Judicial Section Details

Zoom

Non-evidentiary matters may be heard via Zoom.  Counsel are reminded, however – and are directed to remind their clients and others appearing with them – that someone who is in court via Zoom is in court.  Courtroom attire (e.g., suitjacket and necktie for men) and behavior are required. 

Division 14 Zoom ID: 977 8172 0114

Motions Practice Generally

To request that a motion be placed on calendar, send a courtesy copy of the motion to chambers.  Judge Hirsch will review the motion, and chambers staff will then contact the attorney.

The trial calendar will be sounded 11 days before trial, i.e., two Thursdays before the Monday trial.  All pending motions must be resolved – not just filed, but resolved – at or before time of sounding.  See Fla. R. Crim. P. 3.190(c) (as recently amended) (“The court must dismiss any motion not filed before the deadline set by the court, unless the defendant demonstrates good cause for the delay, or the motion is based on fundamental grounds”); Fla. R. Crim. P. 3.190(g)(4) (as recently amended) (“A motion to suppress must be filed . . . before a deadline set by the trial judge”).  This applies to all motions, including motions in limine.

Motions in Limine

The essence of a motion in limine is that adverse counsel is likely to offer at trial some particular item of evidence; that the rules of evidence and of criminal procedure do not expressly address the admissibility or not of that evidence; that when the evidence is actually offered it will be found inadmissible; but that an after-the-fact objection to the evidence (and a judicial instruction to the jury to ignore the evidence) will be inefficacious; and therefore a pretrial ruling excluding the evidence is required.  The rules of evidence and of criminal procedure, which reflect the experience and wisdom of untold generations of lawyers and judges, prescribe the outcome for the overwhelming majority of evidentiary disputes that could arise in any case.  The likelihood that a given trial will feature something for which the rules have made no provision, and that therefore must be hashed out by a pretrial motion in limine, is slight.

Because motions in limine deal with those interstices in the law, those rare situations for which there does not exist a settled rule of law, they would be merely repetitive, and therefore inappropriate, in a context in which the applicable rule of law is well-settled.  To take a silly example: A motion in limine asking that opposing counsel be ordered not to lead on direct examination (except in those situations in which the law provides for leading on direct examination) would not be well-taken.  Such a motion in limine is not needed, because such an order in limine is not needed.  The law already provides, in plain terms known to all lawyers and judges, that leading questions are generally objectionable on direct examination.

Motions to Suppress

At a hearing on a motion to suppress physical evidence, the burden of proof is allocated by operation of constitutional law: if the search and seizure resulting in the evidence was the product of a warrant, the burden of proof is on the movant; if the search and seizure were conducted in the absence of warrant, the burden of proof is on the prosecution.  See United States v. Longmire, 761 F. 2d 411, 417 (7th Cir. 1985); see also State v. Setzler, 667 So. 2d 343, 345 (Fla. 1st DCA 1995). Until recent amendment of the Rules of Criminal Procedure, the burden of production (i.e., the burden of going forward) was allocated to the movant by operation of former Fla.R.Crim.P. 3.190(g)(3) (“If the court hears the motion on its merits, the defendant shall present evidence supporting the defendant’s position and the state may offer rebuttal evidence”).  Subsection (g)(3) as recently amended is silent as to the burden of going forward.  Until clarification is provided by the appellate courts, the practice will remain the same in Judge Hirsch’s division: the defendant, as the movant, will go forward on the motion.

Typically, one of the first witnesses the defense will call is the lead detective or police officer involved in the search and seizure.  Although the defense calls the witness on direct examination, defense counsel may examine by leading questions as on cross.  Fla. Stat. 90.612(3) (leading permitted “[w]hen a party calls ... a witness identified with an adverse party”).

Notices

A lawyer can file a motion for absolutely anything for which there is support in fact and law.  A lawyer can file a notice only when there is a statute or rule providing for that notice.  No statute or rule provides for a “Notice of Unavailability” or “Notice of Vacation.”  The lawyer who wants a continuance must move for a continuance.

Pleas

Attorneys often indicate their desire to enter a plea of no contest.  Such  plea requires leave of court, Fla. R. Crim. P. 3.172(a), which of course means that there must a good reason for it.  More often than not, what the lawyer really wants is an Alford plea, see North Carolina v. Alford, 400 U.S. 25 (1970); see also United States v. Tunning, 69 F.3d 107, 109-112 (6th Cir. 1995), for which leave of court is not needed.  Generally, all of Judge Hirsch’s pleas are Alford pleas, in that he does not ask a question such as, “Are you pleading guilty because you are actually guilty?”

Voir Dire

Florida law favors attorney-conducted voir dire of the jury venire. See Fla. R. Crim. P. 3.300(b).  The voir dire, however, must be about the case to be tried – not about imagined facts in imagined cases.  Thus attorneys may not ask about a law making it a crime to wear a red necktie on Tuesday.  Attorneys may not ask about a pilot announcing that he thinks he can land the plane in the fog at O’Hare.  Attorneys may not ask about the “elements” of a peanut-butter-and-jelly sandwich, or about what laws a venireman would enact if he were king of his own island.  Objections to questions of this ilk will be sustained, and counsel will be admonished in front of the venire.

It is entirely proper for attorneys to question potential jurors about their ability to follow the law.  If an attorney wants to ask questions about a particular statute or jury instruction, best practice is for the attorney to inform the court a day or two before the commencement of trial.  When the attorney wants to voir dire about a statute or instruction, he or she should ask the court to read that statute or instruction.  The court (having been put on notice a day or two in advance) will do so, and then the attorney may voir dire about the law just read.  Calvert v. State 730 So. 2d 316, 319 (Fla. 5th DCA 1999).

Victim Impact Statements

Section 921.143, Fla. Stat., provides that in non-capital felonies victims may appear at sentencing hearings “for the purpose of making a statement under oath” in connection with the sentencing.  In the alternative, victims may submit written statements under oath, to be filed with the sentencing court.  The statute makes clear that it is the responsibility of the Office of the State Attorney to inform victims that any impact statements must be confined “to the facts of the case and the extent of any harm . . . resulting from the crime for which the defendant is being sentenced.”

Victim impact statements must be addressed to the court and not to the defendant.  The purpose of such statements is to inform the court about the victim, and the consequences, of the crime.  The purpose of such statements is not to bullyrag the defendant or his or her counsel.  A witness who attempts to excoriate the defendant or defense counsel will be interrupted by the court and instructed to be seated or leave the courtroom.

Any exhibits to be used in connection with victim impact statements must be provided to the court and to defense counsel beforehand.