violence cases is used so that that Judge can set certain conditions on the bond of the accused person. There are many different things that the judge can do. But, basically, the Judge is allowing you out of custody, telling you that you can and cannot do certain things, and threatening to put you back into jail if you violate these terms. For example, the judge could give you a no contact order with the alleged victim or could tell you that you cannot return to the residence or the place where the alleged incident happened. In some instances, the alleged victim will actually show up at that initial appearance and speak with the judge. If that happens, it’s always good. However, if it doesn’t happen, as your lawyer we can file a motion to modify the conditions of the domestic violence bond. An attorney can basically go to the judge and say, “Judge, this is a hardship on the family. The alleged victim wants the client to return home,” and essentially provide the judge a lot of reasons why the judge would modify the domestic violence bond. One of the only ways that you can get into court before your first court date to get this done is to hire a lawyer. That is one reason it’s very important for you to find a lawyer that would be willing to do this very quickly and avoid hardship and financial difficulties on your family.

“One of the only ways that you can get into court before your first court date to get this done is to hire a lawyer. That is one reason it’s very important for you to find a lawyer that would be willing to do this very quickly and avoid hardship and financial difficulties on

your family.”

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Handling Your Domestic Violence

Case

The person that comes into a lawyer’s office is, most of the time, is the person that has been accused of a domestic violence crime. Normally, the case has happened because there has been some type of dispute or squabble at their house and the person sitting in the lawyer’s office gets arrested. Most of the time when police get called out to a domestic disturbance, somebody is going to jail. A lot of times it’s both parties. After a person bonds out of custody, they come to our office and sit in front of an attorney with the police report. The first thing many attorneys ask the cl ient is, “Is this alleged victim cooperative with prosecution?” meaning does the alleged victim want to go forward with helping the state prosecute you? If the answer is no, the attorney will proceed to try to ask the alleged victim(s) to fill out what is called a declination of prosecution. This is a sworn affidavit that states that the alleged victim is not in fear of the person accused and they do not want the state to go forward with charges against the accused. Also, included in the declination of prosecution affidavit is a statement that the attorney is not the alleged victim’s attorney and that the alleged victim is not being pressured into signing that statement. If the alleged victim does not want to go forward with prosecution, it is very important to get a statement from them and to get that information to the prosecutor as soon as possible. This information is pertinent to the prosecution in determining whether or not the State will pursue charges against the accused person.

“If the alleged victim does not want to go forward with prosecution, it is very important to get a

statement from them and to get that information to the prosecutor as soon as possible.”

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The next thing that an attorney can do is look at the police report. The attorney will try to determine if there is any other evidence that the State has against the accused that might aide them in proving the case. Is there any physical evidence, are there any other witnesses, were there older children at home, were there neighbors, did this happen in a public place? These are all important questions to evaluate. These are all things that might aide the State to prove the case against you even if the alleged victim doesn’t show up for court. It is important for the accused person to know if the State might have a shot at proving the case against them, even if the alleged victim does not show for Court. We will discuss more about this later in this guide.

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What if the Alleged Victim Wants

to Press Charges?

Up until this point, we have discussed domestic violence cases in terms of alleged victims being uncooperative with prosecution, i.e. the alleged victim doesn’t want to go forward with helping the State prosecute you. But, but what if they do? What if the alleged victim in a case definitely wants to go forward with prosecution against the defendant and what will happen if the alleged victim is very much in fear? The State Attorney’s Office will reach out to the alleged victim, normally irrespective of their position, to confirm how the alleged victim feels about the case. Just like the State Attorney’s Office will likely listen when the alleged victim wants the case to be dropped, the State Attorney’s Office will likely listen if the alleged victim wants prosecution to go forward. Normally if the State Attorney’s Office has a willing alleged victim, they will file charges against the defendant. How hard they pursue the case and what plea offer/ resolution they offer will depend upon their conversations with the victim and his/her wishes. There are some situations where the alleged victim just wants the accused person to get some type of treatment, maybe mental health counseling or substance abuse treatment. At the time when the State Attorney’s Office calls them as the case is beginning, the alleged victim can convey their wishes for this treatment. If the alleged victim only asks for treatment, then it is likely that the State Attorney’s Office will offer the accused probation to resolve their case. This probation will be ordered to make sure that the accused complies with the treatment that the State Attorney’s Office thinks that they need. In a situation where the alleged victim was hurt badly or if the alleged victim believes that jail time is appropriate, then the State Attorney’s might listen to this as well. Of course, they all have discretion in each case and will hopefully do what they feel is appropriate. However, they will take the alleged victim’s wishes into consideration.

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Evaluating the Evidence

While the testimony of the alleged victim in a domestic violence case is the most crucial piece of evidence, there are other ways the State can attempt to prove the case without the alleged victim’s appearance in Court. When evaluating this, we must inquire whether or not there was a 911 call made to the police at or near the time of the alleged incident? Did the alleged victim call 911 and explain to 911 what was going on? Most of the time, phone calls like 911 calls or out of court statements are considered hearsay and they are not admissible into the criminal court system because they are inherently unreliable. However, our courts have looked at 911 calls and said because of some different factors, including the call being made at the time of the event and the alleged victim still being under the stress of the event, 911 calls are considered more reliable than other types of out of court statements. When the call meets these factors, Courts will allow 911 calls to be admissible into evidence in criminal proceedings. Because of the admissibility of 911 calls into evidence, it’s important to know, did the alleged victim call 911? Did they say on the 911 call who the aggressor is, what the aggressor looked like and exactly what the aggressor did to the alleged victim? It’s basically like they’re testifying in court. It can be very problematic for the defendant because it’s basically like the alleged victim is testifying in court so even if they don’t show up, the state will still have that additional evidence. Other evidence that we will look for in your case might be, was there was any injury to the alleged victim? Anything that can be corroborated with the 911 call might be problematic for the defendant. For example, if on the 911 call, the alleged victim says, “John Doe just hit me in the eye.” And, then the police showed up and in fact there was an injury to the alleged victim’s eye, there is a problem. Evidence like 911 calls and corroborating victim injuries can help prove the case even without the alleged victim’s testimony. Overall, an attorney will look to see what the strength of the case is and we can usually, in our initial consultation, give that information to our client or to our potential client about what the strength of their case is.

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The Arraignment If the State files formal charges on you, then your case will be set for an Arraignment. Sometimes you will have this Court date when you bond out of jail. However, if the State decides not to pursue formal charges against you, then the Clerk of the Court will cancel this Court date. Your arraignment is the time that you enter a plea to your case. A plea can either be: (1) Guilty, (2) Not Guilty, or (3) No Contest. If you hire a lawyer on your case, then your plea at arraignment will be not guilty. This will be entered by a written pleading (or written document) that we file well in advance of your Court date. This plea of not guilty will stand until you choose to change it, your case gets dropped, or you go to trial on your case. If you hire a private law firm to represent you, your lawyer will usually file a written pleading (or a written document) waiving your appearance at your Arraignment. This is nice because you will not have to attend this Court date. There is no need for you to go to this Court date in most cases, unless you are advised specifically to appear on your case. If you retain a lawyer, you will not have to take time off work or school to sit in front of a judge for 4-8 hours! Your appearance or non appearance at this Court date will neither help nor hinder the progress or resolution on your case. Your lawyer will be notified on what charges that State of Florida plans to pursue against you through notice from the Clerk of the Court in the county where you are charged. Normally, your lawyer will be advised of your charges in advance of your Arraignment Court date. Your lawyer will take the time to advise you of the charges eliminating your need to attend your Arraignment Court date. Every State Attorney’s Office in every Circuit is organized differently, however most of the Offices, have a separate Bureau called, “Intake.” This is the group of lawyers (prosecutors) whose job is to solely make the charging decisions on cases (i.e. make decision on what charges the State of Florida will proceed on against you). These lawyers are usually very experienced on the elements of different crimes and are good at evaluating the facts of each case in light of the elements of each charge. Once the intake attorney (prosecutor) decides what charges the State of Florida will proceed on in your case, then the Intake attorney will file a formal charging document against you. In most cases that formal charging document is called an “Information.” This document will state specifically the charges you are facing, the elements of each of those charges, and some specific facts of those charges. While the “Information” does allege a few specific facts, it is still pretty general and not very detailed. However, it should be enough to put you on notice of what the State of Florida expects to prove that you did which was in violation of Florida State Law. There are other formal charging documents that can be used in your case and that are recognized as formal charging documents in specific kinds of cases. You may be charged by Information, Indictment, Citation, or Notice to Appear. The type of charges you are facing will help determine what charging

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document the State Attorney’s Office will use in your case. Again, the most common is an Information, so you should become familiar with this term. While it is likely that your arrest will lead to formal charges, it is possible that your lawyer can convince the Intake attorney to not file charges on your case. If you hire a private lawyer before formal charges are filed in your case, you buy yourself an opportunity to try to get the charges dropped before they are actually filed. Your lawyer can contact the lawyer assigned to your case in the Intake Bureau and see if there is something that can be done to convince the Intake attorney not to file formal charges on your case. Most of the time, your lawyer will try to find a legal defense, meaning one based in State Statute or Florida Case Law, to use to convince the intake attorney to not file formal charges. If State Statute is used, your lawyer is basically telling the intake attorney that he or she does not have enough evidence to prove the case beyond a reasonable doubt against you. If the argument by your lawyer is based in Florida Case Law, then it is very possible that your lawyer is arguing that the Law Enforcement Officers did something wrong in your case that could lead to suppression (or exclusion from Trial) of some of the State’s evidence against you. Sometimes these arguments work and your case is over before y our Arraignment Court date, and sometimes they don’t and formal charges are brought against you. However, this initial contact by your lawyer to the Intake attorney is worth a shot because it does work in “close call” cases. This is one of the many reasons that you should hire a lawyer early in your case, meaning very soon after your arrest. If not, you will waive your right to have this chance. All of this work will happen before your Arraignment Court date. If the State does pursue formal charges against you, entering a plea of not guilty at your Arraignment Court date will give your lawyer time to receive the evidence that the State of Florida has against you in your case, discuss and investigate possible defenses to your charges, prepare for pre -trial motions and possibly trial, and finally, negotiate with the State Attorney’s Office for possible favorable resolutions in your case.

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The Court Process

1. Pre-Trial Conference and Case Management Court Dates After your Arraignment, it is likely that the Judge will set two more court dates. These two court dates, your Pre-Trial Conference and Case Management Court date, normally encompass second and sometimes third “real court dates”. The easiest way to describe what will happen at this court date is to refer to it as a scheduling date for the path of your case. The county in which your charges are pending will determine what this court date is called. Every county uses a different term to refer to this scheduling court date. Some counties call it, “Pre-Trial Conference,” while other counties call your second court date a “Docket Sounding.” Regardless of the name, the purpose is the same to set a scheduling path for your court case. Traditionally, this court date is for your lawyer to tell the judge that either: (1) Your case is ready to go to trial, (2) You and the State of Florida, through the trial prosecutor assigned to your case, have reached a negotiated resolution on your case and you wish to enter a plea to your case, or (3) You and your lawyer need a continuance on your case in order to more adequately prepare your case for trial or do some additional work to get your case ready to enter a plea. At this scheduling court date most by the book, rigid Judges only like your lawyer to use the works, “Trial”, “Plea”, or “Motion to Continue.” However, some Judges will get more involved in the interworking of each case. Depending on what type of Judge your case happened to be assigned to will determine how long this court date can last. It could be 2 minutes, or 2 hours, or even longer. There are other, more off the record, uses for this scheduling court date. The most common is your lawyer using this as a time to talk, face to face, with the trial prosecutor assigned to your case. In the bigger counties, the case load is ever growing and expanding. Because of the high case load, the trial prosecutors are extremely over worked and overburdened. Even in the smaller counties, in light of

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budget cuts, etc., the trial prosecutors are busy. No matter how many times your lawyer emails, calls, and tries to see the trial prosecutor assigned to your case, the trial prosecutor simply might not have time, or choose to be lazy and not get back to your attorney. In these cases, the scheduling court date can be a good time to talk face to face with the trial prosecutor assigned to your case. It will always be the goal of your lawyer to talk to the trial prosecutor assigned to your case before this scheduling court date. It is more efficient and will put your mind at ease if things happen this way. However, sometimes plea offers are not extended to your lawyer until this court date. Also, sometimes, even when an offer has been extended, it cannot be tweaked to a point where you w ill accept it until this court date. For example, if you want to accept the plea offer, if you can buy out your community service hours, the trial prosecutor might have had time to call or email with the original offer, but might not have a chance to get back with your lawyer about this “tweak” until the scheduling court date. So, it is possible that your lawyer will not have an answer on your requests until he or she is actually in court on this scheduling court date. In most circumstances, again depending on what county your case is in, your lawyer can waive your appearance at this second, scheduling court date. This court date requires a signed waiver of your appearance, where your appearance at your arraignment court date can be waived without your signature. Because there are important decisions that are going to be made at your arraignment court date, the Judge wants to know that you are okay with your lawyer attending on your behalf and speaking for your interests. If there is not a signed waiver of your appearance at this scheduling court date in the court file prior to the court date, then you must be present or risk the Judge issuing a warrant for your arrest based on your failure to appear. It is the responsibility of your lawyer to make sure that there is a Waiver of your Appearance is in the court file or to make sure that you know to be present at this court date. For most of our clients, this waiver will be signed at your initial consultation with our firm. But if you do not come into our office for the consultation, it will be your responsibility to return this to our office before this second court date or you will have to be present. In some counties, the Judge will even set a third court date called Case Management. At the Case Management conference, the Judge will accept more plea resolutions, handle some preliminary pretrial issues for cases going to trial, and refine and narrow down the trial calendar for cases actually going to trial. Most judges want the client to appear for that court date so the court knows that the clients who want to go to trial are fully informed about what is going on.

2. Plea Resolutions A nolo contendere (no contest) plea means that you believe that resolving your case by pleading to your charges is in your own best interest. It also shows the Court that you believe that you are ready to get your case over. It also shows the court that you are not going to contest the evidence against you any further (i.e. not go any further with pre-trial motions and/ or trial). Basically, you want the case over and

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you are going to accept whatever punishment that the Court deems fit. Most people that plea no contest do not entirely agree with the State’s evidence/ case, but they also do not want to take the risk of going to trial on the case. A lot of lawyers do not do a good enough job explaining to their clients that when you plea no contest to charges, the disposition still does go on your record. It is not a way around this case going on your background, but hopefully it will assist you as you explain the charges to anyone that might see them on a background check. A no contest plea might also help you avoid automatic civil liability. In some cases a person can be charged in criminal court and then also sued in the civil courts for damages (i.e. money). A plea of no contest is not automatically admissible against you to prove liability in a civil suit. However, be warned, this is not a block to civil liability, it is just not an automatic admission.

3. A Withhold of Adjudication The concept of a Judge withholding of adjudication on your charges used to be more beneficial in the past than it is to today’s clients. However, it is still important to understand what the term means and how it may affect you and your future. Most easily explained the word adjudication most closely means conviction. So, if the Judge “withholds adjudication,” then the Judge “withholds” the conviction and you are not formally convicted of a crime under Florida law for that case. If the Judge chooses to adju dicate you guilty, then you are formally convicted of a crime in that particular case. Now, what most clients do not understand is that yes, you beat the conviction or an adjudication (conviction and adjudication mean the same thing under Florida law) i f the Judge pronounces a withhold of adjudication at your sentencing hearing, but the case still shows up on your record. Do not be confused about this fact. If the Judge withholds adjudication on your charges, you may not lose your right to carry a weapon, or to vote, and you may be able to say you’re not a convicted felon, and you may be able to seal your record after your case is over and you can but guess what? Sometimes receiving a withhold of adjudication on your charges is not as great as your think especially on a domestic violence case. If you get a withhold of adjudication, on most types of charges, and you have little to no prior criminal history, then you might be eligible to seal your case after you are done with your sentence and your case is completely closed. However, if you plead guilty or no contest to a domestic violence charge, you will not able to seal your charge even if you receive a withhold of adjudication. The law does not allow for sealing of a domestic violence case. This charge will permanently be on your record.

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However, if you HAVE to plead guilty or no contest to a criminal charge, then you want your lawyer to try to get you a withhold of adjudication. It will assist you in explaining the result of your case and will sound better to potential employers, school, etc. Also, a withhold of adjudication, taking into account your prior record, normally will allow you to seal this charge from your record. While it is not fool proof for your future, it is the lesser of the two evi ls between a withhold of adjudication and an adjudication of guilt.

4. The Trial

A trial is the final piece of a criminal case. This is the time, if your case does not resolve before, in which the State of Florida will be required to prove that you committed the crimes that they are alleging that you committed beyond and to the exclusion of every reasonable doubt. The State of Florida will most likely attempt to prove your guilt by bringing in witnesses with knowledge of your case, possibly presenting physical evidence that they think ties you to the crime, and overall arguing to a jury that they should find you guilty of the crimes that they have alleged.

The first part of a trial is jury selection, or technically called, “Voir Dire.” This is where the attorney for the State of Florida and your lawyer get to stand in front of a pool of people and ask questions. These questions are geared to assist in picking the fairest jury for your case. The Judge will bring in a large group of people to narrow down. Most of the time the Judge will ask this group of people some general questions about the legal process, any affiliation they have with it, any affiliation they might have with the parties in this case, and some other general questions to get a feel for the jury that is sitting in front of them. It is the Judge’s job to determine schedu ling and make sure that all of the potential jury members will be attentive and available to last throughout the duration of the trial. Which Judge your case is in front of will determine how many questions the Judge will ask. Some Judges ask a lot of questions and some are more willing to let the lawyers in the case inquire of the potential jury members. Once the Judge gets done with this introduction and his general questions, the lawyers will get a chance to inquire of the potential jury member. The attorney for the State of Florida will go first and ask all of the questions that they want of the panel. A lot of times the State’s questions are trying to find out biases against the government or law enforcement officers. More than likely your lawyer will have some standard questions that they feel is important to ask in every jury selection that they do. Some of these questions will sort out potential biases and other questions are designed to explain, from a defense prospective, the terms used in the criminal trial process. Examples of these terms are, “Beyond and to

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the exclusion of every reasonable doubt”, “Right to Remain Silent and not testify”, and the phrase, “Innocent until proven guilty.” Specifically, in your case, you and your lawyer should dis cuss other potential questions that might need to be asked in your particular case. This conversation should take place before your trial, so that you will feel confident that your lawyer will ask everything that you would like asked during the jury selection portion of the trial. After the jury has been selected, the next step of the trial is opening statements. Opening statements in a trial are used as “roadmaps.” They are supposed to help the jury understand what each side expects the evidence to show in your case. The State of Florida will generally tell the jury what they believe their witnesses and their physical evidence will show to prove that you are guilty of the crimes they have alleged. They will use this time to ask the jury to find you gui lty at the conclusion of the trial. What your attorney discusses in opening statements will depend upon your case and your attorney’s strategy. Because, as a defense attorney, we are not sure how the State’s case is really going to go, it is usually in our client’s best interest to keep the defense’s opening statements brief and not detailed. The jury is going to expect to see and hear all of the things that the lawyers say that the jury is going to see and hear. Overall, a general, brief, interesting opening statement is usually the best bet for Defense Attorneys. However, this is not a rule. Every case is different. The facts and circumstances of your individual case will determine how your attorney approaches the opening statement. After the attorneys for both parties lay out a “roadmap” for the jury, then the State will begin presenting their case. The State will be allowed to call witnesses and present evidence that they believe goes towards proving your guilt. Your attorney will be attentive and engaged in this process. It will be up to your attorney to make sure that, under Florida law and Florida Rules of Evidence, only admissible evidence is presented to the Jury. Once the State of Florida gets done asking questions of one of their witnesses, your lawyer will have a chance to cross examine their witness. After the State of Florida presents all of the evidence that they have against you, they will “rest.” After the attorney for the State of Florida is done, then it will be your time (through your l awyer), to present the defense’s case. Sometimes the defense’s case is just as long, or longer, than the State of Florida’s case. If you have witnesses or physical evidence to present, then you will have previously talked about this with your lawyer. Your lawyer would have been responsible for getting those witnesses and that evidence ready for trial. If you have witnesses that you would like called to testify at your trial, then your lawyer will call them to the stand at this point in the trial. When your lawyer calls your witnesses, then your lawyer will be the first to ask them direct examination questions. After your lawyer gets done asking all of the questions that you and your lawyer think are essential, then the lawyer for the State of Florida will get to cross examine your witness. This will be done in a similar fashion as discussed above. The final step of trial is closing statements. During closing statements, the State of Florida and your lawyer will get to argue to the jury why, in light of the evidence in your case, they should find you guilty or not guilty. The State of Florida will get to argue to the jury first, then your lawyer, and then the

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attorney for the State of Florida will get to finish closing statements off with the last word. The F lorida Supreme Court has given the State of Florida what lawyers call the “sandwich” in closing arguments. This means that the State of Florida goes first and last, with your lawyers closing arguments “sandwiched” in between. Depending on the timing of the trial, your lawyer should ask you for things you would like to bring up during closing arguments. But, you need to also remember, that your lawyer knows your case well and he or she has been paying close attention to your trial. Your lawyer will be spending their time arguing in your best interest. During this time, you need to sit back and listen to your lawyer fight for you. After closing arguments, the Judge will read to the jury a series of, often lengthy, jury instructions. These instructions are used to guide the jury in discussing your case and coming to a conclusion on a verdict. Rendering a verdict could take two minutes, two hours, two days, or could possibly never happen. There is no way of predicting the time line for jury deliberations. If the jury is able to reach a unanimous decision, then they Judge will bring all of the parties to the case back into the courtroom for the reading of the verdict. If the verdict is not guilty on all counts, your case is finished and resolved forever. If you are out of the State’s custody during your trial, then you will be free to leave the courthouse with your friends and family. However, if you are in custody during your trial, then you may have to be transported back to the jail to be booked out of the jail through their normal procedure. Whether or not this must happen is always at the discretion of the Judge. Some Judges will take the liberty to release you right from the courtroom upon a not guilty verdict. If the verdict comes back guilty on all or some of the counts in which you are charged, then the Judge will have to decide how he wants to handle your sentencing. The Judge is entitled to proceed with sentencing on your case immediately or he/ she can decide to postpone sentencing to a later date. Every case is different and it is hard to predict what the Judge will do in your case.

5. Sentencing

At your sentencing, whether it happens immediately after trial or weeks later, you are able to present testimony on your behalf to the Judge before the Judge pronounces sentence. You and your lawyer, although a very hard conversation, have a talk before trial about your sentencing. This conversation is necessary so that your lawyer is prepared for your sentencing hearing, in the event that it is needed. Commonly friends and family members come to sentencing hearings to speak good about you to the Judge. Also, it is helpful to make the Judge aware of any job that you are holding, school you are attending, kids that you have, or good works that you are doing in the community. If your sentencing gets set off for a few weeks after your trial, and you are out of custody during that time, your lawyer might suggest that you take some rehabilitative classes (impulse control class, anger management, etc.).

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This will give you something additional to show the Judge at sentencing. This will help the Judge see that you are taking this very seriously and might encourage the Judge to go easier on your sentence. If the Judge chooses to immediately proceed to sentencing and not set off the sentencing hearing, and he/she sentences you to a term of incarceration, then most of the time, you will be taken into custody immediately to begin serving your sentence. If there are real, identifiable appellate issues in your case, then your lawyer can ask the Judge to set a supersedes bond in your case. This is a bond that you are released on, after trial, to allow you time to appeal your case before you begin serving your sentence on the case. These types of bonds are very rare, but are available, if there are real appellate issues in your case.

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Conclusion The lawyer you hire is the person that stands between you and the government’s desire to punish you. That lawyer is the last bastion between you and the ultimate consequence for the crime you may have committed. If you do not feel 100 percent comfortable sitting down with that lawyer, do yourself a favor and interview several lawyers. There is always an attorney out there that is right for you. Don’t feel that just because you were referred to them, or you read great reviews, that it means that they’re right for you. You need to pick the lawyer that helps put your worries at ease. Never feel you have to se ttle and always trust your gut instinct when picking a lawyer. We believe clients should educate themselves on legal issues. I know that self -educated clients become better clients of our law firm because they are informed and confident of decisions they make, and confident of the advice we give them. We hope you found this information helpful. If you have any other questions about finding a great lawyer for yourself or a loved one, please don’t hesitate to contact me by telephone or e-mail.

If you have questions about your charges or would like me to review

your case, contact our office to schedule a free appointment.

Bill “The Lawman” Umansky

Phone: (407)228-3838 E-Mail: [email protected]

mailto:[email protected]

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