In Bleich v. State, Florida’s Fifth District Court of Appeals recently reversed the conviction of a man whose brother was called as a witness during trial simply to allow the prosecution the opportunity to admit the brother’s prior statement to the police about the defendant’s involvement in a robbery.

Kirk Bleich was charged with home invasion robbery with a firearm stemming from a break-in at a house in Hernando County. Bleich’s brother, Barak, admitted to police officers that the two committed the crime and later pleaded guilty to the same charge. Bleich maintained his innocence, on the other hand, and proceeded to trial.

The State called Barak as a witness, but this time he denied that his brother participated in the robbery. To impeach this testimony, the prosecution entered as a evidence a DVD of Barak’s pervious interview with law enforcement in which he said that his brother was indeed involved in the crime. The State also referenced the incriminating statements during its opening and closing statements. A jury found Bleich guilty.

The Fifth District overturned the conviction on appeal, ruling that the State could not call Barak as a witness solely for the purpose of introducing the DVD footage as evidence.

Florida law provides that “extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it…” It is also admissible where the witness denies the prior statement. Here, however, the court said the State called Barak as a witness knowing that he would deny the prior statement and planning to use this denial as grounds for introducing the video evidence.

“In determining whether a witness is called for the primary purpose of introducing a prior inconsistent statement that is otherwise inadmissible, the court may consider several factors, including: (1) whether the witness’s testimony surprised the calling party; (2) whether the witness’s testimony affirmatively harmed the calling party; and (3) whether the impeachment of the witness was of de minimis substantive value,” the Court explained.

In this case, the Court noted that Barak’s testimony did not catch the prosecution by surprise as he had made it clear that he would not testify against his brother at trial. In fact, the State mentioned in its opening statement that it did not expect Barak to cooperate. Additionally, Barak’s testimony was of great value to the prosecution, but only for the use of admitting his prior statements to the police as evidence. As a result, the Court reversed the conviction and remanded the case for a new trial.

Witness testimony is an important part of the criminal process and issues such as that decided by the court in this case can mean the difference between conviction and acquittal. At Anidjar & Levine, our South Florida criminal defense attorneys are experienced in handling a wide range of criminal cases throughout the state, including in Hialeah, Boca Raton and Pompano Beach. We are dedicated to providing our clients with aggressive, competent and high-quality representation.

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Court Says Police Can’t Search Cell Phone Without Warrant – Smallwood v. State

Florida Court Throws Out Felony Charge for Failure to Prosecute – Mora v. State

Florida Court: No New Charges After “Speedy Trial” Period Expires – Whitehall v. State