The Florida Bar

Florida Bar News

May 1, 2020 Letters


Hearsay Rule

David S. Oliver in his April letter shares his displeasure with how the hearsay rule limits evidence. He claims that “when it comes to the Hearsay Rule, the knee-jerk reaction is ‘jurors are too dimwitted to comprehend how to apply these notions (of evidence balancing) to hearsay.’” I respectfully disagree. My law professors did not say that the hearsay rule existed because we do not respect jurors’ or judges’ mental acuity. The rule applies to non-jury trials or evidentiary hearings the same as jury trials.

I did learn we revolted to save Americans from a fate like Sir Walter Raleigh. He was convicted of treason (and executed) upon only a hearsay statement of his supposed collaborator. Raleigh was convicted by a Crown prosecutor arguing to Crown-approved judges who specifically ignored the law: “No man shall be condemned of treason unless he be accused by two lawful accusers.” The hearsay rule is a key part of the judicial review and separation of powers Alexander Hamilton wrote of in the Federalist Papers.

There are practical reasons to limit hearsay besides its 400-plus years of basis in history. We honor our civil and criminal justice system where we let judges make fact-finding as pure as possible. Permitting unfettered hearsay is akin to letting fact finders get testimony via the phone game or letting unverified witnesses testify.

I agree that a witness may need to answer for their own tweets, if relevant. But trials should not devolve into testimony about what others tweeted, even if it would be easier for judges to allow in all hearsay and let jurors sort it out. Judges, interpreting our Legislature’s laws on hearsay, serve an important role gate-keeping hearsay evidence the same way they have become gatekeepers for scientific evidence.

Palm City

Forced Insurance

Lender force-placed insurance premiums are a part of the mortgage business model. Homeowners are required by their mortgagees to take out insurance on their homes for the purpose of protecting the mortgage investment of their lenders. If they do not, then the lenders can force-place the insurance premiums.

Forced insurance premiums are added to monthly mortgage payments. If the premiums are not paid like every other charge included in the monthly mortgage payment, the lender or its servicer can declare a default and foreclose. This is not something they necessarily want to do.

However, lenders and mortgage servicers do want to add on charges to mortgage payments that homeowners make to them every month. Add-ons that include the forced insurance premiums the lenders pay to insurance companies. The insurers in turn provide force-placed insurance to lenders and servicers which obtain it at the expense of the borrowers. Add-on charges of all kinds can become a tipping point for any homeowner’s budget.

Steven Mnuchin, the current Treasury secretary, has now been empowered to subsidize mortgage servicers. Mnuchin will likely order subsidies for several months. When that time is up, foreclosures will come for unpaid mortgage charges, including forced insurance premiums.

What is at stake is billions of dollars taken from homeowners.

And more. In the next couple of months, homes can again be taken from homeowners. Including because of forced insurance premiums for insurance that ordinarily protects only the lenders and not the borrowers.

Winter Springs

Diversity of Opinion

I wrote a piece a couple of years ago on diversity, and I won’t go into all of that again, but it is interesting how it has developed over time on the sociopolitical spectrum.

It used to be the logic of the left, if you can call it that, that people from diverse backgrounds and cultures could coalesce around an issue and present the issue to the larger group from the perspective of their own unique cultural experiences. With that input, a better, fairer, and more thoughtful outcome could be reached.

That was the theory anyway and that’s how they sold us on the great wisdom of diversity.

It seems now that what those who advocate for increased and mandated diversity are really talking about are things like race and gender. What they are most definitely not including in their advocacy is diversity of opinion, the very thing on which the conception of diversity was originally premised.

Adherents of the creed of diversity are not in the least interested in safeguarding the rights of those with differing opinions from presenting and arguing those opinions in the public arena. Instead, in their zeal for uniformity of thought, again, if you can call it that, they join the chorus of those who deem such people as hate mongers and criminals; “a basket of deplorables” to borrow a phrase.

If you disagree with me, and I’m sure there are many who do, I would like to invite you to walk the campus of any major university in this country, especially one in California, wearing a MAGA baseball cap. I would be interested in the outcome of that. You’d probably have a brigade of social justice/gender studies majors chasing you down the street.

When did liberalism become so illiberal? Presenting anything that is out of lockstep with leftist orthodoxy is fraught with peril. After all, violence is justified because anyone who would say such things is nothing more than an ignorant bigot who should be shunned anyway. Here in the land of the free and the home of the brave, you have to be careful about what you say and how you say it, especially if you even whisper anything that applauds our nation’s history or anything else that 20 years ago would have been perfectly acceptable.


Think of the Accused

Schools are closed and students are home. Businesses are closed and employees are home. But, with most courtrooms closed, those that stand accused, and presumed to be innocent, are sitting in jail.

While we are all rallying to support our local businesses, providing food and nutrition for school children, and taking care of our own health and well being, we cannot forget about those in our community who are experiencing some of their worst days navigating the criminal justice system.

COVID-19 has brought the wheels of justice to a screeching halt. Citizens who have been awaiting their day in court now see their cases continued with no sure idea of when that day will come. Our judges are diligently working to hold dockets for critical and essential proceedings like first appearances, bond modifications, and negotiated pleas, but scheduled jury trials and hearings on substantive motions have been canceled.

Similarly, our local jails can only do so much to prevent the spread of COVID-19. No matter how hard the staff works to sanitize, disinfect, and separate incoming arrestees, members of our community are going to be locked away. They will face the virus behind bars.

This crisis shines the light on our continued over-criminalization and incarceration of those accused of crimes. We must remember that the majority of people in a county jail have not been found guilty of breaking the law. Most are simply awaiting trial and their chance to be heard. In fact, some would be home with family if they could only afford to pay bond. But as resources become scarcer, and more jobs deemed nonessential, more families are having to make tough calls on how to make ends meet. This is where we see people agreeing to sentences and plea bargains, even when not guilty, in order to get out of jail.

As we work to get through COVID-19, we must continue to bring attention to what’s going on inside our courtrooms and to zealously litigate issues regarding pre-trial release, unlawful searches and seizures, and probable cause determinations. We must continue to encourage the use of programs and initiatives that reduce recidivism through second chances and support. But most importantly, we cannot forget about the accused. Now is the time they need us the most.

We must be more vigilant than ever to preserve not just human dignity, but also the protections guaranteed by the Constitution. Amidst this crisis we must advocate — both inside and outside of the courtroom — to ensure that due process, the right to confront those making accusations against you, and most importantly the presumption of innocence, are still respected in the criminal justice system. Let us all continue to work together to ensure that justice delayed does not become justice denied.


Social Justice

I appreciate the letter writer in the April News setting out the definition of “social justice,” a phrase which has become a euphemism for today’s left-wing political agenda.

It brought into clearer focus why I’ve always found that phrase troubling. While couched in high-sounding, benign platitudes, it is often invoked to justify terrible policies. Examples abound. The concept of “fairness” in decision making is a laudable aspirational goal for any system, but should never supplant the rule of law. Judges must not be encouraged to decide cases based on their innate sense of fairness untethered to well-established legal principles.

The same applies to the concept of an “equal society.” If that means equality before the law and equal treatment regardless of race, creed, or color, I’m all for it. But increasingly this has devolved to mean “income equality” and used by leftists to promote the malignant notion that government power should be used to strip away the fruits of one person’s labor for re-distribution to another who had nothing to do with earning it. For true “income equality” we need only look to police state dictatorships like Cuba and North Korea, where the masses equally share the misery of little or no income.

So, too, has the fine term “diversity” been highjacked to justify the odious and divisive practices of racial preferences and quotas. Why has diversity come to mean only skin color and ethnicity, thus reducing people to being categorized by their physical and genetic attributes? The concept of diversity should encompass the full spectrum of the human experience: diversity of thought, viewpoint, interests, skills, and cultural background.

Thanks, but I’ll take freedom and legal justice over social justice every time.


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