Neutral Judges

A trial court owes a duty of neutrality to the parties and may not favor one side or the other. J.L.D. v. State, 4 So. 3d 24, 26 (Fla. 2d DCA 2009).  Over the course of my career, I have conducted numerous trials where lawyers/prosecutors try and introduce evidence without first establishing the proper foundations. When I was a young Assistant Public Defender, one of my mentors gave me a checklist with all of the proper foundation questions that are required to introduce different types of evidence in trials. I immediately recognized that this sheet was worth more than its weight in gold. In every trial, I have my checklist ready so I can make the proper objections to exclude improper evidence. But what do you do, when you make an objection and the Judge agrees with the objection but tells the opposing side to lay the proper predicate for evidence.

Broward Criminal Defense Attorney Neil Kerch preparing Evidence Objections for Trial.

Any attorney who has conducted trials has come across this situation numerous times. Is the Judge now departing from neutrality to tell the other side how to overcome your objection? Is the Judge departing from Neutrality?

The Florida Appellate Court for the Fourth District recently decided M.W. vs The State of Florida. In that case, the State charged M.W. in a one-count petition for delinquency after M.W. was arrested for shoplifting headphones at an Apple Store. According to statute, “if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft in the first degree.” § 812.014(2)(e), Fla. Stat. (2017). At trial, the State was examining the store security officer who arrested M.W. when the following exchange occurred:

WITNESS: We basically, because he is a juvenile we have [to] call the parent. And the fact that the amount was 299.95 —

DEFENSE: Objection, hearsay.

JUDGE: Establish how he knows.

STATE: Your Honor, he has personal knowledge.

JUDGE: Establish.

Thereafter, the State asked the appropriate set of questions to establish the value of the headphones at $299.95. On appeal, M.W. argues that this exchange shows the trial judge entering the fray to an impermissible degree in order to establish a key fact of the proceeding. Conceding that the defense at trial lodged no objection to the trial court’s participation in this exchange, M.W. further argues fundamental error.

The Appellate Court turned to  J.L.D. v. State, 4 So. 3d 24, 26 (Fla. 2d DCA 2009) for guidance. In J.L.D., a juvenile was adjudicated delinquent for grand theft of a motor vehicle. During the restitution phase of the trial, the trial judge took over the questioning of witnesses in an effort to establish the amount of damages. The Second District concluded that the trial judge “departed from a position of neutrality in an attempt to elicit testimony in support of the restitution award.” Id. at 26. The Second District, however, determined that the error was harmless because the trial court’s conduct did not increase the restitution award. Id.

The Appellate Court also looked at Lyles v. State, 742 So. 2d 842, 843 (Fla. 2d DCA 1999). In Lyles the Second District determined that a trial judge, in a probation revocation proceeding, “committed fundamental error by sua sponte ordering Lyles’ fingerprints for the purpose of identification and bifurcating the hearing to allow additional testimony.” Id. at 843. The extent to which the trial judge intruded in the proceeding led the Second District to conclude that the defendant was deprived of an impartial judge. Id.see also Sparks v. State, 740 So. 2d 33, 36 (Fla. 1st DCA 1999).

M.W. cites to both J.L.D. and Lyles to establish that a trial judge’s decision to enter the fray may rise to the level of fundamental error. M.W. supports these cases with several, other non-fundamental error cases that confirm the proposition that a trial court may not breach neutrality. See Seago v. State, 23 So. 3d 1269, 1272 (Fla. 2d DCA 2010) (holding that it was improper for the trial judge to suggest to a witness that her testimony must be identical to that of her pretrial deposition); Evans v. State, 831 So. 2d 808, 811 (Fla. 4th DCA 2002) (holding that the trial judge impermissibly suggested during cross-examination that the prosecution inquire into defendant’s immigration status); Asbury v. State, 765 So. 2d 965, 965 (Fla. 4th DCA 2000) (holding that, at a suppression hearing, the trial judge impermissibly prompted the State to present evidence and recall witnesses).

The Appellate Court decided that the trial judge in M.W. vs The State of Florida did not enter the fray to an extent or a magnitude close to the intrusions of the trial judges in M.W.’s cited cases. In this instance, the trial judge merely told counsel for the State to lay a proper predicate for the evidence the State knew it was required to present. The trial judge neither asked a question of the witness nor told the State which question to ask of the witness. In other words, the trial judge did not cross a line and assume the role of the prosecutor. The Court determined that the judge’s conduct fell within a trial court’s latitude to regulate the course of a trial in his courtroom. Hahn v. State, 58 So. 2d 188, 191 (Fla. 1952); R.W. v. Dep’t of Children & Families, 189 So. 3d 978, 980 (Fla. 3d DCA 2016). It also fell within the right of a trial judge to “exercise reasonable control” over the interrogation of witnesses. See § 90.612(1), Fla. Stat. (2017).

Although the Judge was permitted to regulate the course of a trial, it is important to make the objection anyway. I have found that other lawyers/prosecutors sometimes don’t have a checklist with all of the proper foundation questions that are required to introduce different types of evidence in trials and/or don’t remember all of the proper foundation questions. Although the Judge can tell him to lay a proper foundation, he cannot tell him what the foundation questions are.

Avoiding a Violation of Probation

Unlike some states, Florida does not give credit for the time spent on probation, nor is the jail or prison time limited to the amount of time the person has remaining on his probation. This is a common myth. However, sometimes, with the help of a competent attorney, some defendants may be able to persuade the Judge to reinstate them to probation if they’ve taken all steps possible to mitigate their violation.

Probation is expensive. In addition to the $55 monthly fee, presumptive breath tests for alcohol are roughly $15 each; urine screenings for drugs are at least $25 each. If someone’s probation requires them to be electronically monitored, that fee is roughly $105 per week depending on what county they are in.

Not adhering to any one of the conditions of probation can result in re-arrest and serious consequences. Depending on the Judge, those consequences may include jail or prison time. It doesn’t matter how long someone has been on probation. If a person is in their 23rd month of a 24-month probation, if they’ve violated their probation, they may be sent to jail or prison for the same term of incarceration they could have been sentenced, and sometimes more, for the original charges

If someone is genuinely struggling financially and can’t pay their cost of supervision or their court cost, they should tell their probation officer. The probation officer may submit a request to the court to either lower the costs of supervision or even ask the court to waive it.

A judge may also impose a “lien” for court costs or fines if a person cannot pay these costs. If a lien is imposed the probationer must set up a payment plan within a set period of time from sentencing otherwise their driver’s license privileges will be suspended. To qualify for a lien, the probationer must be looking diligently for work, have a job or be going to school.

As a rule, people do not go to jail for not being able to meet the financial obligations of probation. The standard for a violation of probation is it must be “substantial and willful.”

Someone who is on probation should not associate with convicted felons or “hang out” at certain bars or other locations that are known places where illicit substances are sold.

This brings up reporting interaction with police. Every month people on probation check in with their probation officer and fill out a questionnaire. One of the questions is about whether they have come into contact with a law enforcement officer.

Sometimes, this question sets off alarms. People may be afraid that if they report having interacted with a police officer they will automatically violate their probation.

However, if someone fails to disclose contact with police to the probationer may be considered as being less than truthful with their PO, even for not revealing a simple civil infraction/speeding ticket. This may subject them to
being violated for not telling the truth to their probation officer. It’s almost as bad as getting arrested for a new offense.

Be honest. Simply reporting a crash or civil infraction, will not get a person’s probation violated. On the other hand, if a probationer gets a criminal traffic citation or even a notice to appear on a criminal misdemeanor, say, for example, for misdemeanor marijuana possession, they most likely will have a VOP warrant issued against them.

Failing a drug or alcohol test is almost certain to land a probationer in jail with a likelihood of not being given a bond.

There are occasions when someone has technically violated probation but their PO will set up a meeting with the Judge where the probationer will be reprimanded and if this same behavior happens again, their probation will be violated.

If you are accused of violating your probation, your best option is to contact Criminal Defense Attorney Neil C. Kerch so I can defend the matter on your behalf.


This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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