What You Say Can Be Used Against You (Even Before You’re Arrested)

A little over a year ago, as this NY Daily News article describes, a Florida teenager, allegedly “high” on synthetic marijuana, struck a bicyclist who died from the sustained injuries. Right after the crash, witnesses of the crash approached the dazed and confused teen by the side of the road and asked him some questions about the events that had just transpired.
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Cognizant enough to answer simple questions, the teenager acknowledged that he was behind the wheel of the vehicle that hit (and killed) the bicycling father of three and also that he was “high” when he did so. The self-incriminating video was used by prosecutors as evidence – evidence that was key to convicting the teenager and putting him in jail.

The experienced Florida criminal defense attorneys at Leifert & Leifert know all too well the power of one’s words. When arrested, an arrestee is told by officers that what he says can and may be used against him in court. As it turns out, though, what you say even before you’re arrested can also be used against you.

This case, specifically the fact that video of the teenager acknowledging his actions ended up being one of the strongest pieces of evidence used against him, raises all types of questions about the protection of privacy under Florida law. To begin with, let’s briefly address the complex problem of the teenager’s metal capacity at the time of the video recording. It is plausible that the fact that he was unable to make coherent decisions, like the major decision to admit to manslaughter and DUI, render the videotape inadmissible in court, given the 5th Amendment, which guarantees defendants the right to not offer testimony incriminating themselves.

That said, a look at the existing law in Florida can shed some light on why this video might have been admitted as evidence and why other types of recordings are not admissible as evidence.

As is explained in Florida State Statute 943.03, it is unlawful to record private conversations taking place within a private setting (residence, apartment, hotel room, etc.) without the prior consent of both parties. For example, last year in the run-up to the presidential election, a caterer secretly taped Mitt Romney privately speaking to a group of donors in a private home in Florida.

According to Florida law, the caterer broke the law when he filmed and recorded the candidate and donors without their permission. Similarly, had the teenager involved in the fatal crash gone home after the incident and told his friend what he had done, one of his roommates would not be allowed to record the conversation and send it to the police. Not only would a recording of that nature not be admissible in court, the person who made the recording could be charged with breaking the law.

However, if law enforcement officers have court-ordered authorization to wiretap a suspect in his private dwelling, they may do so, and they may request that another individual record a certain private conversation if it is in cooperation with the ongoing investigation.

Florida law, while strict on protecting the privacy of those in private, makes exceptions for conversations that take in public. The law allows for a recording of a conversation that takes place in public if the person being recorded is speaking in a manner such that they should reasonably expect that they might be overheard. (Again, there is the issue of whether the synthetic marijuana hindered the teenager’s ability to make such a reasonable expectation, but that is an issue for another piece.)

Thus, because the teenager was asked the pointed questions, and gave the damning answers, in public, the video was allowed as evidence and turned out to be vital to the prosecution’s case against the youngster, who will serve years behind bars followed by a decade of probation.

Be careful of what you say and where you say it. You should expect privacy in your home, but not at the park, not at a sporting event, and not at a parade, etc. While Florida law includes many provisions that can be used to the advantage of the defendant, when audiotape or videotape containing the defendant admitting to the crime is used in court by the prosecution, a legal defense effort might be futile. Make sure to protect yourself so that should you ever need a legal defense one may be of value to you.

If you are charged with a crime in Palm Beach or Broward counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.

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