One of the fundamental pillars of justice in America is that the defense is entitled to evaluate all testimony at trial thru the process of cross-examination. The constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” This is known as the Confrontation Clause (which tho we are near Christmas has little to do with the Clause known as Santa).

For many years the Supreme Court allowed prosecutors to present evidence in an indirect manner which avoided the necessity of having witnesses confronted at trial, filtering even to our Criminal Justice Center in Clearwater Pinellas County, Forida where lab reports were found to be sufficient without testimony. However, the Supreme Court has begun to shift in favor of Defendant’s rights to cross-examine witnesses especially where expert witness testimony is proffered thru reports rather than with the actual witness at trial. Interestingly for your favorite Pinellas Crime Lawyer & Supreme Court Spectator, it seems to be driven by the conservative wing of the Court.
Part of the underlying reasoning for this shift as earlier entries in this blog have shown is the failure of Government forensic laboratories to give unbiased results.

The Confrontation Clause of the Sixth Amendment is a focal point of recent litigation. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).  Listen to arguments of the case, see also for more Supreme Court audio arguments.
The Court’s opinion in Williams v. Illinois, argued December 6, should be announced soon: Is it a violation of the Confrontation Clause to allow an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial.          
The First Circuit recently vacated a conviction over lack of confrontation (Ramos-Gonzlez)… In this cocaine case the government adds substitute chemist Morales to the witness list shortly before trial.  Morales is called by the government testifying to the work of the previous chemist as the prosecutor failed to have Morales do his own testing… The Court stated that, “Morales’s testimony was neither cumulative of nor sufficiently corroborated by alternative evidence, and it comprised the only compelling basis for the jury to conclude a critical element of the government’s case—that the substance seized from the truck was cocaine. We cannot conclude that the presence of cocaine would have been proved without the testimony of Morales, and therefore the admission of his testimony was not harmless beyond a reasonable doubt.” 


The Fifth Amendment of the U. S. Constitution prohibits the government from prosecuting individuals more than once for a single offense and from imposing more than one punishment for a single offense. The Constitution states, “No person shall . . . be subject for the same offense to be twice put in JEOPARDY of life or limb;” this is known as the Double Jeopardy clause.
Florida has its own constitutional double jeopardy provision which does not prohibit a defendant’s retrial when a prior trial has been concluded by mistrial because of a HUNG JURY (see Lebron v. State, 2001 WL 987233, 26 Fla. L. Weekly S553 (Fla. 30, 2001); West’s F.S.A. Const. Art. 1, § 9). Lebron v State pdf

A jury’s verdict of acquittal terminates jeopardy. An acquittal cannot be overturned on appeal even if later overwhelming proof of a defendant’s guilt is found or even if the trial judge committed reversible error in ruling on an issue at some point during the proceedings.
Double jeopardy embodies within each sworn jury the power to nullify an inappropriate prosecution. The power of the government is is checked because each jury possess the power to correct corruption of the legal system by law enforcement, government officials, confidential informers, prosecutors, state attorneys, and even judges themselves
A jury can also implicitly ACQUIT a defendant when it is instructed by the judge on the elements of a particular crime and on a lesser included offense, if the jury returns a guilty verdict as to the lesser offense, a second prosecution for the greater offense is barred by the Double Jeopardy Clause. 

Double Jeopardy
Criminal Defense Attorney and Trial Lawyer Pinellas, St. Petersburg, Clearwater, FL
Federal Crimes Trial Lawyer & Criminal Defense Attorney in Pinellas, St. Petersburg, Clearwater,Fl
JEOPARDY! Alex Trebek
Bill of Rights 
Annotated Constitution Fifth Amendment

Why are the two men at the left with arms raised so upset? “I didn’t say Double Jeopardy…we ordered Double Espresso…” Can you find Ben Franklin? Good thing he didn’t bring that kite of his.
File:Scene at the Signing of the Constitution of the United States.png


Federal Criminal Law attorneys often lament the lack of real bargaining power in plea agreements between the Government and Defendants in the Middle District of Florida – and in the case below the Southern District of Florida – often resulting in lopsided plea agreements with bloated provisions which require Defendants to waive their right to appeal among other unsavory actions. Usually, the result is catastrophic for an effective federal appeal should there be any subsequent sentencing issues in need of resoulution. In the case below the waiver of appeal in a Plea Agreement bites the Governments hand allowing the 11the Court of Appeals to reject the Government’s attempt to increase the Defendant’s sentence upon appeal.

United States v. Arthur Smith, No. 10–15044 

( September 7, 2011) Appeal from the United States District Court for the Southern District of Florida Panel: Tjoflat, Carnes, and Fay, Circuit Judges. Carnes, Circuit Judge: Affirmed Writing that “sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants,” the Eleventh Circuit yesterday refused to allow the government to withdraw its previously filed brief – in which it had argued that appellant Smith’s appeal waiver applied to preclude relief – and refused the government’s request to vacate the sentence and remand for resentencing under the Court’s recent decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The Court held hold that claims under the Fair Sentencing Act of 2010, like any other type of sentence claim, can be waived by a knowing and voluntary appeal waiver, noting that “a waiver would be worthless if it covered only issues that lacked merit.” Because it found that Appellant Smith’s appeal waiver was knowing and voluntary, it affirmed his sentence. The full text of the decision can be found here: 

Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida