The dominant news story is about whether elected Congressional members or the President took statements out of context for political gamesmanship. Americans are not shocked at this spat between branches of government, but most are shocked to learn that the government uses this political tool against citizens in criminal courtrooms. When citizens speak to law enforcement, the government decides what to tell a jury about that conversation. Often, law enforcement and prosecutors do not have to tell the jury about exculpatory parts of the interview. This forces the citizen to take the stand, testify, be subject to cross-examination by a government lawyer, and hope that the jury believes the citizen and not a sworn law enforcement officer, who chose not to record the conversation.
In a recent case, FBI agents arrested our client, and the client agreed to a recorded interview. As trial neared, the government filed a 51-page motion asking the court to exclude the client’s protestations that he was innocent. Thankfully, the federal court permits the defense to file a written response to all motions. We provided the court with controlling law that the government failed to disclose to the court. The law required the prosecution to disclose the entire conversation, as opposed to only some statements that could be taken out of context. We not only provided the Court with the controlling law but also pointed out that the government had tried the same tactic in other cases, to keep from the jury the defendant’s full statement, including claims of innocence. The court ruled that the entire conversation was admissible if the government questioned any FBI agent about any parts of the conversation.
This case law was from the U.S. Eleventh Circuit Court of Appeals which controls federal trial courts in Alabama, Georgia, and Florida. Other federal circuit courts are not so concerned with ensuring the government provides the jury with the entire statement of the citizen. The Fourth and Ninth Circuits, which control federal trial courts in Alaska, Arizona, California, Hawaii, Idaho, Maryland, Montana, Nevada, North Carolina, Oregon, South Carolina, Virginia, Washington, and West Virginia, do not require prosecutors to present the entire interview. In addition to different rules in federal courts, state courts have their own rules. In 2018, the Florida Supreme Court declined to follow the Eleventh Circuit’s lead and ruled prosecutors did not have to tell the jury about the whole interview.
In Nock v. State, the Florida Supreme Court found a citizen cannot compel prosecutors to introduce into evidence the entire recording of a defendant’s police interview if prosecutors only ask law enforcement to tell the jury about parts of the interview. Unlike federal law enforcement, Florida law enforcement routinely records interviews with citizens. If a Florida prosecutor introduces any portion of the recording, Florida law requires the entire recording to be provided to the jury. However, if the Florida prosecutor only asks a law enforcement officer about statements that bolster the prosecutor’s case, the jury has no right to hear about the other portions of the interview or even review the recording. Even worse, should the defense find a way to force the law enforcement officer to disclose exculpatory information from the interview, the Florida Supreme Court said the prosecutor can introduce damming evidence against the defendant, even if that evidence is not otherwise inadmissible. This last point is more complicated than this blog is meant to address.
It is imperative to not speak to law enforcement without a lawyer. If you believe you are under federal or state investigation, or if you are an attorney with a client under federal or state investigation, contact the Law Offices of Horwitz & Citro, P.A.immediately. Call (407) 901-5852 to request a free initial consultation with an experienced criminal defense lawyer.