Criminal Procedure

The United States Constitution

With The Advice And Consent Of The Senate

With the nomination and Supreme Court confirmation hearings of Judge Brett M. Kavanaugh, the Senate confirmation process of Supreme Court nominees has been much in the news.

Article II of the United States Constitution states that the President shall have to power, with the advice and consent of the Senate, to nominate Judges to the Supreme Court.  So, under the U.S. Constitution, the power to put a Supreme Court justice on the bench is shared by both the President and the Senate.

Alexander Hamilton was a proponent of dividing the power to select Supreme Court Justices between the President and the Senate.

According to Alexander Hamilton, who was a signatory to the Constitution, giving the President the sole power to put a judge on the Supreme Court would not be wise as the President “would be governed much more by his private inclinations and interest.” So, the founders wisely decided to divide this power between the President and the Senate.

In modern history, when the President nominates a person to the Supreme Court, the Senate Judiciary Committee holds hearings and questions the nominee.  This process has frequently been contentious.

Thurgood Marshall became a Supreme Court Justice in 1967, and served until 1991.

Thurgood Marshall became a Supreme Court Justice in 1967, and served until 1991.

In June of 1967, President Lyndon Johnson nominated the first African American to the Supreme Court, Thurgood Marshall.  As an attorney in 1952, Marshall, had successfully argued the landmark school desegregation case of Brown v. Board of Education before the Supreme Court.  At his Senate confirmation hearings in 1967 Marshall faced intense opposition from the chairman of the Senate Judiciary Committee, Senator James Eastland of Mississippi, who was a staunch segregationist.  Nevertheless, Marshall performed well at the hearings and the Senate confirmed him.

The Senate does not always go along with the President’s pick.  Since the Constitution went into effect, the Senate has voted to reject the President’s nominee 12 times. The last nominee to be defeated in the Senate was President Regan’s pick in 1987, Judge Robert Bork.  However, as in the case of President Obama’s 2016 nominee to the Court, Judge Merrick Garland, sometimes the Senate takes no action on a nominee, and the nominee is not confirmed.

Which justices sit on the Supreme Court has a profound influence upon the development of criminal law.

For example, from 1953 until 1969, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants

From 1953 until 1969, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants. 

For example from 1953 until 1969, such as in the case of Miranda v. Arizona, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants.  However from 1986 until 2005, Chief Justice William Rehnquist led a Supreme Court that narrowed some of the constitutional protections for criminal defendants that the Warren Court had established.

If you are interested in learning more about the Supreme Court and its justices, an excellent resource is the Oyez website.  There you can review short biographies of the justices, review case summaries, and listen to recordings of Supreme Court arguments.

Ernesto Miranda

What Are Miranda Rights And Who Was Ernesto Miranda?

On March 3, 1963, an eighteen-year-old woman had been working in the concession stand at a movie theatre in downtown Phoenix.  After work, she boarded a public bus to go home.  When the bus reached her stop, she started to walk toward her house. She observed a car, which afterwards proved to be that of Ernesto Miranda.

Miranda Rights

The car that Ernesto Miranda used to kidnap his victim. 

Mr. Miranda got out of his car, approached the woman, and forced her into the backseat of his car.  The woman had never seen Mr. Miranda before.

Mr. Miranda drove the car for about twenty minutes out to a secluded area in the desert. Mr. Miranda stopped the car, and sexually assaulted the woman.  Mr. Miranda then drove the woman back into the city.  As he dropped her off he told her “pray for me.”  The woman ran home, and told her family, who called the police.

The woman met with detectives, and told them that the car that her assailant  drove was green or gray, and had dark upholstery with stripes. About a week later, a family member of the woman spotted a car in the neighborhood that matched the description, and got a partial license plate which he provided to police.  From that partial plate, the detectives determined that Ernesto Miranda was a suspect.

On March 13, 1963, police officers arrested Mr. Miranda and took him to the police station.  Officers placed Mr. Miranda in a line up, but the woman he had kidnapped and assaulted was not able to positively identify him as her attacker.

Ernesto Miranda Line Uo

Ernesto Miranda was placed in a line up after his arrest.  Miranda is wearing the card labeled #1.

Detectives then questioned Miranda for two hours.  The detectives did not inform Miranda that he had the right to have an attorney present.

Ernesto Miranda's written confession

Ernesto Miranda’s written confession.

Mr. Miranda eventually confessed to kidnapping and assaulting the woman, and his confession was used at his trial. The jury convicted him and the judge sentenced him to 20 to 30 years in prison.

In 1966 the United States Supreme Court reversed Mr. Miranda’s conviction.

The Supreme Court held that though the Fifth Amendment of the United States Constitution guaranteed that “no person shall be compelled in any criminal case to be a witness against himself,” that when police officers take a person into custody and question them, that the unless the police give the person certain warnings, the officers are essentially compelling the person to be a witness against themself.

Therefore, the Supreme Court held that when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subjected to questioning, police must warn the person prior to any questioning of the following:

  • that he has the right to remain silent; 

  • that anything he says can be used against him in a court of law; 

  • that he has the right to the presence of an attorney;

  • if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Many people misunderstand the Supreme Court’s holding in the Miranda case.  Miranda does not mean that police must read a person his rights after any arrest, nor does Miranda mean that police must read a person his rights before any questioning. 

What Miranda means is that police only have to read a suspect his Miranda Rights if police conduct a custodial interrogation.  A suspect is in custody for purposes of receiving Miranda protection when there is a formal arrest, or a restraint on freedom of movement of the degree associated with a formal arrest.  Interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

In a custodial interrogation, custody and interrogation take place at the same time.

Miranda v. Arizona

The United States Supreme Court decided Miranda v. Arizona in 1966.

Sometimes police conduct an interrogation but the suspect is not in custody. For example, detectives will frequently leave their business cards at the homes of persons involved in an investigation.  If the person that received the business card calls the detective and agrees to come to the police station to answer some questions and the detective does not detain or arrest the person during the questioning, there is interrogation but no custody – so the detective is not obligated to read the Miranda Rights.

Sometimes the suspect is in custody but the police don’t conduct an interrogation.  For example, police officers frequently arrest two subjects at the same time and place them in the back of a patrol car.  Unbeknownst to the two subjects, police will leave a recording device on in the vehicle so they can record what the subjects are talking about.  Often, one or both of the suspects will make incriminating statements.  The two subjects are in custody but because no police officer is asking them questions there is no interrogation – so the police officer is not obligated to read the Miranda Rights.

As far as Mr. Miranda himself – he did not get away with his crime.  After  the United States Supreme Court overturned his conviction in 1966, his case was returned to the Arizona trial court.  At his second trial, the prosecutor could not use Mr. Miranda’s confession against him.  However, Mr. Miranda’s ex-common law wife testified at the second trial that shortly after Mr. Miranda had been arrested for the kidnapping, she had gone to visit him in jail, and that during that visit Mr. Miranda  admitted to kidnapping and assaulting the eighteen-year-old woman.  The jury convicted Miranda, and the judge sentenced him to prison.

Mr. Miranda was paroled in 1973, but his newfound fame made it difficult to get a job.   To make money, he carried autographed Miranda Cards and sold them around Phoenix.

Miranda Rights

After getting out of prison, Mr. Miranda made money by selling autographed Miranda Rights cards.

Before too long, he was picked up on a parole violation, and sent back to prison.  In 1976, he was released but shortly thereafter got into a fight over $2.00 in change during a poker game at a bar.  During the fight, Mr. Miranda was stabbed to death.  Police detained and questioned a suspect that allegedly had handed the murder weapon (a knife) to the Miranda’s killer, but the suspect, after receiving his Miranda warnings, declined to make a statement.  The killer fled and was never found.

If police seek to interview you concerning a crime, it’s best to speak with an experienced criminal trial attorney before speaking with them.  Though you may be completely innocent, misunderstandings can occur.   An attorney can guide you through the process, and  safeguard your rights.

If you or a loved one is under investigation in the Tampa Bay area for a Federal or State offense, call Board Certfied Criminal Defense Attorney David C. Hardy.  For more information on Attorney Hardy’s experience, click here.


New and Improved “Get Smart” Federal Government Surveillance

In the 1960’s comedy television series “Get Smart”, Agent 13 was a Government agent whose job was to perform surveillance upon an evil international organization known as “KAOS.”  To spy on on  “KAOS”, Agent 13 would hide inside uncomfortable places, such as a cigarette machine, mailbox, locker, washing machine, trashcan, toilet, tree, or fire hydrant.

Get Smart’s Agent 13 disguises himself as potted plant.

Nowadays with advances in technology Government agents don’t have to hide themselves in unsuspecting places to perform surveillance.   An example of the Government’s current surveillance tactics can be seen in a recent case from the federal district court in San Francisco.

In U.S.A. v. Giraudo, five Defendants were accused of conspiring to restrain competition by rigging bids at public real estate auctions.

To understand this case, you need to know that when a person or business defaults on a mortgage, the property in question may be sold at a public auction.  The proceeds from the auction are used to pay off the bank that holds the mortgage, with the remaining proceeds, if any, paid to the person or business that defaulted on the loan.

However, in this case, the Government alleged that before the auctions, the five Defedants would pick the winning bidder for the property amongst themselves, and then the winning bidder would pay the losing bidders off for keeping their bids low.  This practice is illegal because it lowers the sale price of the property, which essentially steals money from the bank holding the mortgage, as well as the person or business being foreclosed upon.

During the Government’s investigation, FBI agents planted listening devices outside the entrance of a county courthouse where the auctions took place.    The FBI did not get a warrant (permission) from a judge to plant the listening devices – they just did it on their own.

The listening devices were hidden in a metal sprinkler box, a planter, and an automobile.  The FBI turned these devices on at least 31 times and captured over 200 hours of conversations.  The devices were so sensitive that they were able to capture not only the voices of people standing in front of the courthouse talking on their cellphones, but also the voices of the persons on the other side of the line.  The listening devices did in fact capture incriminating conversations amongst the Defendants, which supported the Government’s case.

The San Mateo County Courthouse in Redwood City, California

The Defendants’ attorneys filed motions to suppress the recordings, claiming that the FBI violated the Fourth Amendment of the United States Constitution when it failed to get a warrant before it eavesdropped on their conversations.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The United States Supreme Court has held that the Fourth Amendment not only protects places, but also a person’s communications.  However, the Fourth Amendment does not protect every communication a person makes.  In the San Francisco case, Federal District Court Judge Charles Breyer, whose brother is Supreme Court Judge Stephen Breyer, noted that the Fourth Amendment would protect the conversations that took place in front of the courthouse only if:

  1. The defendants had a “subjective expectation of privacy” in their conversations in front of the courthouse.In other words, the defendants had to have thought that their conversations were private.
  2. The defendants’ expectation that their conversations were private was “objectively reasonable.” In other words, the defendants’ beliefs that their conversations were private had to have been reasonable.

The Government’s lawyers argued that the FBI did not need to get a warrant from a judge because the recorded conversations took place in front of the courthouse – which is a public place.  Therefore, the Government argued that the defendants did not have a reasonable expectation of privacy and the Fourth Amendment does not apply.

The Defendants’ attorneys disagreed.  They argued that people often have a reasonable expectation of privacy in public places.   For example, people in public places often move off the side away from other people to talk in private, or they may lower their voices so other people won’t hear them.

After reviewing the facts of the case, Judge Breyer analyzed whether the Defendants had a “subjective expectation of privacy” and if so, whether or not that expectation was “objectively reasonable.”

Senior United States District Court Judge Charles R. Breyer

First,  Judge Breyer noted that the video and audio recordings showed that one of the defendants would keep a close eye on the people near him, speak in a lower voice or stop talking when strangers approached, and generally do everything possible to make sure nobody else heard his conversations. Therefore, Judge Breyer felt that the defendants had a subjective expectation of privacy in their conversations. In other words, the defendants thought what they were saying was private.

Second, to determine whether or not the defendants’ subjective expectations of privacy were objectively reasonable,  Judge Breyer considered a variety of factors, including: the location of the conversations; whether the conversations could be overheard with the naked ear; whether the conversations took place out in the open; whether the conversations involved business or private matters; the proximity of other individuals to overhear the conversations; the affirmative actions taken by the speakers to shield their privacy; the need for technological enhancements to hear the communications.  After considering all these factors,  Judge Breyer found that it was reasonable for the Defendants to have believed that their conversations were indeed private.

Having determined that the Defendants had a subjective expectation of privacy in their conversations in front of the courthouse and that that expectation was objectively reasonable,  Judge Breyer ruled that the FBI had violated the Fourth Amendment’s prohibition against unreasonable searches when it recorded the Defendants’ conversations without a warrant.  Therefore,  Judge Breyer suppressed the recordings.  The effect of Judge Breyer’s order was that the Government could not use the recordings as evidence at the Defendants’ trial.

However, it appears that even without these recordings, the Government had enough evidence to convict the Defendants, and all 5 Defendants ended up pleading guilty.  Their sentences ranged from probation, to 15 months of incarceration.

If you would like to learn more about what happens when police use investigative methods that violate the U.S. Constitution, click here:


Florida Double Jeopardy

Double Jeopardy and Hollywood


In 1999, a Hollywood movie called “Double Jeopardy” came out.

The film begins with a woman waking up at sea on her family’s yacht in a storm. When the Coast Guard arrives, she has blood all over her, a knife in her hand, and her husband, who had been the only person onboard the yacht with her, is missing. The husband’s body is never found. The wife is eventually arrested, tried, and convicted for her husband’s murder.

While the wife is serving time in prison, she begins to suspect that her husband faked his own murder and framed her in a scheme to get rich. Another inmate tells the wife that because she has already been convicted of her husband’s murder, that under the 5th Amendment’s double jeopardy clause, she can now kill her husband for real and not face criminal prosecution. Though it’s never a good idea to take legal advice from a prison inmate, the wife believes she can now legally kill her husband. When the wife gets paroled, she starts looking for her husband. When she finds him alive and well, she points a gun at him and says: “I learned a few things in prison.  I could shoot you in the middle of mardi gras and they can’t touch me.

According to the Merriam-Webster Dictionary, Double Jeopardy is defined as the act of causing a person to be put on trial two times for the same crime.

The protection against double jeopardy can be found in the Fifth Amendment to the United States Constitution, which states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Florida Constitution also has a double jeopardy protection as part of Florida’s Declaration of Rights, which states, “No person shall…be twice put in jeopardy for the same offense.”

In 1957, in a case called Green v. United States, the United States Supreme Court explained the rationale for the double jeopardy clause, stating that:

The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense…. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The double jeopardy protection does not apply until jeopardy has “attached.” With a jury trial, jeopardy attaches when a jury has been selected and sworn (taken an oath). With a bench trial (a trial in which a judge decides the case rather than a jury), jeopardy attaches when the first witness has been sworn.

It’s important to remember that there are times when the government can try a defendant more than once for the same offense. For example, if a defendant goes to trial, is convicted, but then gets the verdict overturned on appeal, the double jeopardy clause normally does not prevent the government from retrying the defendant. That’s what happened in the famous case of Miranda v. Arizona. In that case, Mr. Miranda was convicted for the kidnapping and rape of an eighteen-year-old woman, but because police had not informed Mr. Miranda of his rights to obtain an attorney and remain silent during his custodial interrogation, the United States Supreme Court overturned his conviction. Because the double jeopardy clause did not prevent the State of Arizona from retrying Mr. Miranda, the prosecutor filed the charges again. At the second trial, the prosecutor was not allowed to present evidence from Mr. Miranda’s confession. However, the victim was able to testify against Mr. Miranda, the jury found him guilty, and the judge sentenced him to prison.

With respect to the “Double Jeopardy” movie, the wife’s problem is this. When a grand jury or prosecutor accuses a person of murder, they charge that the murder took place at a particular location and time, and double jeopardy applies only to the murder that took place at that particular location and time. So, if the wife in “Double Jeopardy” were to kill her husband at a different location and time, then double jeopardy would not apply. Therefore, the inmate that told the wife that if she found her husband alive, that she could kill him with impunity, was wrong.

As far as what happened to the husband and wife in “Double Jeopardy”, the wife does eventually shoot and kill the husband in a shoot out. However, it would have been the law of self-defense, rather than the law of double jeopardy, that would have determined whether or not she would have been convicted of murder.

To learn more about the law of self defense in Florida as well as the Florida Stand Your Ground Law, click here.