50 disCoverABility of Cell. pHone dAtA in motor ..... internet, smart phones, and social networks. âTechnology has res
LAWYER THE HILLSBOROUGH COUNTY BAR ASSOCIATION TAMPA, FLORIDA | MARCH - APRIL 2017 | VOL. 27, NO. 4
THE HILLSBOROUGH COUNTY BAR ASSOCIATION
LAWYER MARCH - APRIL 2017 | VOL. 27, NO. 4
DIVISIONS
8
FEATURES & EVENTS 7 13
3 4
6
A NOD TO OUR JUDICIARY
F$E>>D.EF49F CF$E>>D.EF 49FE#CBF$7F$:0D5.;=CB
31
COFFEE, CONVERSATIONS, AND COLLEGIALITY
34 38 43
0 F(@E>CF$E>>D.E 49F09BE9F 7F3CD@D
8
FEDERAL JUDGE DONALD INSPIRES, CHALLENGES LAWYERS AT DIVERSITY LUNCHEON; MATHEWS NAMED 2016 OUTSTANDING LAWYER
E:5?C#EF C@E:?A@>F$E>>D.EF 49F,A;BF!7F9BE>
10
12
17
THE FUTURE OF CRIMINAL JUSTICE IN HILLSBOROUGH COUNTY
47
49F8A=7F ,FE9E>F E?7
49 49 51 53
!@A6F?;EF3?D?EF2??A@BE9 49F2BFA1F,5>?CBF(E?@E&F(727FDBF'@A64=E9FF'@A64=E9F F*DBE>
I
n modern society, it is not uncommon for people’s actions to be recorded — either with or without their knowledge. License plate readers, red light cameras, public space cameras purchased by local, state and federal agencies, bus and taxi cab videos, police body cameras, and the cell phones of millions of individuals are all capable of recording portions of our lives. As such, criminal practitioners (and trial attorneys in general) must be familiar with the foundational requirements for admitting such evidence. This article will attempt to cover the basics of video evidence admissibility. First, the recording must be relevant.1 Section 90.401, Florida
5"
In other words, Statutes, defines the proponent relevant of the video must evidence as lay a foundation “evidence that the video tending to prove fairly and or disprove a accurately material fact.”2 represents a To meet this material fact or burden, the issue. A common proponent of misconception is the evidence Criminal practitioners that the person must simply (and trial attorneys in who took the identify the video must testify fact for which general) must be familiar in order for it to it is offered with the foundational be admissible; to prove and this is simply demonstrate requirements for incorrect. While that the fact admitting video evidence. the person that is material to took the video the litigation. will certainly For example, have the ability a convenience to testify that it fairly and accurately store video depicting the depicts the events that were captured, commission of a robbery may be anyone who witnessed the recorded relevant because it tends to prove events is competent to sufficiently the identity of the perpetrator as lay the foundation for the recording the defendant. This is the simple to be admitted into evidence. In part and, in my experience, is usually not challenged. H.A. v. State,4 a drugstore employee Second, videos are admissible on the same basis as still photographs.3 Continued on page 25
1879(98,795463
)99-+/8928*0.7
USE OF VIDEO AND SURVEILLANCE VIDEO IN TRIAL Criminal Law Section
Continued from page 24 authenticated a surveillance video. This method of introducing such evidence is known as the “pictorial testimony” theory of admissibility.5 Additionally, video evidence may be admissible under the “silent witness” theory — i.e., when there is no individual videographer available to authenticate the video.6 Under this theory, the evidence may be admitted when the trial court finds it reliable, after having considered the following: (1) evidence establishing the time and date of the photographic evidence; (2) any evidence of editing or tampering; (3) the operating condition and capability of the equipment producing the photographic evidence, as it relates to the accuracy and reliability of the photographic product; (4) the procedure employed, as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and (5) testimony identifying the relevant participants depicted in the photographic evidence.7 In Lerner v. Halegua,8 however, the Third District Court of Appeal that held still photos of frames from a surveillance video were not admissible under either theory. To authenticate the photos at trial, Halegua offered the testimony of Winston, who had taken the photos. Winston testified the photos (taken of frames from his condominium building’s surveillance video) depicted Lerner leaving threatening messages outside his condominium door. In holding that the trial court erred in admitting the photos, the Third DCA noted that Winston did not personally observe the events depicted on the video; had no responsibility for the operation, placement, or maintenance of the video camera; and had no direct knowledge regarding the procedure for retrieving or copying the portions of the video.9 In conclusion, the admission of video evidence is relatively simple. If there is a witness that observed the recorded events, simply lay the foundation through that witness. If there is no such eyewitness, you can still admit the evidence under the “silent witness” theory provided you can establish the relevance and reliability of the video using the factors indicated in Wagner.10 1 2
§ 90.402, Fla. Stat. (2016). § 90.401, Fla. Stat. (2016). 3 Charles W. Ehrhardt, Florida Evidence § 401.3 (2009). 4 H.A. v. State, 24 So. 3d 752 (Fla. 3d DCA 2009). 5 Wagner v. State, 707 So. 2d 827, 829 (Fla. 1st DCA 1998). 6 Id. at 831. 7 Id. 8 Lerner v. Halegua, 154 So. 3d 445 (Fla. 3d DCA 2014) 9 Id. at 447-48. 10 Wagner, 707 So. 2d at 831.
Author: Adam L. Bantner, II - The Bantner Firm 1879(98,795463
)99-+/8928*0.7
5!
OVERCOMING THE IMPOSTER SYNDROME Diversity Committee 8A-8;DC@>%F'C6A?;9F87F$D@?CBF-F$D@?CBF0D)F"11C:E FDB%F,D6CEF$D@:D@CAF-F@
[email protected]'@D5@C.&F(727 FDB>F-F0D)F"11C:E>FA1F89B?;CDF3D>>
O
n December 1, 2016, the Occupational Safety and Health Administration’s final rule regarding employee reporting of work-related injuries and illnesses (referred to as “incidents”) went into effect. 29 C.F.R. § 1904.35(b)(1). The new rule took effect only days after a federal court refused to preliminarily enjoin its implementation while deciding the merits of a lawsuit alleging that the new rule unlawfully obstructs employer safety programs. TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV 1998-L (N.D. Tex. Nov. 28, 2016). While TEXO remains pending in federal court, employers in Florida and around the country should examine their incident reporting procedures, as well as any safety incentive program or post-injury drug testing policy they have in place, in light of OSHA’s new reporting rule. OSHA requires many private employers to submit incidents records. The accuracy of these records depends, in large part, on employees reporting incidents to their employers. With this in mind, OSHA published the final rule, which amends section 1904.35(b)(1) to explicitly require employers to “establish a reasonable procedure” for employees to report incidents and to prohibit retaliation for such reporting. Improve Tracking of Workplace Injuries & Illnesses, 81 1879(98,795463
)99-+/8928*0.7
effect within the Fed. Reg. 29,624 preceding six (May 12, 2016) months, or for (to be codified at a retaliatory 29 CFR pts. act within that 1902 &1904). period. This is The new rule a significant provides that a expansion “procedure is of OSHA’s not reasonable enforcement if it would deter authority or discourage Employers would be well regarding a reasonable advised to examine their retaliation. employee from Section 11(c) of accurately incident reporting the Occupational reporting” procedures and safety Safety and Health an incident. Act already 29 C.F.R. § programs in light of prohibits general 1904.35(b)(1)(i). OSHA’S new rule. retaliation Under the against an new rule, which employee for is currently in reporting a effect, OSHA violation of the Act, but OSHA may cite employers for using safety cannot take action under that incentive programs that reward provision unless an employee employees for having few or no files a retaliation complaint within incidents, because such programs 30 days of the adverse action. deter employees from reporting 29 C.F.R. § 1977.3. The new incidents. 81 Fed. Reg. at 29,673. rule allows OSHA to cite employers Moreover, if an employee reports who retaliate against reporting an incident and is subsequently employees anytime within six denied a benefit under the safety months of the adverse action, incentive program, this constitutes regardless of whether an employee retaliatory action against the files a complaint. employee. Id. at 29,674. Although the ultimate validity Similarly, OSHA views and construction of the new rule is mandatory post-incident drug unclear, it is currently in effect and testing as an adverse action that enforceable against many employers. discourages incident reporting. So employers would be well advised Id. at 29,673. Under the new to examine their incident reporting rule, post-incident drug testing is procedures and permissible only when there is a safety programs reasonable possibility that drug in light of use by the reporting employee OSHA’S contributed to the reported new rule. incident, or where state, federal, or workers’ compensation laws require the testing. Id. Author: Benjamin S. The new rule allows OSHA to Briggs - Trent cite employers for an unreasonable Cotney, P.A. reporting procedure that was in "6
ARE WE GIVING THE PAYOR SPOUSE CREDIT WHERE CREDIT IS DUE? Marital & Family Law Section 8;DC@%F,C==F0A)EF-F,C==F7F0A)EF(727
D
uring a marital dissolution proceeding, a spouse may seek an award of temporary alimony. See § 61.071, Fla. Stat. (2016). In lieu of awarding temporary alimony, the court may (in certain circumstances) order a spouse that vacated the marital home to continue paying the same household expenses for the spouse remaining in the home. Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972). If such an award is made, should the monies paid for household expenses be considered income to the recipient for purposes of calculating temporary child support? Should the payor spouse be allowed to deduct the payments from his income for purposes of calculating child support, like he would if they were categorized as alimony? Section 61.30(2)(a)(13), Florida Statutes, defines income, for purposes of determining child support, to include “reimbursed expenses or in-kind payments to the extent that they reduce living expenses.” Based on that definition, payments made to maintain the other party should be included in the recipient spouse’s income for
per the IRS. purposes of Amounts paid calculating on behalf of the temporary other spouse child support. for utilities, if Likewise, designated as under section alimony, can 61.30(2)(3)(g), be deducted. Florida Statutes, So, some of “spousal support the temporary paid pursuant to payments of a court order Should monies paid household from a previous expenses arguably marriage or the for household expenses can be deducted marriage before be considered income by the payor the court” is an spouse. allowable income to the recipient? “[T]emporary deduction. So awards are among payments made the areas where to maintain the trial judges have status quo should the very broadest discretion.” be deducted from the payor spouse’s income for purposes of calculating Aziz v. Aziz, 45 So. 3d 975, 978 child support. (Fla. 2d DCA 2010) (quoting If these payments are considered Driscoll v. Driscoll, 915 So. 2d 771, income to the recipient spouse and 773 (Fla. 2d DCA 2005) (alteration excluded from the payor spouse’s in original)). Appellate courts are income for purposes of calculating reluctant to reverse a temporary temporary child support, are the order. Id. As such, it is important payments tax deductible? In order for practitioners to make sure for the Internal Revenue Service that any payments made from to consider a payment as alimony one spouse for the benefit of the (temporary or permanent), the other is credited appropriately parties cannot reside together and when calculating child support. the payments must be in cash (not At the very least, the payor should a service), via a written instrument receive a (court order), designated as alimony, deduction from terminate upon the recipient’s death, income for the and not be designated as child payment of support. See Publication 504, household expenses. Divorced or Separated Individuals. But if the parties own their home jointly, only half of the mortgage Author: Eliane payments (principal and interest) I. Probasco paid directly can qualify as alimony Probasco Law, P.A.
Get active with the HCBA by joining a Section or Committee.
"5
1879(98,795463
)99-+/8928*0.7
Marital & Family Law Luncheon and CLE Nora Bergman of Real Life Practice spoke to the Marital & Family Law Section during its luncheon on January 18 about methods that increase productivity, decrease stress, and get more done in less time. After the luncheon, local attorneys David Townsend, Paul Maney, Mark C. Mann, and Amy D. Singer presented a four-hour CLE regarding standards and techniques for collection, enforcement and modification of final judgements. The section would like to thank its sponsor:
1879(98,795463
)99-+/8928*0.7
"
VTC MENTORS AT WORK Military & Veterans Affairs Committee 8A-8;DC@>%F$D??F*D==FF*C==FD@
