Attorney Adam Pollack recently posted a not-guilty verdict that was obtained on behalf of his client. This demonstrated that Adam is willing to go to trial for his clients and fight for their rights all the way to a jury verdict. However, those victories come from many years of preparation and knowing the rules of evidence to make sure that only proper evidence is heard by the jury. We will focus in the next few posts on some of the most important rules, both state and federal, and how they may affect your criminal case.

The general rule is that evidence of a person’s character or trait of character is NOT admissible to show that they acted in conformity on a particular occasion. This simply means that you cannot introduce evidence of past conduct to show that in this particular case the defendant acted in the same way.

However, like every rule of evidence, there are countless exceptions and ways to get character traits into evidence to help your case. When it involves other crimes or wrongs, they might be admissible to show motive or intent and other reasons listed in the statute below.

The exception that we see being used most often in our practice is Florida Statute 90.404 2 (b) and (c). This law allows evidence to be admitted if the defendant is facing child molestation or a sexual offense. Evidence of any other similar crimes would be admissible if the judge determines that the relevancy outweighs the harm.  Inevitably, this creates many opportunities for the judge to make incorrect legal rulings.  This is critical for a defense attorney to know and plan for when preparing a jury trial in a sex crime case. As a skilled criminal trial attorney, I prepare for the possibility that the judge will not make a correct legal ruling and still do my best to obtain for my clients a not guilty verdict.

This is exactly what occurred a short time ago when the judge allowed evidence of dismissed injunctions into a trial. Rather than panicking about the judge making a bad legal ruling, I used this to my client’s advantage and boxed the alleged victim in when she made a bold claim that on the day of the alleged felony battery she had no idea that she had a problem in her relationship with her boyfriend (my client).  Not only did she appear to be unbelievable to the jury, the skillful cross examination ended up producing the reasonable doubt that the jury needed to find my client Not Guilty.

Make sure that your criminal defense attorney is a Board Certified Criminal Trial lawyer like Attorney Adam Pollack. Call him today at (407) 834-5297.

90.404 Character evidence; when admissible

(1) CHARACTER EVIDENCE GENERALLY.—Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:

(a) Character of accused.—Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.

(b) Character of victim.

1. Except as provided in s. 794.022, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or

2. Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.

(c) Character of witness.—Evidence of the character of a witness, as provided in ss. 90.60890.610.

(2) OTHER CRIMES, WRONGS, OR ACTS.—

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

(b)1. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

2. For the purposes of this paragraph, the term “child molestation” means conduct proscribed by s. 787.025(2)(c), s. 787.06(3)(g), former s. 787.06(3)(h), s. 794.011, excluding s. 794.011(10), s.794.05, former s. 796.03, former s. 796.035, s. 800.04, s. 827.071, s. 847.0135(5), s. 847.0145, or s. 985.701(1) when committed against a person 16 years of age or younger.

(c)1. In a criminal case in which the defendant is charged with a sexual offense, evidence of the defendant’s commission of other crimes, wrongs, or acts involving a sexual offense is admissible and may be considered for its bearing on any matter to which it is relevant.

2. For the purposes of this paragraph, the term “sexual offense” means conduct proscribed by s. 787.025(2)(c), s. 787.06(3)(b), (d), (f), or (g), former s. 787.06(3)(h), s. 794.011, excluding s.794.011(10), s. 794.05, former s. 796.03, former s. 796.035, s. 825.1025(2)(b), s. 827.071, s.847.0135(5), s. 847.0145, or s. 985.701(1).

(d)1. When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), paragraph (b), or paragraph (c), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant’s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.

2. When the evidence is admitted, the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered. After the close of the evidence, the jury shall be instructed on the limited purpose for which the evidence was received and that the defendant cannot be convicted for a charge not included in the indictment or information.

(3) Nothing in this section affects the admissibility of evidence under s. 90.610.