Podcast Transcription
(00:03):
Telling it like it is bringing the community together and working for justice, attorney, Travis McConnell, talk politics, trending news, and how you can make a difference. You’re listening to We Trust Travis.
(00:20):
Hi everyone. I’m Sarina Fazan, I’m a journalist, host, and producer. Thank you so much for joining us for this episode of We Trust Travis. Travis McConnell is a personal injury attorney with a huge passion for the community, and he has a lot of insight to share. So let’s get right to it. Travis is joining us from Indiana and sitting next to me in the studio is criminal defense expert. Paul Cisco, Paul, thank you so much for being here. Thank you, Travis. How are you
(00:45):
Doing well, Sarina. Thanks for having me again. And thanks for hosting.
(00:49):
Thank you. And just hear a little bit about yourself, Travis. You of course, practice law here in the state of Florida, but you’re also in Indiana. So tell us about yourself.
(00:58):
Yeah, so I’m an attorney. That’s licensed in two states, Indiana and Florida first was licensed in Florida and lived there for seven, eight years. And then I’m originally from Indiana. I moved back home to raise my kids closer to their family, and I do predominantly personal injury law and a little bit of criminal defense in the state of Indiana on may, not in Florida because you have to get into the courtroom a lot more often. And I’m mostly in Indiana, nowadays with my kids and family. So
(01:24):
Well, I’m honored to host your show and on this show, you invited Paul Cisco here. Paul, why don’t you first tell us a little bit about yourself before we get into the subject of the show.
(01:34):
Well, thanks always good to see you and Travis. I’ve been practicing in the Tampa bay area 29, 30 years. I do primarily white collar criminal defense, but I also do a general practice criminal defense and do a fair amount of civil also. And I’m happy to be here and happy to see my friend Travis up in Indiana.
(01:52):
Thank you so much fun. And you’re also a former prosecutor, so you can give us both sides.
(01:56):
I am, you know, as, as many of us are here that do criminal defense, we kind of saw how the sausage was made back in the old days when we were prosecutors. And we kind of gotten on the other side and you know, it’s our job to take the sausage apart now or eat it.
(02:10):
Well, I’m looking forward to this show because Travis wanted to discuss what are the U S constitutional amendments, fourth, fifth, and six. And how do they impact you, Travis? Why did you think it was so important to do a show on these specific amendments?
(02:25):
Well, I mean, we wanted to do a show about your rights as a, somebody who’s potentially accused of a crime. And a lot of those rights come from the fourth, fifth and sixth amendments. That’s the kind of the bread and butter of criminal defense law, where a lot of stuff comes from and each state will usually apply them. But usually it kind of mirrors the federal fourth, fifth and sixth amendments in the U S constitution that had been there since the bedrock foundation of our country. They go to unreasonable searches and seizures, your right to remain silent, your right, to have a lawyer there, basically the bedrock foundation of your rights as somebody who’s accused of a crime by the government.
(03:02):
So on that note, Paul, why don’t you break? Why don’t we go through each of these amendments that Travis wanted to delve deeper into? Why don’t we start with the fourth amendment,
(03:14):
You know, just from an overview standpoint, as we look at these you know, the difference really between the American system of jurisprudence and others is it’s never the accused burden to prove their innocence. You know, it’s the government’s burden to prove their guilt or their culpability. And so the fourth, fifth and sixth amendments are what guarantee that, and essentially what it means is the fourth amendment. Going way back to the founding fathers, they saw look before you’re going to be able to search someone’s house, or you’re going to be able to search their possessions. We have to have an independent magistrate look to see whether probable cause exists so that we can get a search warrant to do that. And, you know, that goes to the premise. They were living under a king and in England, they wanted to leave there. So they come here, we’re not going to let some politician or some, you know, a non neutral policemen decide they’re going to come inside our home and just ransack it randomly.
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You have to present, you know, under the fourth amendment, genuine probable cause, prove to me that they’re going to find something illegal there and what it’s based on before I give you this warrant and permission to go in. And so fourth amendment you know case law, which we see on TV as, Hey, that evidence got suppressed. Why did it get suppressed? Sort of a bedrock principle of, of criminal law. The fourth amendment is what protects us from unreasonable searches and seizures, and requires an independent judge or magistrate to look at the evidence before that search can happen. Well times
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Are changing so much. And Travis, you had mentioned that right now, there is a huge concern, correct with electronics and your phone, and can people, can they search your computer or can they search your text? Isn’t that you wanted to delve deeper into this because of that very topic.
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Well, I know it’s something that has evolved over the years. So I started like Paul indicated back in the day when we were worried about the Kings, sending their soldiers in, or the, the new quote unquote Kings, the representatives sending the police M and M to your home and the home is the most protected, but it’s evolved with technology as times have changed to include so much. I mean, there’s, there’s your home, there’s your vehicle. There’s other things like that. And then like what today with your phone, you can potentially get a warrant to take someone’s phone, but you may not actually be authorized to look inside the phone. Then it’s like, what about the data that’s actually stored on the phone? That’s separate from the actual phone itself. And you might need to be able to prove, like, get an additional one potentially to actually search the data on the phone, as opposed to just taking the phone itself.
(05:54):
Travis hits on a, on a very good point. So the fourth, like no other piece of law, I know evolves more over time than almost any of the other constitutional amendments, because you know, when, when they first decided we’re going to have an independent magistrate look at things before there’s a warrant, you know, they didn’t think Hey, can you search a car? You know, a car, a car is sent essentially the home places where there’s an expectation of privacy now have evolved into the areas we look at in the fourth amendment. Do I have, for instance, a reasonable expectation of privacy on my cellphone, do you have one on your laptop there? And certainly you do to some degree. And so the fourth amendment and the case law, which has come about as a result of it, you know, has to change over time.
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You know, we, you know, w we were many of us at eight track tapes, not too long ago, and now we’re past analog and we’ve got digital technology now, you know, does that warrant give me permission to you know, get you to put your password in so I can search your computer? You know, there’s a lot of nuance to it. And the essence of it is, you know, you have a right to reasonable expectation of privacy and what’s private, and we’re not going to just let the government come into it because the government wants to the fourth, fifth and sixth amendments, I think Travis would agree. I’m certainly like this right now. They didn’t trust government. Okay. They came here because they didn’t trust government. So let’s have independent entities say whether or not the government can get into my stuff. And that evolved from, you know, the, the frontier home to carriages, you know, to cars, to your iPhone. And it’s always evolving because of that.
(07:42):
Travis, you had some thoughts, I think,
(07:46):
No, I think Paul kind of covered it. I was just saying that the issue now is what the reasonable expectation of privacy, like one just to, I guess, go into a little bit more detail, but he mentioned the passwords. So like, if you have a password on your device versus if you don’t, well, that’s a pretty good, clear indicator that you thought that you wanted it to be private. You put a password on it versus if you didn’t. One of the things that will come up in fourth amendment situations is things that are in plain sight that don’t really require much of a search. Like if the police come into an interaction with you and there’s drugs or whatever, that something illegal that they can see in plain sight, that’s not hidden. Okay, well, there’s not a reasonable expectation of privacy. I don’t actually have to do much of a search. I just saw it right there. So I suppose maybe your laptop is open and some things on it that I can see is that a search or is it something that’s in plain sight? And we get into all sorts of technical details there, but I mean, being required to forced to give your actual password, like, you need to give me your password so I can get this or that, that, that sort of thing, as well
(08:48):
As Travis says there, and he brings up a good side issue related to it, which is there’s exceptions, many exceptions to the fourth amendment where you don’t have to have a warrant. One of them is plain sight. You know, if I’m walking past your SUV and I see you have, you know, four kilos of heroin in the back, I don’t need a warrant. You know, I I’ve seen it in plain sight. I can get in there and I can require you to either open that door or I can get that open. But that changes as time goes by what becomes plain sight, right? Say I have a drone. So now I’m going to fly a drone over your backyard out in the woods in North Carolina. And I see that you’re, you’ve got, you know, four acres of marijuana you’re growing there. You know, it’s a different it’s in plain sight, changes its definition as time goes by, we have the ability right now, pretty much to see anything that’s not covered. You know there was a time before drones were used to measure infrared heat, to find, grow houses for instance. And you could you know, see the infrared heat from the lighting that was inside the home. It’s much easier now and it’s harder for that kind of illegal activity to be concealed. And so we were constantly changing what fits the exception to the rule. And so it’s sort of a fascinating, but very large volume of case law.
(10:11):
Well, I wanted, there were two questions that immediately came to mind. One, Paul, you had mentioned this how is the government doing though, keeping up with this, you know, with this ever-changing cycle, do you think they’re doing a good job in AR and is there a difference in states, like from Indiana to Florida?
(10:30):
And I’ll ask Travis about Indiana, but if you ask me as you’ll, as you’ve found over the year, Serena, if you asked me how the government’s doing, I’m not a big fan of the government generally. I don’t think the government does a good job at much of anything, but they do the best they can with the situation they have. Generally. They’re usually behind the technology curve, you know the legislation, because it takes a while to get legislation passed is often behind, you know there’s not, it took a long time before there was any legislation at all regarding drones or cell phones or any of that stuff because they’re still back in the analog era on the, on the legislation. And so no, I don’t think the government does a good job, but I do think that the intent of Mo most law enforcement like any occupation, 95% of them want to do the right thing and want to follow the law. It’s the 5% that are sort of on the fringes that you have to distrust in terms of what they’re putting into those police reports and the probable cause applications for searches.
(11:37):
Travis, your thoughts on that?
(11:40):
Yeah. I mean, I think Paul’s right, that the government’s usually behind him due to a variety of reasons the government responds to society as opposed to being proactive generally. So you see changes come later. I think they try and keep and yeah, I don’t have much to add on that. I think that most police officers are wanting to do the right thing or at least what they feel is the right thing in the particular situation. And they try to be aware of the law, but as Paul indicated, like the law changes fairly often and what they might’ve been able to do yesterday, they can’t do today or what they did last year. And I think one thing that the government’s not really great at is educating them on, you know, making sure that they’re aware of that sometimes they’ll find it out the hard way in a suppression here in when now somebody who very well may have been guilty, but do the fact of the evidence getting suppressed is not going to be found, not guilty because not a state can’t prove their case and they’re going to get a walk free when potentially they arguably shouldn’t have been able to.
(12:35):
But for the legal violation that the officer didn’t really know about. So one thing that the government’s, I think, particularly not as great at is educating the law enforcement on how they need to handle the procedure to make sure that evidence can be used in court.
(12:51):
You know, that’s an excellent point. Travis makes because many times, even as a prosecutor, I used to think this is there’s a lot of time put, put in on the gun range and put in on technical aspects of being a law enforcement officer. But, you know we used to have a saying as a prosecutor, that guy likes to catch fish, but he doesn’t like to clean up, you know, and catching fish what law enforcement does and bringing them to arrest is a long way from cleaning that fish and bringing it to the table. You know, you gotta be able to finish up that project. And that’s really what prosecutors do. There’s many law enforcement officers in this county and Hillsborough, candidly, and up in Indiana where Travis is that have never testified in a courtroom. You know, it’s just the nature of the institution.
(13:38):
Many of them, you know, they might’ve testified in a deposition or so along the way, but you get a great cop, many times, great detective. And he comes in and he’s like in a different world when he’s in a courtroom and there’s a certain demeanor in a way that they need to present themselves. And frankly, juries because of TV and otherwise, you know, they expect, you know, that they’re going to see, you know, Richard Gere is the detective there and he’s going to have all the right answers and he’s going to do this. And the reality is many times they come off, even though they’re sharp people looking like Barney Fife
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And, you know, gentlemen, I know we’re spending a lot of time on this particular amendment, but I would be remiss if I did not ask this question because a lot of people don’t know what rights do they have? Like it’s if a police officer Sheriff’s deputy says, I, you know, I need this from you as a citizen. When do we say no? And when do we say yes, I know, I know you talked about plain sight, of course, but it’s nerve wracking, you know?
(14:37):
But if an officer’s asking you for permission to do something, you can generally almost always say, no like you don’t have to consent. You should be polite about it. And you shouldn’t like be resisting or mouthy or rude. Cause those things are likely to get you into an interaction. You’re not going to like but you don’t have to consent. Like if there’s, can I look in your car? No. Can I come in your home? No. in respond with like, do I need to talk to you? Am I free to go? If you’re free to go, like asking that question, am I free to go? Then you can turn around and walk away. Or if the answer is no. Okay. So I’m under arrest then? No, well, there’s really no in between there. I mean, there kind of is, but like either I’m free to go or I’m under arrest, which one is it? And there’s
(15:22):
The there right there. Travis is the evolution and the importance of moving from the fourth to the fifth amendment. Right? Because the fifth amendment then provides that you have a right. Not to incriminate yourself. Okay. Which is what most people do. Law enforcement. When they have an idea of what happened, they’re going to do everything they can to make you believe that it’s in your interest to talk to me. Right. Just tell me about why don’t you give me consent to look in the trunk? Why don’t you tell me what happened? You know, look, we know you’re dealing. Why don’t you tell me about it? And that’s right about then is when that person needs to not say another word, if not before. And because they’re looking to prosecute you, there’s sort of a feeling, I think among the general American public too, to a certain extent, Hey, they’re with the government they’re, they’re here to help me. The reality is there’s, there’s a great deal of culpable and guilty parties that talk themselves into convictions. And there’s a great deal of innocent folks that either talk themselves into a wrong conviction or put themselves in a position where they’ve, they’ve going to have to deal with a crisis and heartache of a criminal prosecution, even if they win, because they could have just kept their mouth shut. You know? I think there’s, you know, let me give you an example. Okay. There’s
(16:43):
A good transition into the fifth amendment too, by the way. Yeah. So segues. That’s what I’m here for,
(16:50):
But so, so there’s a great United States Supreme court case. Travis is familiar with, out of Ohio called I think it’s United States vs. Reiner, R E I N E R. It’s a shaken baby case Reiner who was convicted and that’s how he got his name on the case. It was the father. He was convicted of shaking the baby to death, but the babysitter, another last name, 15 year old kid, 16 year old kid originally was a potential suspect in that case. And they put her on in a pre-trial hearing and she asserted her fifth amendment rights. Well, the prosecutor said, look, she doesn’t have those rights. You know, we’re not looking to convict or anything like that. And the us Supreme court wisely said, look, the fifth amendment is for the innocent as well as the guilty because prosecutors frequently are wrong. Police are wrong. You know, you never know when they’re going to sort of change the crosshairs from that prosecution, you know, look to the babysitter now. So she has a right to assert her fifth amendment, right. And Reiner stands for that principle. So, you know, the public, I think thinks, oh, he’s taking the fifth. He must be guilty. Many times I’ll have somebody that I know is not culpable. And I want them asserting their fifth amendment rights also because they get it wrong.
(18:08):
Let’s talk about that though. And Travis you know, weigh in, I think the perception though, as you just mentioned, Paul, oftentimes if people do that and they, you know, and they don’t speak, sometimes there’s a lot of assumption of guilt.
(18:26):
Yeah. People are supposed to not use their silence against them. But I think as a general rule, jurors have a hard time with that and they really want to hear from the defendant. And if they don’t hear from the defendant, they’re going to make certain assumptions potentially to have somebody actually not make any sort of assumption whatsoever when they don’t hear from that person, I think is hard for people. But that’s what we do when we go over jury selection and talk with the jurors about what that means and try and to the best of our ability and make sure that jurors understand it and are going to be able to do it. But yeah, I mean, I think it’s one of those things, more importantly, in that initial interaction with law enforcement versus testifying in court, a lot of times the fifth amendment is more about don’t talk to the cops before you talk to me, your attorney talking with your attorney, you may well end up deciding, okay, maybe we can go ahead and testify in court because the jury is gonna want to hear from us and you can prepare for it.
(19:22):
And you can explain to the person what to expect, all those sorts of things. Because one of the main reasons why you don’t want to talk to people is because you’re nervous and you’re going to say something just because of nerves and it’s going to come across wrong. And, and you don’t realize the importance of the words that you’re using and that language matters. But if you use, instead of saying that this particular vocab word used this one because of connotation denotation just word choice can make a huge difference with people sometimes cause that interaction with law enforcement and in people, that’s where it’s so much more important. They, Paul talked about they’re gonna come in and they’re gonna tell you, look, we already know you did this. Let’s just talk about it. But a lot of people don’t realize is the police don’t have to tell the truth.
(20:03):
And I don’t think that’s necessarily a bad thing. They’re there to try and ferret out information. And if they can do that by using these techniques, then that’s what our law enforcement does. But you also have the right to remain silent just because they say that they, they, they know you did it. And let’s just talk about it. They’re saying that as a psychological technique, that gets you to talk to them to realize, okay, well I’m already in trouble. Now I can talk my way out of it potentially. And that very well may not be the case to where they have nothing. And now you’re giving them the information they need to build their case, whereas before they don’t have that.
(20:38):
Yeah. And I think the common perception is too, you know, the great deal of time in criminal jury trials during jury selection is spent with the judge and the educating the jury that you understand my client here has no duty at all to take the stand. You know that the government has the burden. So my client can constitutionally sit here and never say a word during this trial. Does everyone agree? We can’t hold that against this person. You know, we’re supposed to guarantee that happens. Now the reality is they will all then say, oh yes, I won’t hold that against them. And the practicality of it is that I’ve seen those jurors. When you tell a jury that you’re not going to put your client on those arms cross and their legs crossing, and like what happened to you? Weren’t going to hold it against them.
(21:22):
You can see it, you know, that draining from their body at that point. So it’s, I think it’s important that we understand that it’s a presumption of innocence. It’s not an assumption of innocence. So in other words, it’s a legal device. That’s created that we’re all supposed to follow, but we’re also all human. And then there’s a, there’s a reptilian instinct or something that says, Hey, how come the dude? Didn’t talk to me himself. And, and that’s something that constitutionally you don’t have to deal with, but as a lawyer, you better deal with it because they want to hear from your person many times
(21:55):
When the problem is, there’s a lot of reasons why somebody may not testify that have nothing to do with the case that they’re there for. They may very well have a good explanation that would help to show that they’re innocent of this particular crime, but they’ve been convicted of a felony before. And the state’s going to bring that up. And you’re worried about them, testifying the prosecutor saying that they’re a felon and then not, you get lumped in with the, okay, they’re not guilty of this one, but since they did it before, then maybe they’re going to be guilty of this one that you’re going to have that tendency. Well, well, they broke them out once before. So that goes to show that they probably did it this time to
(22:29):
Travis, an excellent point because the, the average person walking into a courtroom doesn’t realize that that decision has to be made by the lawyer. So Travis has an innocent guy, let’s say on a homicide, he’s got three prior convictions for drug offenses, three prior felonies. That jury is never going to hear that he had three prior felonies until he takes the stand. So that doesn’t come into evidence until he takes the state, takes the stand. Then it’s out there. And you know, my aunt Gladys, or, you know, Travis, you know, many people think that if that person’s got a felony prior, they absolutely did this. You know, the whole, that dog bit me before he’s going to bite me again. You know? And, and so there are many reasons as Travis says, while you’re not putting that person on. And unfortunately, most of those presumptions a juror makes way against the defendant.
(23:21):
Yeah. They can just be a horribly nervous person that presents awfully. I mean, it could have nothing to do with it. Another
(23:28):
Great point. Another great point. I want to go though back though, even before you get into the courtroom, if you say something that incriminates yourself, you know, during the process where you’re being arrested, you can’t take that back, right. Even though like, say, say hypothetically, I have the right, not to say it, but I blurted it out. I said it, how hard is it to take back? Or can you, well,
(23:53):
She just opened the door. Travis, did she? Not to all of the Miranda law that it takes up library, Serina, which is, you know we all know from cop shows and so on, you have the right to remain silent misfires on anything you say can and will be used against you in a court of law. Those are the Miranda warnings. There’s a whole series of cases where people do blurt out something before they’re advised of Miranda. Like, oh, are you, you know, let me give you an example. I had a friend of mine, Chamberlain high school principal calls them in, says, you know what, you’re here for. Right? He says, yeah, cause I broke the window on that portable. He’s like no, I want to talk to you about the math test. And you know, and so, you know, people make spontaneous mistakes about things and they, and they blurt things out before they are advised of their Miranda warnings.
(24:42):
There’s all kinds of exceptions that allow those statements in if they were made spontaneously, but you’re right. They can be suppressed many times where you can go back and say, here’s why I said that. Or your honor, these were made before he received his Miranda warning. So he wasn’t properly advised that he didn’t have a duty to talk to them, but you know, the fourth amendment law, and then that Miranda wing is a big one. You know, that exists. Also, it goes back to a case from the sixties an Arizona case called Miranda w you know, where you have a right to be informed of what all Americans should know anyway, but they don’t, which is shut your mouth. Right.
(25:20):
And even when they won that, they still don’t know. Right.
(25:23):
And in fact, the very wording of it is designed to get you to talk. It’s like, you know, how can we word this so that we can tell you have a right, absolutely not to incriminate yourself, but then I’m going to get you to talk. So it usually goes something like, Hey, look you can go this way. If you want, I got to inform you of your Miranda rights. You know, if you want to be dumb and not talk to me, you know, that’s kinda how it gets, gets placed to the person. And then they’re like, oh, I better talk. But the reality, it reality is they’re constitutionally required to tell you it’s in your best interest and you, by the way, you have a constitutional right. Not to talk to me, but let’s now get down to convicting him.
(26:01):
So the best advice is just don’t say anything and call an attorney
(26:05):
At the time. Most of the time, although there there’s instances where you can say, Hey, look, I’ve got the video of this guy next door doing this. I mean, I, you know, there there’s exceptions to the rule, but generally, you know, it was, my assistant will say, you know, I’m, I’m off the phone going, why did this person talk to them? You know? And so in the great bulk of times, you’re wishing that it would just exercise their constitutional right. Their fifth amendment, right. Not to implicate themselves.
(26:32):
Yeah. And then the big question on whether or not you can back out of the statement is if Miranda was administered, like Paul saying that timing that comes in, like, are you in custody? Or you’re not in custody if you’re in custody, then you’re supposed to be given that warning, but they’ll argue, well, they weren’t in custody. And it was just like a friendly encounter and they blurted it out. And there’s all sorts of complex nuances of the case law. And I saw, you asked the question and watching Paul’s reaction. I’m like, well, there’s the lawyers answer the order. His answer is always, it depends. It’s going to depend on the particular facts, but yeah, right.
(27:03):
Yeah. T to Travis’s point, you know, FBI policy lately is they’ll bring two people to your doors, very nicely dressed. They won’t read your Miranda. And then they’ll say, Hey, well, you were afraid to go. We’re just here to talk. And that’s the nature of the agency, right? They’re doing longer term, oftentimes white collar cases. They’re not going to arrest somebody right away. So they’ll just say, Hey, it was a non-custodial interrogation. And so, you know, it’s an adversary process. So the defense is always trying to, to do this, to ensure the, the person’s rights, the accused and the government, because it’s, their job are going to do everything they legally can do to try to get that person to trample their own rights. You know, you can always consent to giving up your rights and they frequently do it can
(27:51):
Be very intimidating. Let’s talk about the sixth amendment and we’re going to devote a whole show about COVID in the courtroom. So we’ll save that and how it’s impacted trials and things like that. But talk to us about the sixth amendment and your right to a speedy trial.
(28:09):
Yeah. So the sixth amendment guarantees a number of things. There’s the right to a trial by jury, a speedy trial. The jury is, you know, of your peers, and then it also guarantees you the right to counsel and a criminal proceeding. So the jury, right, was basically, again, back to the idea that the king would appoint the judge, and we don’t want that sort of system to happen. We’re getting out from under that system. We want this to be regular people from our community who get to decide what happens as your right to a jury trial. And it’s one of the, not just criminal, right, but a civil right as well that we get to have the right to trial by jury. And even in the civil situation, corporations are working to try and erode the right by making, you know, mandatory binding arbitrations, things like that to get out of the court system. They’re not fans of the jury. They like to do things more. I don’t know, expeditiously and have a business oriented arbitrators decide as opposed to regular folks like you and me.
(29:11):
It’s a S it’s a sacred one. When you say Travis, that right to a jury trial is so important to, to an accused or a person who’s been sued lively or a plaintiff. You know I want the idea is, as Travis said, I don’t want the government appointed entity to decide I want six or 12 people that are like my client, a jury of his or her peers that are going to sit in judgment. The sixth amendment also provides importantly, from the criminal aspect that you have a right to confront the witnesses against you, right? I mean, you, can’t, the guy can’t submit an affidavit, Hey, this and Gladys in California submits, this affidavit says you did this stuff. And you’re like, well, I’d, I’d like to be able to cross examine and Gladys about that. Well, you can enter the sixth amendment.
(30:01):
You have a right to confront your accusers and which, which allows you to do the most important part, which is the crucible of truth is the case that say is cross-examination, you know, it’s the same thing when dad used to call, you know, the kids into the living room and said, wants to know who ate all the ice cream, you know, and my brother-in-law and, and, and, but you’d cross examine them with questions. And, you know, maybe one of us has some ice cream on our mouth bill and we weren’t supposed to be in there and you use, Hey, what’s that on your, on your face? It’s a very, you know it’s a very good way of getting to the truth of what happened in the sixth amendment allows us to confront and cross examine witnesses. So another important aspect, I mean, the fourth, fifth and sixth amendment are sort of the the 10 commandments in three amendments to the, to the criminal defense and also on this with tremendous civil implications also, but it really are the hallmarks of the criminal world.
(31:00):
Yeah. And th the, the right to confront the witness is something that’s become so interesting. And as far as, like, what does that mean? Because there’s victim rights that have come up as far as like children that have been abused, or they have to actually take the stand and have to deal with being confronted by this person who’s been abusing them. Do you have that right to see them face to face? Or can they like go through technology and be behind a screen and another room separate. So they’re not in the same room potentially. And that’s been something that’s been litigated by people. And then obviously we’ll talk about it in a separate episode, but masks and, you know, hiding behind the mask, potentially as opposed to not having a mask. So
(31:38):
Lots to talk about on that episode, because I think we can carry the sixth amendment into the episode on COVID in the courtroom, because that also affects speedy trials now. So there’s so much to talk about. But we can wrap it, Travis, any last words for this, for this episode,
(31:56):
I guess just briefly you’d asked about the speedy trial. I mean, the way that works is if you’re in custody and the idea is that the government can’t hold you there indefinitely without your having the right to get in front of a judge, and then ultimately to have your case, try it. Otherwise, the idea is that people would sit in jail without being able to actually face their charges. And if the, again, presumed innocent, innocent people are sitting in jail because they haven’t been proven guilty. So the speedy trial, right. Is to get cases, tried to help people who are not yet guilty. Don’t have to sit in jail.
(32:29):
Yeah. And as to that point it’s, it’s often honored in the breach and that, you know, most criminal defendants, at least in the, in the bay area in Florida, or at least lot of them they’ll waive that. Right. Because, you know, you don’t want to rush it knife either. You know, the government generally, when they bring a case, they’re ready to try it. If you’re a good prosecutor, you’re pushing it quickly. Right. You want, you want it to go quickly. If you’re the more confident you are in your case, the quicker you’re moving it on the defense side times, usually on your side, you know, if it, if it, if it happened or it’s charged wrong, first of all, you need more time to investigate it. Witnesses disappear with time. You know, prosecution cases are like laundry that doesn’t get better. Right. Right. And it’s, you know, it’s they kind of fall apart by attrition. So good prosecutors moving at time-wise. So that, that speedy trial, right. Is sometimes something that is quickly given up.
(33:24):
Yeah. It’s very rarely ever in something that benefits the defense, but every once in a while you might have on with somebody who’s just totally wrongly accused. You have a rock solid defense, and they’re sitting in jail and you’re like, all right, we want to trial. Let’s just be done with this because the prosecutor is not going to let them out because of whatever reason. But, and that’s really what I think it came from. It was like somebody who isn’t put in prison by the king and they shouldn’t be put in prison at all. There’s nothing to back it up. So the idea is if the government really oversteps and it’s just trying to hold you in jail for no good reason, then there’s this trigger word that you can hit to get out of jail as soon as possible. Okay.
(34:02):
Well gentlemen, fascinating conversation and we’ve learned so much. Oh, Travis, were you going to say something?
(34:07):
I was just going to say that typically the government nowadays, doesn’t go to that extreme of abuse where you end up needing that like Paul was saying, but, but sometimes they do
(34:19):
Well again, fascinating conversation, gentlemen, Paul, always great to have you here, Travis, of course. So honored to be your host. And I’m excited to do another episode with you, Paul, Cisco, and talking about COVID in the courtroom, but for now stay safe, everyone. And thank you so much for joining us for this episode of waitress, Travis. Thanks for buying more
(34:38):
About Travis McConnell, head to TravisMCLaw.com. Thank you for listening to We Trust Travis.
