Caribo v. State
The Fourth DCA affirmed a burglary conviction, holding that defense counsel's cross-examination question eliciting the defendant's own exculpatory hearsay statement ('he didn't have any jewelry on him') opened the door to impeachment of the defendant's credibility with his 23 felony and 5 misdemeanor dishonesty-related convictions under sections 90.806(1) and 90.610, subject to a limiting instruction. Judge Gross dissented, arguing the statement was not hearsay because it was offered for a non-hearsay purpose (to show cooperation with police), so section 90.806 impeachment should never have been triggered, and that even if hearsay, the probative value was substantially outweighed by unfair prejudice under section 90.403.
Key facts
- Defendant was convicted of burglary in trial court; Fourth DCA affirmed on appeal.
- During cross-examination of a witness, defense counsel elicited an out-of-court statement attributed to the defendant ('he didn't have any jewelry on him') that the defendant did not testify to personally.
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Why it matters
This opinion, with a substantive dissent, sharpens the analysis of when defense counsel's own questioning can 'open the door' to admission of a non-testifying defendant's extensive criminal history under the section… — full analysis with a trial
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