What most people view a formality can mean the difference between a criminal conviction on a person’s record and a not guilty. While most understand the concept that the burden to prove the case rests with the State Attorney’s office, there is one often overlooked element that can result in an acquittal of the defendant:
The State must produce a witness who is able to come to court and identify the defendant as the person who committed the crime. In most cases this is just a formality; the witness will point to the defense table and identify the defendant, or in most cases just point at the person sitting next to lawyer. But what happens when you don’t make it that easy for the witness? What happens when the witness is required to use their memory from the date of the incident and not just rely on the person sitting next to Attorney or the person who was brought out in shackles?
In most cases an arrest is made after law enforcement determines that a crime has been committed. However in misdemeanor cases the law enforcement officer does have another option. The officer can issue “a notice to appear” in lieu of placing the defendant under arrest. The officer will give the defendant a citation with a court date that the defendant is required to be at. Since no arrest was made, no booking photo was taken. This can potentially create a problem for law enforcement months later when it comes time to identify the defendant at a trial.
Case in point:
Attorney Jeffrey M. Rich put the officer’s identification skills to a test in a recent misdemeanor trial in Hillsborough County. On the morning of trial, Attorney Rich met the defendant outside the court to address any last questions. What had already been discussed before they arrived at the court house was that once they entered the courtroom there would be no communication between them.
Jeff Rich and the defendant entered the courtroom separately. The defendant took a seat in the back of the courtroom that was filled with other spectators. Attorney Rich approached the officer who issued the notice to appear and spoke with him about the case, and asked the officer if he would be able to identify the defendant. The officer responded that he was “pretty sure he could, and then when he walked to the front of the court room he would remember him”. At that point Attorney Rich took a seat in the front of the court and waited for the Judge to take the bench. Jeff Rich had already instructed the defendant to remain seated when the case was called and not to walk to front of the courtroom. The Judge took the bench and called the case, both sides the State and defense announced ready for trial. At that point the Judge inquired about the defendant’s whereabouts. Attorney Rich informed the Judge of the circumstances and his belief that the officer could not independently identify the defendant unless he walked to the front of the courtroom. Attorney Rich requested that the defendant be allowed to remain seated in the audience for the trial. The Judge granted this request and told the State to call their first witness.
The Officer took the stand and began his testimony after a brief introduction the officer was asked if he could identify the defendant from the audience. The Officer responded that he could. At that point the State attorney asked the Officer to identify the defendant. The Officer pointed to an individual who was seated in second row of the audience and identified him by saying he was wearing a green tee-shirt. At that point Attorney Rich informed the court that that was not the defendant and asked for the case to be dismissed. The Judge asked for the defendant to come forward at that point an individual who was sitting in the last row and wearing a suit stood up and walked forward. The Judge dismissed all charges based on the defendant not being identified.
So, the issue of identification in some cases may not just be a formality: it can determine the ultimate outcome of a case. If you’ve been charged with a felony or misdemeanor in the state of Florida, you need a lawyer that is going to look at every detail in order to give you the best defense possible. Call the criminal defense attorneys at Jeffrey M. Rich today at 813-251-3330.