Testimony Is Evidence

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.

Welcome back to Florida Criminal Law TV. I am your host Stephen G. Cobb, Attorney at Law. We are talking about sex offenses and specifically we are talking about defenses. And I want to relate a conversation that I had a long time ago. Now, this person came in, they were charged with a sex offense. We were able to get a bond and he said, Mr. Cobb, I do not understand. There is no evidence against me”. I said really? He goes, “Yes, there is no DNA. They took DNA from me, they took DNA from her, they checked her panties, they even checked her vagina, there is no DNA, none whatsoever. They did not find any DNA and she went to the hospital almost immediately after we had sex and they did not find anything, so there is no evidence”. He went on to say, “There were no witnesses. There were no witnesses who even saw us when we first got together because I did not meet her in the bar; I met her in the parking lot and we started talking and that is how we ended up hooking up, so there are no witnesses, there is no DNA. I have made no statements”, because quite often, an investigator will say something like “You are not under arrest, you are free to leave. Translation: I am trying to avoid having to read you your Miranda warning”, that is what that really means. But people get sucked into that and they go, “Let me tell you what happened. No, we did not have sex but yes, I met her”, or, “Yes, I met her, yes we had sex but it was consensual”. Both of those things establish the element that yes, the person did know the other person, or yes, they not only know them but they did have sex.

Prosecution has proved these kinds of things so when people start chatting, that is what happens. And this guy says, “I did not make a statement”, and he had already recounted there was no DNA. He went on to list out several other different types of evidence that were not lacking, I mean not present, that was lacking to which I replied something that everybody should remember, “Testimony is evidence”. And he goes, “What do you mean”. I repeated myself. I said, “Testimony is evidence”, “Well, can’t you get this dismissed? I mean what is wrong with you? I paid you good money, can’t you get this dismissed?” Right away, I am realizing yes, this guy is just as much of a problem to deal with as I thought it would be, which is very common when people are under stress and they do not use coping with stress during the criminal prosecution.

If you run into a scenario as a lawyer and you are defending criminal cases and people want constant handled and chat sessions in the office or a weekly phone call, what that tells me is they are not dealing with stress and they confuse counselor at law with mental health counselor and let me help you with that. I am not a mental health counselor, no lawyer I know in this field is. I am sure there are some but most lawyers are not equipped to be mental health counselors. So, please, use coping with stress during the criminal prosecution for one reason above all else. It works. And this person was not using that and he had a real problem understanding that in certain cases, yes, no DNA evidence is an absolute defense that blew the case out of the water. But in his case, because facts matter and every case has factual dissimilarities, it meant that testimony was evidence, he had a factual dispute and I could not get it dismissed because none of the four grounds under the Florida Rules of Criminal Procedure for dismissal of cases applied.

So, in that scenario, we had to go to trial. So, when you are analyzing your case from the perspective of a family member, from the perspective of someone who loves someone else who is falsely accused or especially if you are the defendant and you have been falsely accused, do not delude yourself into believing, “Well, there is no DNA, I did not make any admissions, there are no video evidences, there are no photographs, there are no witnesses, so I am just home-free, I am going to win. I do not need to hire a lawyer”. That is called How To Go Out The Backdoor, or especially if you do not listen to your lawyer’s advice, Go Out The Backdoor For The Longest Possible Sentence.

So, when it comes to defenses, and we have covered a lot of ground in this series and we still got some more to go, always remember that just because you have a defense does not mean necessarily that it is the defense that automatically wins your case.

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.