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What Should A Person Who Is Arrested For The First Time Know About Discovery?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

It actually is very important and that’s an excellent question because quite often, when people have been arrested for the first time and they have no experience with the criminal justice system, their thinking goes like this, “They got me dead to the rise. I have no defense, I should save money, go to court, plead guilty and throw myself on the mercy of the court because after all, I’ve never been in trouble before”, wrong. That is exactly a textbook example of what not to do because mostly, people do not understand this simple principle. Just because there is evidence that does not mean it is admissible evidence that can be used against them at trial.

There are all types of evidence and evidence has very specific rules about what evidence can come in and what evidence to not come in to a criminal jury trial. For example, all the time, I’ll hear people say, “Well, I’ve got this evidence but it’s not important because it’s hearsay”, there are almost 30 exceptions to hearsay under Florida’s evidence code. That basically means that they’re throwing out a lot of evidence that may be admissible. One of the most powerful forms of evidence is reputation for honesty or dishonesty. This is hearsay evidence and when we’re questioning witnesses about this in depositions or in an office chat or by phone or however.

Quite often, the witness will say, “Well, all I know is hearsay”, and I am thinking to myself, “Yes, that’s exactly what I’m looking for”, and I start going through this list of things. Do you know John Doe? “I know John Doe, I’d say I know of him more than I know him”, great. Do you know other people in the local community who know John Doe? “Sure. I know lots of people. This is a small town, it’s got 300 residents and I know over a hundred of them”. How many people do you know that know John Doe? “I don’t know. I haven’t counted them but I’d say dozens, people from high school, people from work, people from church, people who go down to Joe Bob Whiskey Barn or whatever” and as I’m going along through these questions, they are meeting all the criteria and it turns out that John Doe has a reputation for lying and we have a criminal case where John Doe has accused somebody of a criminal act.

What type of evidence do we have, that is the main evidence in this particular case while it’s not fingerprints, it’s not photographs, it’s not blood spatter, it’s not DNA, it’s not SPECT brain imaging, it’s John Doe’s testimony and here we have evidence that is admissible that shows John Doe has a reputation for being a liar. So it’s critically important for people when they are first offenders to understand this aspect of evidence. The evidence may not be admissible. Additionally, the evidence may not be relevant. If it’s not relevant, it definitely isn’t admissible. This is something that is specific primarily to first offenders and those people whose prior record consists of things of driving while license is suspended, cancelled or revoked.

Those are kinds of cases that don’t lend themselves to a large discovery effort like a murder or a DUI with a blood draw or a burglary with fingerprint and footprint analysis. So one of the things that I really like to let people know if they have no experience with the criminal justice system other than TV shows and Netflix’s is the rules of evidence. It’s critically important, especially if someone is a first offender to hire competent legal counsel because the defense lawyer is going to instantly understand this and probably will not even raise it during an initial consultation because it’s so engrain in what we do that we don’t even think about it. It’s like driving a car.

You don’t sit there and think for yourself, “Okay. I need to put 1.2 pounds of pressure on the turn signal downwards to that it’ll signal and I need to do it in exactly 4.3 seconds and then I need to apply 18.1 pounds of pressure to the brake pedal”, I mean you don’t think these things when you drive. You just drive. For lawyers, when it comes to evidence that’s admissible and not admissible, we go through these checklists both in our files and in our heads really rapidly. Unfortunately, there isn’t much discussion during initial consultations with first offenders about how evidence works. Instead, most first offenders are weighing competent legal care and the likelihood of a better outcome against the bad deal known as the diversion program.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

For more information on Discovery In A First Time Arrest, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.