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Carlson Meissner Hart & Hayslett | Legal Blog

Sep  27,  2010
By admin
Carlson, Meissner, Hart & Hayslett, P.A.
Upon Learning that the Police Want to Question, Detain or Arrest Their Child For Alleged Criminal or Delinquent Conduct,  A Parent’s Initial Reaction May Not Prove to Be The Wisest Course of Action
by Christopher G. Frey, Esquire, and J. Larry Hart, Esquire The Law Offices of Carlson, Meissner, Hart & Hayslett, P.A. As criminal defense attorneys, we frequently meet with parents who have a child who is being approached for questioning, detained and/or arrested for alleged criminal (delinquent) conduct.  An unexpected and surprise encounter with law enforcement in this type of a scenario can be frightening - and confusing.  The vast majority of parents in our community have been taught to respect law enforcement, obey the laws of our state, and to raise and teach our children to do the same.  As parents raising children, we are intimately familiar with such tenets.  We are also well aware of parents’ knee-jerk reactions to encounters with law enforcement personnel regarding alleged misconduct of their child or children: almost instinctively demanding that your child “tell us (them) all about it”. The Constitutions of the United States and the State of Florida both provide constitutional protections against self-incrimination and the right to have counsel present prior to or during any questioning by law enforcement.  In simplified terms, this means that any person accused of committing a crime, or a delinquent act, has an absolute right to remain silent with regard to the allegations, and to have an attorney present before or during any questioning by law enforcement.  Children, even minor children, accused of criminal or delinquent acts are protected by these, and other, rights. The Florida Evidence Code, contained within Chapter 90 of the Florida Statutes, creates certain evidentiary privileges that provide for the confidentiality of certain communications between protected classes of people.  Perhaps the most widely recognized is the Attorney-Client privilege.  Another publicly familiar privilege is the Husband-Wife privilege, also provided for within Chapter 90.  Please understand that under state law these privileges only afford protection to confidential communications, they do not provide a blanket prohibition on the use of testimony relating to certain observations or physical actions.  Additionally, it should be noted that many, if not all evidentiary privileges can be abrogated when the information sought to be protected pertains to certain offenses, such as allegations of child abuse, sexual abuse, or intentions of any person to inflict FUTURE physical harm to a person, and such information is expressed during confidential discussions.  It has been our experience that an overwhelming majority of parents are not aware of the fact that Florida law does NOT recognize a Parent-Child privilege (or a privilege between siblings) that provides for confidentiality of communications between parents and their children.  Hence, when your child or children “tell you all about it”, the content of their statements is NOT confidential, and is consequently unprotected.  Yes – this means you can be called as a witness regarding such communications, in addition to any observations of incriminating or corroborative conduct. Before proceeding with this article, please understand that the content contained herein is intended to provide only general information and basic considerations relating to its subject matter.  It is not an exhaustive outline of the laws or rules mentioned.  Such laws and rules can significantly vary from state to state.  Generally speaking, in considering legal privileges one is dealing with a mechanism that largely functions to prevent the disclosure of what may be extremely valuable information (i.e. critical evidence).  As a result, such privileges are almost always narrowly drawn and strictly construed in their application.  It is also worthy of note that there are a number of relationships / factual circumstances in which there are very few, one or no privileged communications applicable or recognized by the law.  The analysis can be very involved and is not addressed herein due, in part, to the fact that the applicability of such privileges is determined on the facts of each case.  Even seemingly minor factual differences can be critical and determinative of their applicability). The belief that such parent-child confidentiality exists seems to be especially prevalent where parents are communicating with their minor child or children, or when seeking the services of an attorney to represent their minor child or children in a criminal matter.  Standing alone, the fact that a child is a minor is of no consequence.  Any communications between a parent and child are still NOT protected as confidential.  Therefore, any statements received by a parent from that parent’s child (whether a minor or an adult) may be used against the child in a criminal prosecution.  Additionally, there is a real danger of waiving the recognized Attorney-Client privilege if the attorney obtains statements from the child in the presence of an unprivileged third party, including the parent.  In our experience, most parents find that there exists no more uncomfortable position than the prospect of being listed as a government witness against that parent’s own child.  And it is no different from the child’s perspective. Many parents find the absence of a formally recognized Parent-Child privilege with regard to such communications to be tremendously unsettling.  After all, most parents teach their children to be honest when speaking with them, to respect laws and law enforcement, and to do the same when speaking with the police - right?  It seems to “cut against the grain” of these teachings to recommend remaining silent, or to “lawyer up” in such situations.  It also feels unnatural, and for many parents even insulting, to have the attorney they have hired to represent their child to ask them to “wait outside” while the attorney speaks with the child in confidence.  A parent may feel even more frustrated when the attorney recommends that the parent not discuss the facts of the matter with the child.  However, both the parent(s) and child must bear in mind that it may well be in the best interests of both to heed such advice. With regard to a child’s statements to law enforcement officers, the same initial reactions of parents seem to also generally apply.  However, never fail to appreciate that the choice to not speak to law enforcement, i.e. to remain silent, or to request the presence of an attorney before or during any questioning are constitutional rights.  The choice to invoke those rights is in no way a sign of disrespect for the law, law enforcement or the parents.  It can be a very prudent decision. It is agreed that the vast majority of law enforcement officers are diligent, respectful and honest.  They are charged with the duty to investigate alleged criminal conduct, and speaking with a suspected delinquent or violator is a routine part of any investigation.  But, investigators are human.  Most do not have photographic memories, and, unless a statement is recorded, the contents of any such statement may be reflected in an incident report as the investigator’s interpretation of what had been stated, and not the actual statement itself.  There is also a danger of inaccurate reporting, albeit unintentional, or a statement reported out of context in relation to other information retrieved in the investigation.  For example, consider the comment “I did it”.  Lower your voice and assert it.  Now, state the identical words as a question, or posit them as a sarcastic / facetious comment.  On paper, they’d all read the same - and it may well be “recorded” (if only in a written report) by someone who doesn’t know the speaker, their unique behaviors and/or “the way they put things”. Law enforcement investigators are trained in interrogation technique.  While some may deem it to be unfair, the law, to some degree and in some circumstances, permits investigators to utilize deception to extract statements or “confessions”.  This is a fact.  Likewise, investigators most often attempt to retrieve more information than they provide to a child being questioned.  In this regard, the subject being questioned usually does not have much (if any) insight into information previously obtained by investigators.  Statements provided by a child to interrogators may seem to be harmless or even outright denials of criminal conduct.  However, from the investigator’s standpoint, such statements may contain information that the investigator believes corroborate other incriminating facts previously unearthed in the investigation.  Additionally, if investigators have already spoken to other people allegedly involved in or knowledgeable of the criminal activity, even seemingly harmless statements made by the child may be contradicted by the statements of others and thereby create the appearance that the child is not being honest. Two other factors may come into play in a criminal investigation.  First, when a child speaks to law enforcement, the fact that a child is a minor does NOT necessarily prohibit the investigator from speaking to the child without the parent present.  However, the absence of a parent may eventually become a factor for the court to consider when determining the voluntariness of the provided statement.  Secondly, if the child suffers from a language barrier, a mental infirmity, or a difficulty processing or conveying information, ANY statements made to parents or law enforcement may be in danger of being misconstrued, and subsequent correction may appear to be contrived.  In these situations, and under certain circumstances, a parent may become a privileged party and benefit from the confidentiality of communications if the parent is necessary to interpret or assist the child’s attorney in understanding the child’s statements.  Again, there is no general rule providing for this status, and each situation shall be determined on a case-by-case basis.  Courts strictly construe the application of any evidentiary privilege in accord with the law. The information in this article deals with highly complicated legal issues regarding the role of a parent in the investigation of a child for alleged delinquent or criminal conduct, and the providing of statements to law enforcement in a criminal investigation.  We cannot stress enough our strong recommendation that any parent confronted with a criminal accusation against their child should seek legal counsel prior to speaking with the child, or advising that the child speak with law enforcement.  In our experience, the criminal justice system serves as a poor substitute for what may be well-intended parental “guidance or discipline”.  But, that is a subject for another article. If you or your child encounters criminal accusations, you can call us at the contact numbers provided on this website.  Be smart and be safe.
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Posted in news-and-media:News and Media
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The Constitutions of the United States and the State of Florida both provide constitutional protections against self-incrimination and the right to have counsel present prior to or during any questioning by law enforcement. In simplified terms, this means that any person accused of committing a crime, or a delinquent act, has an absolute right to remain silent with regard to the allegations, and to have an attorney present before or during any questioning by law enforcement. Children, even minor children, accused of criminal or delinquent acts are protected by these, and other rights.
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Sep  18,  2010
By admin
Carlson, Meissner, Hart & Hayslett, P.A. In September 2006, 6.7 million Americans received an average of $944.90 in Social Security Disability Benefits.  During that same month, 7.2 million Americans received Supplemental Security Income payments at an average of $453.50.  The latest statistics available from the Social Security Administration show that as of December 2004, 377,030 Floridians received some type of disability benefit from Social Security.[1] While the Social Security Administration has a fabulous website full of practical information, the process of filing for and appealing decisions made by the Administration can be a frustrating and daunting process.  The purpose of this article is to provide you with some background
TYPES OF SOCIAL SECURITY BENEFITS There are two main types of benefits available from the Social Security Administration:
  1. Social Security Disability Benefits (SSD) and
  2. Supplemental Security Income (SSI).[2]
SSD is available to those individuals who meet the Administration’s criteria of being a disabled person and have earned the status of being an insured person.  When you are not an insured person but are still disabled under the Administration’s criteria you may qualify for SSI benefits when you meet a minimum level of assets. QUALIFICATIONS FOR SOCIAL SECURITY DISABILITY To qualify for SSD, you must have paid in enough past earnings into the Social Security Administration through payroll taxes to be considered an insured individual.  When you earn a certain amount of money and pay Social Security tax on it, you earn credits.  For example, in 2006 you earn 1 credit for every $970.00 in wages.  To be considered disabled and therefore eligible for benefits you cannot engage in substantial gainful activity (definition: you can’t make more than $830.00 per month for 2006), you can’t do any type of work that you have performed in the last 15 years (supported by the opinion of a doctor), and you will be in this condition for at least 12 months or your condition has not lasted for 12 months but you are terminally ill.  It is important to have medical documentation to support your claims that you are unable to work. QUALIFICATIONS FOR SUPPLEMENTAL SECURITY INCOME The SSI program is funded by general tax revenue, not by taxes specifically earmarked for Social Security.  This program provides disabled individuals money benefits to enable them to meet basic needs.  To qualify for SSI you can only have limited assets, meaning that you have these amounts available to you at any given time.  Currently, the asset limit is $2,000 for individuals and $3,000 per couple. APPLYING FOR SSD/SSI BENEFITS There are three stages in the process for applying for SSD/SSI benefits:
  1. Initial Application
  2. Reconsideration
  3. Hearing
1. Initial Application The initial application can be completed at your local Social Security office, or on line at www.ssa.gov.  Whether you apply in person or on line, it is helpful to have available to you lists of your medications, any doctors that you have seen and copies of all of your medical records.  Once a disability determinations officer reviews your application you will either be accepted as disabled or denied.  This process takes approximately 30 – 90 days but can take longer. 2. Reconsideration If you receive an initial denial from Social Security, your next step is to file a Request for Reconsideration.  At the time of the Reconsideration Request, you provide Social Security with updated medical and personal information.  You may also be asked to submit to an evaluation by a physician contracted by Social Security.  This doctor will provide Social Security additional reports and comments regarding his or her opinion about your conditions and your ability to work.  Once the additional information is gathered and reviewed by a different disability determinations officer, you will either be accepted as disabled or denied.  This process also takes 30 – 90 days but can take longer.  It is my recommendation that prior to requesting reconsideration you obtain professional representation. 3. Hearing If you receive a denial at the Reconsideration stage, the next step in the process is to request a hearing.  Currently, the wait to obtain a hearing is somewhere between 18 -24 months.  Approximately 2 months prior to your hearing you will receive a list of the exhibits that are contained in your file at Social Security and it is your responsibility to update the Judge who will be hearing your case with any new records prior to the hearing.  Some judges also require written memoranda regarding the legal issues involved in your case. CONSIDER A SOCIAL SECURITY DISABILITY ATTORNEY DURING THE PROCESS While an attorney can help you at any point during your application process, if you do not have representation by the time you reach the hearing stage it is my recommendation that you contact a local Social Security Disability Attorney.  That individual has the skills and knowledge to make sure that you are properly represented at the hearing.  He or she will know how to elicit testimony from you and any experts hired by the Administration, including medical and vocational experts.  It is oftentimes the case that the issues in disability cases rise and fall on the opinions of those experts.  So it truly is in your best interest to obtain competent representation at this stage. Some time after the hearing, generally 30 – 90 days, the Administrative Law Judge who heard your case will provide you with a written opinion of the decision made on your case – either Fully Favorable or Unfavorable.  If you receive a Fully Favorable decision, great!  In the decision will be the date that the judge determined you became disabled and your benefits, either back monetary benefits, future monthly benefits, and Medicare eligibility will be based upon that date.  If your decision is Unfavorable, do not worry. There is another stage in the appeal process, review by the Appeals Council.  As with other appeals, you must act on this within 60 days to preserve your appeal date.  At this stage you ask the Appeals Council to review the Judge’s decision in your case.  The Appeals Council has the ability to order a re-hearing on your case or may find that the Judge ruled properly in your case by denying your benefits.  If this occurs, then the next step is filing suit in Federal Court. While the process for obtaining Social Security benefits is arduous, it is important to keep your eyes on the prize, your ultimate monthly benefit and medical care.  There are some social services available to assist you while your application is pending, but times may be tough.  Representation by a Social Security Disability Attorney or other qualified individual can also help make the process smoother and lead you to a successful ending. [1] Statistics listed were obtained on the official Social Security Administration website, www.ssa.gov. [2] There are benefits available for disabled children and some disabled individuals may be able to draw on the insured status of their spouses, either living or dead.  For information regarding those claims and individual eligibility, you should contact your local Social Security office.
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Posted in social-security-disability:Social Security
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Information about benefits available from the Administration, qualifying for those benefits and the procedure that you must follow to obtain benefits.
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Sep  18,  2010
By admin
Carlson, Meissner, Hart & Hayslett, P.A. There is a new program being instituted at Social Security to help move along social security disabilities cases that should obviously be approved but continue to be delayed.  This new program is called the Compassionate Allowance program.
Compassionate Allowance Program | Social Security Eligibility
Social Security published the initial list of social security eligibility conditions that fall under the Compassionate Allowance program (a full list of the conditions is below).  If you have one of these social security eligibility conditions, you are eligible for the expedited decision. A case can be expedited at any level of the application: initial, reconsideration, hearing and Appeals Council.  Of course if you have any of the listing social security eligibility conditions you should notify Social Security of that fact when you make your initial application.  The Compassionate Allowance program, however, allows you to get into the program if at some point during your claim you develop one of the enumerated conditions. To get into the Compassionate Allowance program, you must have medical records that prove that you have the specific condition.  Once you get into the program, a special, more experienced worker at Social Security reviews your claim.  This review is supposed to start within one day of Social Security recognizing that you have one of the special Compassionate Allowance conditions.  However, in the publicized instructions on Compassionate Allowance claims, Social Security is not allowed to inform you if the case is a Compassionate Allowance case unless you specifically ask. Once the Social Security evaluator makes a decision under the Compassionate Allowance procedure, there is another level of review.  The case must next be reviewed by a medical or psychological consultant to determine if there is enough evidence to support the decision.  Then, Compassionate Allowance cases are still subject to the quality review which can cause further delays in the processing of your case. Having a social security lawyer on your side can help make the process a little easier on you. If during your Social Security disabilities case you develop one of the Compassionate Allowance conditions, you must notify Social Security as soon as possible.  Remember also to keep your social security lawyer  apprised of any new diagnosis, regardless of whether or not it falls under the Compassionate Allowance list. Contact a social security lawyer to learn more about social security disabilities that meet the eligibility requirements. Learn  more at Carlson Meissner today!
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Posted in social-security-disability:Social Security
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The Compassionate Allowance program calls for an expedited decision for those cases that are considered “dire.”
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Sep  17,  2010
By admin
CREDIT CARD SHOCK By Paul A. Meissner Carlson, Meissner, Hart & Hayslett, P.A. Almost everyone carries and uses credit cards.  Some folks have a bundle of cards, not because they asked for them, but in response to a flood of unsolicited offers over the past several years.
We are accustomed to receiving offers and information regarding credit cards.  Most of the correspondence includes a small print-multi page document titled “Terms and Conditions”.  Until about September of last year, these documents were relatively benign, and routinely ignored.  Since September 2009, almost every card issuer has changed the terms and conditions of card usage in very substantial ways. Interest rates, annual fees, and other fees have been increased almost beyond belief.  Because of changes in Federal Law, you received these notices, and were given the right to opt out of the card (canceling), and pay off any remaining balance over time at old interest rates. Most people didn’t read the notices, or, if they read, did not opt out.  The result, is that finance charges will increase and escalate in 2010 in accordance with the new rates and fees.  Carefully examine your credit card statements over the next several months, and pay particular attention to finance charges.  Many people will find it difficult to pay off balances, and will only be able to pay interest.  We all need to pay attention to the fine print of our card agreements, and explore ways to avoid interest rates that often exceed 20%.
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Posted in economic-perspective:Economic Perspective
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As a result of the recent economic downturn, many people who once paid off their purchases monthly have now been carrying significant balances.
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Sep  14,  2010
By admin
Tony Viera
Carlson, Meissner, Hart and Hayslett is pleased to announce that a new attorney has joined our firm, Antonio L. Viera. Antonio (Tony) was born in San Juan Puerto Rico and has lived in Tampa since the age of 8. Tony is fluent in both Spanish and English. Although Tony has been offered the opportunity to represent insurance companies in the past, he has never done so because he has dedicated his legal career to representing individuals in need. Tony is a Certified Mediator, and he has been representing individuals in Workers' Compensation, Social Security Disability and Personal Injury. He will be located in our Clearwater and Tampa offices. We welcome our newest team member, Antonio "Tony" Viera.
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Posted in announcements:Announcements
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Carlson, Meissner, Hart and Hayslett is pleased to announce that a new attorney has joined our firm, Antonio L. Viera.
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