Articles Posted in Attorney Richard Ansara

Witness testimony is perhaps one of the most powerful – and fallible – types of evidence presented in a Florida criminal trial. One of the most important jobs of a Fort Lauderdale criminal defense attorney is not just to examine the potential weakness in that testimony, but also the competency of each witness. Fort Lauderdale criminal defense attorney

As established in the 1928 Florida Supreme Court case of Crockett v. Cassels, a witness must be competent in order to testify in a trial, meaning he or she must be both capable and qualified. That means, as noted in the 1990 case of Rivet v. State and as outlined in in F.S. 90.603, that one is has both sufficient intellectual capacity to understand the nature and obligation of the oath and the ability to perceive, remember and communicate accurate sensory perceptions to the court. This ability is presumed unless proven otherwise by competent evidence. Witnesses may be disqualified if they are unable to:

  • Communicate to the jury;
  • Understand the duty to tell the truth;
  • Perceive and remember events.

A person’s immaturity (being a child) and mental illness or mental disability won’t necessarily disqualify a witness, but as a Fort Lauderdale criminal defense attorney can explain, courts are required to carefully consider one’s threshold in intellectual ability when weighing whether to allow them to testify. Continue reading

Plea bargains, as Fort Lauderdale criminal defense attorneys can explain, have rapidly become the standard resolution in most criminal cases, both at the state and federal level. The U.S. Supreme Court estimates more than 9 in 10 federal and state criminal cases are resolved by plea bargain. This rise has resulted in the previously uncommon practice of defendants appealing convictions for charges on which they already pleaded guilty. So now many prosecutors insist defendants sign appeal waivers as part of the deal. criminal defense lawyer

The Supreme Court of the United States (SCOTUS) is now reviewing a case that stems from this very issue. The outcome in Garza v. Idaho could well impact how criminal plea bargains are resolved both in federal court and within Florida state courts. It’s one most criminal defense attorneys, prosecutors and judges are watching carefully.

The defendant alleges that his trial lawyer’s counsel was inefficient because when he refused to file an appeal as defendant requested, citing the waiver. The court is being asked whether the defendant needs to prove prejudice in order to establish his lawyer’s counsel was not effective. Back in 2000, the SCOTUS ruled in Roe v. Flores-Ortega that prejudice by an attorney can be presumed if a lawyer doesn’t file an appeal at the behest of a defendant. However, given that the case is almost 20-years-old and didn’t involve an appellate waiver, new questions have bubbled to the surface about whether this standard still fits.  Continue reading

Police and other law enforcement officers are increasingly asking people to turn over their cell phones, whether in the course of a traffic stop, after a motor vehicle collision or in the course of investigating the crime. A record number of people in America now have smartphones – nearly 80 percent according to Pew Research Center, which further noted among 18-to-29-olds, smart phone ownership exceeded 92 percent.

It should be obvious why investigators want to get their hands on these devices: They are a treasure trove of information and can make their jobs a whole lot easier. It’s hard to imagine even just a few short years ago, cell phones were solely verbal and texting communication devices. Now, they contain scores of sensitive and personal information, including calendars, emails, personal and professional contacts, music files, verification of recent purchases, bank records, public social media engagement (including personal messages) work files, browser history of  recent websites and of course saved photos and videos. This is not information you want – or usually that they never need – to see.

As Fort Lauderdale criminal defense attorneys  at The Ansara Law Firm can explain, the 4th Amendment to criminal defense attorneythe U.S. Constitution protects people from unreasonable searches and seizures. There are numerous reasons why cell phone information should remain private – not the least of which for a potential defendant is the fact that it could give police and prosecutors key evidence against you. But even if you have nothing to hide, it’s generally unwise to simply hand your phone over on request. Plus – you aren’t required to do so unless the officer has a warrant.  Continue reading

Criminal defendants in Florida have the right to a defense attorney in any criminal proceeding. It’s one of the fundamental rights guaranteed by the U.S. Constitution (the Sixth Amendment in particular), with the U.S. Supreme Court applying this right to state-level criminal proceedings in the 1963 case of Gideon v. Wainwright. Further, deprivation of a defendant’s right to a criminal defense attorney or denial of a choice of attorney absent good cause should result in the reversal of a criminal conviction, per the U.S. Supreme Court’s 2006 ruling in U.S. v. Gonzalez-Lopez.criminal defense lawyer

Unfortunately, the government (law enforcement investigators in particular) do not always go to great lengths to fulfill this duty to make counsel available – particularly at key times pre-trial, such as during questioning and interrogation.

That’s reportedly what happened recently in a case, Baskin v. State that resulted in a Florida homicide conviction in Manatee County. According to Sunshine State News, Florida’s 2nd District Court of Appeal reversed the conviction and ordered a new trial for a man convicted of second-degree murder and sentenced to 30 years in prison for the death of a woman in Bradenton in 2012. Authorities, in the course of their investigation, reportedly discovered decedent had been romantically involved with defendant and that he was a frequent guest in her apartment, where her body was discovered.  Continue reading

There is an inherent interplay between criminal and immigration law that has recently come under an intense spotlight since the Trump administration has taken a hard line on immigration policies,. This includes aggressive action by immigration authorities to initiate proceedings against those with decades-old criminal convictions for non-violent crimes. In the past, that usually involved recent convictions for felonies – violent crimes in particular – and typically only undocumented immigrants.criminal defense

However, as the Miami Herald reported recently, even documented immigrants, such as those holding green cards who have green cards and are long-time residents, aren’t immune. In fact, this is now policy per new guidelines passed earlier this month by U.S. Citizenship and Immigration Services have indicated that immigrants who abuse any program that is related to acceptance of public benefits can be brought before an immigration court and subject to removal if evidence of fraud or willful misrepresentation is established. Under this new guidelines, immigration officials actually have expanded authority to issue Notices to Appear, which is what starts the whole deportation process.

Since the 2010 U.S. Supreme Court case of Padilla v. Kentucky, criminal defense lawyers have been required to advise non-citizen clients about the possible immigration consequences that may result from acceptance of a guilty plea. Failure to do so amounts to a violation of one’s Sixth Amendment guarantee of effective counsel. A violation on this front can be grounds for post-conviction relief, including possibly a modification of one’s criminal sentence or a new trial.  Continue reading

A substantial number of criminal cases that are prosecuted in Florida result in some type of conviction by way of a plea bargain. As noted by the American Bar Association, this typically involves prosecutors offering a deal that allows the defendant to plead guilty to a lesser crime than what was originally charged. However, many of these are not truly “bargains” at all. A dedicated, experienced criminal defense attorney should carefully weigh whether you might be better served taking the case to trial. If not, he or she should be skilled and adapt at the plea bargain negotiation process.plea bargain attorney

The issue with the plea bargain process is that, as noted in a recent analysis by The Atlantic, innocence isn’t always relevant to the outcome – particularly if you don’t have a good lawyer defending you. Approximately 94 percent of state-level criminal felony convictions and 97 percent of federal felony convictions are the result of a plea bargain. Estimates for misdemeanor cases are even higher. This highlights something our Fort Lauderdale defense attorneys often must explain to our clients: The vast majority of criminal cases don’t go to trial. Of course, those figures don’t include cases wherein the charges are dismissed prior to the trial or plea bargaining phase. But this is a reality that was underscored in the 2012 U.S. Supreme Court ruling of Missouri v. Frye, an important case that helped establish a defendant’s right to competent counsel when they are extended a prosecutor’s plea bargain.

Plea bargains can absolutely be advantageous to a defendant, particularly when the weight of the evidence against them is substantial. It’s also less costly for taxpayers because it costs a great deal of time and money to hold a criminal trial. But here’s the other thing plea bargains can do: Compel you to plead guilty to a crime you didn’t commit. Continue reading

People in the U.S. have a number of Constitutional rights that ensure (among other things) due process as they go about their lives. One of those, as outlined in the Fourth Amendment to the U.S. Constitution, is the freedom from unreasonable search and seizure. It has long been established that warrants are generally required to initiate a non-consensual search of one’s person or property. However, there is an automobile exception that allows warrantless searches if the vehicle is traveling on a public road and the law enforcement officer has reasonable suspicion of a crime. criminal defense attorney Fort Lauderdale

Now, in what’s being hailed a win for privacy rights, the U.S. Supreme Court has just handed down an 8-1 decision holding police are not allowed to search the area around a private home absent a warrant – even if they believe they’ve seen stolen property on site. A motorcycle in a driveway was was started this particular case.

Officers at a county police agency in Virginia say they attempted to initiate a traffic stop of a motorcycle rider on two different occasions, but both times, the driver evaded. Police were able to learn from those encounters that the motorcycle in question was stolen. A suspect was identified, based on Facebook photos the suspect had posted of the motorcycle in question, which was parked at suspect’s girlfriend’s home. An officer went to that location, where a motorcycle was spotted – covered by a tarp – in the driveway. The officer – who did not have a warrant and was not invited onto the property – removed the tarp. Based on the information he gathered, he identified the bike as stolen and arrested the suspect – who claimed he purchased the motorcycle without a title. He was charged with receiving stolen property. Continue reading

Under Florida’s controversial new “red flag” law, passed after the deadly shooting at a Parkland High School, law enforcement agencies in Broward lead the state in arrests for violations.criminal defense attorney

The Red Flag gun law was passed March 5th, designed to allow local law enforcement agencies to seize weapons from individuals who suffer from emotional or mental health issues or those who display certain problem behaviors that indicate posing a direct danger to others. Florida is one of just a few states to pass such a law, and many have been critical of it as a knee-jerk reaction.

From the standpoint of a criminal defense lawyer, the concern is individuals who have committed no crimes may be targeted by law enforcement in a manner that not only infringes upon their Second Amendment rights, but could make them vulnerable to arrest – not only for this, but potentially other unrelated charges. Throughout this process, our goal is to ensure our client’s Fourth Amendment rights (shielding against unreasonable search and seizure) are fiercely protected. It is unlawful for any evidence obtained from a lawful search to be introduced into court (this evidence is often referred to in legal terms as “fruit of the poisonous tree”).  These searches may lead to evidence used to assert another crime – but only if that evidence was gleaned lawfully. Continue reading

Following the mass shooting at a South Florida high school in February, Florida became the sixth state to pass a so-called “red flag law,” something numerous other states are also examining. criminal defense attorney

Sometimes also referred to as a “risk warrant law,” this measure approved by state legislators last month give police officers the authority to temporarily remove guns and ammunition from individuals who display warning signs of violence to themselves or others. Floridian Sen. Marco Rubio has said he plans to introduce similar legislation at the federal level that would allow close family members and law enforcement the ability to obtain a court order to bar future gun sales to someone who might pose a threat. Backers of red flag laws say they can help drive down the number of gun-related injuries and deaths, including suicides. Opponents say they deprive citizens of their Second Amendment rights without due process.

Before Florida, five other states (Washington, Oregon, Indiana, Connecticut and California) had laws on the books enabling officers to seize firearms after receiving notice that a person with access to deadly weapons may pose a danger to themselves or others. It’s not clear exactly how effective these laws are (it’s difficult to opine the number of crimes prevented). We do know that in Connecticut, an average of seven guns were seized from every one person targeted from 1999 to 2013.  Continue reading

Florida lawmakers are considering a pre-arrest diversion program – something many counties and judicial circuits already offer – that would be uniform throughout the state. HB 1197 and companion bill SB 1392 would create two separate pre-arrest diversion programs in each judicial circuit in Florida.criminal defense attorney

The measure calls for a diversion program for adults and another for juveniles. The basic goal is to offer certain misdemeanor offenders the opportunity to complete community service, drug treatment and other requirements in lieu of sending their case down the criminal justice pipeline. Those who fail to successfully complete the diversion program requirements would be adjudicated through the typical process. However, those who are successful would have the opportunity to avoid a criminal record entirely, and could have record of their arrest sealed or expunged.

The bill would grandfather in existing diversion programs, so long as it was operational before the measure passed and new programs will be allowed so long as the state attorney determines it will be in compliance with the state law. Supporters of the measure say that while many circuits do already have such programs, the lack of consistency is problematic. Introducing a uniform framework with specific guidelines for law enforcement and prosecutors will streamline the process.  Continue reading

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