Florida Criminal Law Blog

In 1999 the Florida Legislature passed the Juror’’s Bill of Rights, now codified as Florida Statute 40.50. In October of 2007, the Supreme Court of Florida adopted some of these ““rights”” and incorporated them into the Florida Rules of Procedure and the Florida Standard Jury Instructions. These Rules and Instructions will become effective January 1, 2008.
Some of these procedures are already being followed by Judges in Escambia, Santa Rosa and Okaloosa counties as well as other Florida courts. The following are some of the changes that provide jurors certain rights in Civil and Criminal trials.

Being able to take notes. Florida Statutes had previously allowed that in any civil trial likely to last more than five days, jurors have the right to take notes and keep their notes confidential. However, the new Rules implemented by the Florida Supreme Court extended this right to jurors in criminal cases as well as civil cases and removed the requirement that the trial last more than five days. This Rule will become effective January 1, 2008.

Jurors are now able, within the Court's discretion, to be allowed to submit questions to the Judge to ask witnesses. The Florida Supreme Court again extended this right into criminal trials, it had existed in civil trials since 1999. In criminal cases, the new rule becomes effective January 1, 2008. It appears that a juror’’s right to ask questions is mandatory in civil trials but only discretionary in criminal trials. Florida Rule of Civil Procedure 1.452 states the Court ““shall”” permit jurors to submit questions, whereas Florida Rule of Criminal Procedure 3.371 states that ““at the discretion of the presiding trial judge””, jurors ““may”” be allowed to submit questions. It is not uncommon for some judges to actually ask questions of witnesses either during the questioning or once the state and defense have completed their questioning; this procedure is allowed as long as the judge does not make known to the jury his or her personal beliefs of the merits of the case into his or her questions.

In civil trials Jurors are required to be allowed to use notebooks provided them by the trial court. The Florida Supreme Court approved the use of ““juror notebooks”” in civil trials (effective Jan 1 2008 - in the discretion of the court). This is a procedure whereby ““the court may authorize documents and exhibits to be included in notebooks for use by jurors during trial to aid them in performing their duties.”” See Florida Rule of Civil Procedure 1.455. There is no counterpart to this rule in the criminal rules however often in Pensacola and other court rooms across the country judges give jurors notebooks on which to keep notes. These notebooks are collected after the trial and destroyed.

Jurors are now mandatorily given copies of jury instructions in civil cases. Effective January 1, 2008, the court shall provide each juror in a civil trial with a written set of jury instructions for his or her use during deliberations. See Florida Rule of Civil Procedure 1.470 and Florida Standard Jury Instruction Civil (Note On Use) 2.1.

On October 4, 2007 this year, four sweepstakes arcades, including two in Pensacola were raided by a joint law enforcement task force including officials from the First Judicial Circuit Office of the State Attorney. The probable cause stated in the search warrant alleged that illegal gambling was occurring at these four locations. I am represent one of the facilities. The government seized almost everything at these locations: computers, paperwork and machines which, on the surface, appeared to look and feel much like slot machines.
This brief article deals very basically with what differentiates a gaming device from a sweepstakes or legal video arcade game. Florida Statue Sections 849.15(2) makes it unlawful to possess or to permit the operation of any slot machine or device or any part thereof. It is also unlawful for any person to permit to be placed or maintained in any building or place owned, leased, or occupied by him or under his management or control, any slot machine or device or any part thereof . But what differentiates a prohibited slot machine from a legal sweepstakes machine or video arcade game? A slot machine is considered a prohibited device if it is adapted for use in such a way that as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated, and if the user, by reason of any element of chance or of other outcome of such operation unpredictable by him or her. It is the element of chance, or, put another way, whether the machine has an infinite number of opportunities to win a prize that converts an otherwise lawful arcade device into a gambling device. Therefore, if a machine, like a sweepstakes, only has a finite number of opportunities to win a prize, it is not a game of chance - the person playing the game knows that the machine will allow only allow a limited number of winners. If you were to look on the back of a sweepstakes card you might pick up from McDonalds, Publisher’s Clearing House or Burger King, it would tell you how many opportunities (prizes) there are to win. There is a finite number of winners and therefore not a game of chance. Furthermore, to enter the sweepstakes or, as in the case of the sweepstakes arcade facilities raided, a person did not have to purchase anything.
Under Florida law in order for a game to be considered gambling, like the slot machines in Biloxi or the horse races at the Pensacola Dog track, there must be an infinite number of opportunities to win. Law enforcement authorities are currently investigating whether the machines at issue seized during this multi-county raid are finite machines or whether they operated with an infinite number of opportunities to win.