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Articles Posted in criminal trials

Is Google Map evidence admissible in a jury trial?  An appeals court in Florida recently said “not necessarily” when it reviewed this question in City of Miami v. Kho.  

Juanita Kho sued the City of Miami for negligence after a trip-and-fall accident on a Miami sidewalk in 2010.  The sidewalk Juanita tripped on had an asphalt patch that was one-and-a quarter inches lower than the adjoining concrete slab.  Juanita alleged that is what caused her to fall, and that the difference in elevation was a “dangerous and defective condition.”

In order to win her case, Juanita was required to prove that Miami had either actual or constructive knowledge of the sidewalk’s condition at trial.  Unable to prove that Miami had actual knowledge of the condition of the sidewalk, she sought to prove constructive knowledge using a Google Maps photograph of the sidewalk dated November 2007 to show that the “dangerous and defective condition” existed then and that Miami should have known about it when she tripped in 2010.

Robert Kraft’s lawyer filed a motion to suppress challenging how the police obtained the video evidence against Kraft and the basis of the traffic stop where Kraft’s identity was learned.  In Kraft’s case, the motion to suppress is essentially the entire case assuming the video depicts what the police claim it shows.  This is true in many types of criminal cases like, gun crimes, drug offenses and crimes like possession of child pornography where the legal issues in the cases determine whether the case is dismissed or resolved by plea.

In this Blog, I will look at the motion to suppress that has been field.  The motion challenges the basis of the warrant.

Kraft’s best defense is to challenge the Warrant authorizing the search and hidden cameras.

How were Jupiter PD officers able to obtain video footage of the act?  Hidden cameras were used to catch Kraft and others on video via delayed-notice search warrants.  According to CNBC, these “sneak-and-peak” warrants allowed the Jupiter PD to secretly install cameras inside of a private business to monitor illegal activity. Delayed-notice warrants have been used in the United States since the 1970’s, and were formalized under §213 of The USA Patriot Act.  In a typical warrant situation, law enforcement will give immediate notice that the warrant is being executed.  A delayed-notice warrant allows law enforcement, with a judge’s explicit permission, the ability to execute the warrant without notifying the subject of the search for a limited period of time.  Most importantly, the underlying reason behind granting a delayed-notice warrant, thus waiving the immediate notification requirement, is to prevent the following: danger to life or safety of an individual, flight from prosecution, destruction of or tampering with evidence, intimidation of witnesses, or other serious jeopardy to an investigation.

Jupiter PD and prosecutors cite that the case is and was a human-trafficking investigation, however none of the affidavits that have been released describe trafficking occurring at the Orchids of Asia Day Spa.  The Motion to Suppress argues that the police made misrepresentation in order to obtain the warrant about what was occurring in the Spa.

An additional issue is the basis to stop Kraft after he was leaving the spa.  The prosecution would have to argue that they were monitoring the camera and saw what occurred prior to the stop.  If the camera was being monitored, the prosecution would argue that they had probable cause based on the video from the camera to make a motor vehicle stop based on reasonable suspicion that Kraft committed criminal activity.  If the police were not contemporaneously monitoring the camera, but stopping everyone that left to obtain their names, that would have violated the 4th Amendment as there would not have been reasonable suspicion at the time of the stop.


On March 18, 2019 the Palm Beach County State Attorney’s Office offered Kraft, along with the 24 other men who were charged, a diversion plea.  Pretrial Diversion Programs with no formal admission required but a requirement that Kraft admit that he would have been found guilty at trial.  Typically, pretrial diversion programs do not require an admission of guilt.  In this case, given Kraft has no record the State should be offering a diversion without an admission or an outright dismissal of the case.  A prosecutor has a duty to ensure that police comply with the law.  The prosecutor should have serious issues with the police conduct in the case and do the right things and offer a dismissal of the case.  As a practical matter, the public embarrassment is a more stringent penalty than any court imposed penalty.

The NFL Potential Repercussions

On top of his potential criminal liability, everyone in the NFL, including owners, are subject to the NFL’s personal conduct policy.  According to ESPN, the policy covers “conduct by anyone in the league that is illegal, violent, dangerous, or irresponsible, puts innocent victims at risk, damages the reputation of others in the game, and undercuts public respect and support for the NFL,” per its text. Owners and club or league management are held to higher standards under the policy and are “subject to more significant discipline when violations … occur.” League owners have previously faced large fines and suspensions for admissions of guilt relating to substance related charges, and the Patriots themselves have suffered fines, loss of draft picks, and suspensions for spying and “Deflategate.”

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The SJC decided the case of Commonwealth v. Quinton Williams finding that the trial judge did not error by excluding a juror who stated that the criminal justice system was rigged against young black Americans.  The SJC in the majority opinion and concurring opinion of the Chief Justice stated that it would not be proper to exclude the juror for cause based on this opinion, which the Court indicated has empirical support so is closer to a fact than opinion.
The Court found that the trial judge properly excluded the juror because of her equivocation about whether she could be fair and impartial.  The Chief Justice in his concurring opinion indicated that the court gives great deference to a trial judge questioning a juror as the questions are quick and spontaneous.  The Chief Justice indicated that while he would not have excluded the juror and may have asked more questions, that he did not find a reversible error in the decision to exclude the juror.

The defendant argued that if the court strikes a juror for cause improperly, the court should automatically reverse the conviction as it is a structural error in the trial, the equivalent of giving the Commonwealth and extra peremptory challenge.  The Court rejected the argument that this is the same as denying the defendant a peremptory challenge finding that the juror was presumably replaced with another fair juror.  The Court found that a defendant is not entitled to a a jury of any particular composition.

The Massachusetts Supreme Judicial Court affirmed Michelle Carter’s conviction for involuntary manslaughter.  The SJC began its decision by addressing what it decided in Michelle Carter’s first appeal to the SJC referred to as Carter I.  In Carter I, the SJC held that verbal conduct alone could overcome a person’s will and rise to wanton and reckless conduct to support a conviction for involuntary manslaughter.

The SJC held that the evidence presented to the trial judge was sufficient to support a conviction.  The SJC essentially adopted the reasoning of the trial judge in the case.

Key Evidence Supporting the conviction 

In a Massachusetts Criminal Trial, of any type, whether murder or an OUI, the verdict must be unanimous, meaning that all six jurors have to agree whether the verdict is guilty or not guilty.  If jurors cannot reach a unanimous verdict, it is called a hung jury and the Commonwealth is permitted to retry the case.  The first Bill Cosby trial ended in a hung jury. In every criminal trial, a jury should be instructed on this principal of law.  The jury misunderstood this; possibly the instruction should be simplified telling the jury directly that a conviction cannot rest on a vote of five to one or four to two.

In Commonwealth v. Dibenedetto, a trial from the Worcester District Court the jury was under the mistaken belief that only a majority was required to return a verdict.  When the judge learned of this after thanking the jurors following the verdict, he instructed them that the verdict must be unanimous.  After his reinstruction following the first verdict, the jury then again returned a guilty verdict.  

The Appeals Court held that after the verdict is recorded the verdict is final. After the verdict is rendered, the judge is precluded from inquiring into the propriety of the jurors deliberation or decision making. The Appeals Court stated that the prohibition against impeachment of a verdict is not absolute.  Juror testimony, the Court stated, can be used to show the following:  unauthorized site visits, improper communication between parties, or consideration of facts not in evidence, as well as racial bias. 

  On January 7th, Actor Kevin Spacey will be arraigned on Indecent Assault and Battery charges out of Nantucket District Court.  Spacey’s lawyers requests that his presence be waived for the arraignment due to publicity from the case.  Spacey is charged with sexual assault of a teenager in a Nantucket bar.  

Lawyers argued that Spacey’s appearance would increase the publicity from he case and potentially contaminated the jury pool.  

Definition of an Arraignment in Massachusetts Felony Charge

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Michelle Carter yesterday.  In this Blog, I have outlined some of the key issues that the SJC addressed during the oral argument.

Was there sufficient evidence to convict Carter of involuntary manslaughter?  

The defense lawyer argued that the key pieces of evidence is the defendant’s text from two months after where she told a friend that she told him to get back into the truck.  The defense contended that that text message was part of very long and rambling texts so that to use a text as the basis to find her guilty was not supported by sufficient evidence.

The Massachusetts Supreme Judicial Court will address a case that will have an important impact on the way juries are formulated in Massachusetts.  The case is Commonwealth v. Quinton Williams, where a judge allowed the prosecutor to excuse for cause a juror that stated that Black American are treated unfairly by the judicial system.  The SJC allowed for direct appellate review in the case.

  The case was a drug distribution charge out of the Brockton District Court.    The juror answered the judge’s question as follows after the judge asked if the juror has an bias in the case. The juror responded as follows:  

I work with low-income youth in a school setting; I work a lot with teenagers who are convicted of drug crimes.  And frankly, I think the system is rigged against young African Americans.  The juror said that the views could be put from the juror’s mind after asked by the judge.  The juror indicated that the opinion would not impact the ability to be fair and impartial.  

Jury selection is a critical part of any criminal trial in Massachusetts.  In Massachusetts, the rules have changed allowing greater attorney participation in jury selection.  The new rules permit Attorney conducted voir dire.  However, the judge still determines whether an individual shall be excluded for cause from a jury.  There are two ways to exclude a potential juror from sitting on a jury.  The first is through a challenge for cause.  This is a request by one of the attorney to exclude a juror based on the fact that the lawyer believes that the juror cannot be fair and impartial. 

For example, in an OUI trial, a judge may exclude a juror for cause that has been in an accident with someone thought to be under the influence of alcohol.  This would be based on the fact that the juror’s experience may bias the juror against the defense.  Some judges may try to rehabilitate the juror to keep the juror on the panel by asking if the juror can set aside that experience and still be fair and impartial.  A judge should allow a defense lawyer to ask follow up questions to determine if the experience is so ingrained that it would start the defendant off at a disadvantage with respect to this juror. 

A recent case decided by the Massachusetts Appeals Court addressed the issue of when a judge abuses his discretion for not excluding a juror for cause.  The case was Commonwealth v. Chambers, decided on August 29,2018.  

A Florida pre-teen was found dead in her home in Glades, Florida on January 10. The alleged culprits in the case, two middle-schoolers, are facing cyberstalking charges after one of their classmates, Gabriella Green, took her own life after being harassed on the internet through various social media platforms.

Cyberbullying, as defined by the United State Government, is bullying that takes place using electronic technology.  Essentially, the term “cyberbullying” describes the act of harassing, threatening or intimidating another individual via electronic means such as by use of cell phones, computers, tablets, and social media platforms.

Cyberbullying is illegal in Florida as well as in states across the country and can result in criminal charges. Generally speaking, cyberbullying is a crime most prominent among young adults, teenagers, and preteens. It is a crime of the generation; social media platforms are becoming increasingly popular “weapons” for teenagers to bully one another.

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