Can a Prosecutor’s “Blabbing” Actually Win You a New Trial in Florida?

By: John Guidry

It’s tough losing a case. But I’ll tell you what—it is a great feeling when a conviction gets overturned on appeal because a prosecutor made a critical mistake. Every Orlando defense attorney has been in a trial where a prosecutor said something they shouldn’t have. They get overzealous, they start “blabbing,” and suddenly they cross a line that the law simply doesn’t allow them to cross.

But at what point do those words cross the line and cause an appellate court to order a new trial? I’ve spent over 30 years in the trenches of Central Florida courtrooms, and I’ve seen time and again that when the State tries to play fast and loose with the rules, the higher courts aren’t afraid to step in.

Believe the prosecutor crossed a line in your Orlando trial? Improper comments that mislead the jury can be grounds for a new trial. Call my office today at (407) 423-1117 to discuss your case.

A Real-World Example: The Publix Shoplifting Case

The case of Covington v. State, 75 So.3d 371 (Fla. 4th DCA 2011), started as a simple grand theft case involving shoplifting groceries from a Publix. It’s a textbook example of how a prosecutor can snatch defeat from the jaws of victory.

• The Defense Argument: At the end of the trial, the defense attorney pointed out to the jury that the State failed to produce a surveillance video of the incident. This “absence of evidence” is a perfectly legal and classic way to create reasonable doubt.
• The Prosecutor’s Reversible Error: Instead of sticking to the facts, the prosecutor told the jury: “Gosh, video that existed, it was a surveillance, State didn’t show it to you. Well, you know what? They [the defense] could have got it too. They could have shown it to you.”
• Why This is “Insane”: This comment misled the jury into thinking the defendant had a duty to prove their innocence. Under the U.S. Constitution and Florida law, that is a flat-out lie.

The Legal Rule: The Burden of Proof NEVER Shifts

The prosecutor’s argument violated the most fundamental rule of our justice system. As recently as 2024 and 2025, Florida courts (like in Sheely v. State, 4D2023-2171) have continued to hammer home that the State has the sole burden of proving a case.

• The State’s Job: They brought the lawsuit; they have to present the evidence.
• The Defendant’s Right: A defendant must prove absolutely nothing. You never have an obligation to present evidence, including a video that might prove you didn’t do it.
• The Court’s Ruling: Citing the Florida Supreme Court in Hayes v. State, the court in Covington made it clear: the State cannot comment on a defendant’s failure to produce evidence because it leads the jury to believe the defendant carries the burden.

Because the prosecutor tried to shift that burden, the appellate court overturned the conviction. It was a failure of proof, and justice was eventually served.

John’s Takeaways

• The State Owns the Burden: In any trial in Orange or Seminole County, the State must prove every element. You are not required to say a single word or show a single document.
• Silence is Not Guilt: If a prosecutor even hints that you should have “shown the jury something” to prove your innocence, they are committing a reversible error.
• Objections Matter: A skilled trial attorney must be ready to object instantly. If we don’t catch the “blabbing” in the moment, it is much harder to fix on appeal.
• “May” vs. “Will”: Just like in shoplifting cases, this rule applies to everything from DUI to serious felonies across Osceola, Lake, Brevard, and Volusia County.
• Fair Fight: The rules are there to ensure a fair trial. When the prosecutor cheats by shifting the burden, we hold them accountable.

I have been holding prosecutors accountable for their words in Central Florida since 1993. If you are facing a trial, you don’t need a “stuffy academic”; you need a trial lawyer who knows the rules of a fair fight and won’t let the State slide on a “failure of proof.”

The system is harsh, but it has rules. Let’s make sure they follow them.

Facing a trial? Call John at (407) 423-1117.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.