Evidence Flashcards
Admissions exception and Florida distinction
An admission is a statement of a party offered by the opponent at trial. A statement may include a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion. An admission can be made by an agent and be treated as if made by the declarant.
In Florida, admissions are an exception to the hearsay rule. Under the FRE, admissions are admissible as non-hearsay rather than as an exception to hearsay.
Dying declaration exception to hearsay & Florida distinction
A dying declaration requires:
- (1) Statement must concern cause or circumstances of death;
- (2) Unavailable declarant;
- (3) Applies to all criminal and civil cases (under FRE, only admissible in criminal cases if homicide);
- (4) Declarant’s belief of imminent death.
A declarant is unavailable if they are dead, outside the jurisdiction of the court, refuse to testify, or claim some privilege.
Past recollection recorded exception to hearsay and Florida distinction
Although Florida allows the admission of recorded recollections concerning matters about which the witness once had knowledge but now cannot sufficiently recall, the exception applies only when the memorandum or record was made by the witness.
Federal Rules allow adopted statements to be admitted as past recollection recorded.
Learned treatises as evidence & Florida distinction
Statements made in treatises may be read into evidence once authoritativeness is established. Authoritativeness can be established by judicial notice or by expert testimony as to authority. The treatise itself does not get admitted, just the portion of it being used.
Unlike the federal rule, the FEC does not allow the use of learned treatises to prove the truth of the matter asserted (i.e., it is not a hearsay exception). Therefore, it cannot be used for substantive purposes. Learned treatises may only be used to cross-examine an expert witness.
Admissibility of photos in Florida
Under Florida law, in a prosecution for a crime involving the wrongful taking of property, a photograph of the property alleged to have been wrongfully taken is competent evidence of the property and is admissible to the same extent as if the property were introduced.
Certain information must be included: written description of the property alleged to have been wrongfully taken, the name of the owner of the property, the location where the alleged wrongful taking occurred, the name of the investigating law enforcement officer, the date the photograph was taken, and the name of the photographer, all must be written on the back of the photograph.
No such FRE.
Admissibility of statements of sympathy
Evidence of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to a person’s pain, suffering, or death as a result of an accident, and made to that person or that person’s family is inadmissible in a civil action.
However, a statement of fault that is part of or in addition to these statements, writings, or gestures is admissible.
[Different from FRE]
Florida professional journalist privilege
Professional journalists have a privilege not to be a witness concerning, and not to disclose, information obtained while actively gathering news.
A “professional journalist” is a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine.
Florida marital privilege
Florida does not recognize spousal testimony privilege or spousal immunity. (Unlike federal law that recognizes a spousal privilege in criminal cases.)
However, Florida does protect marital communications. Its marital communications privilege allows a spouse to refuse to disclose (or prevent the other spouse from disclosing) communications they made confidentially while married.
Also, the joint participants’ exception, which abrogates the communication privilege when both spouses are involved in a crime, does not apply in Florida.
Can prior bad acts be used to impeach a witness in Florida? How does this differ from criminal convictions?
In Florida, specific instances of conduct not resulting in a conviction are not admissible to impeach the credibility of a witness.
Florida follows the view of the Federal Rules regarding impeachment with criminal convictions. The conviction must be for any felony or misdemeanors involving dishonesty or false statement. Evidence of convictions are admissible even if the witness has been pardoned for the offense, but the pardon is admissible to rehabilitate the witness.
Psychotherapist-patient privilege and Florida distinction
Federal courts recognize a privilege for confidential communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and their patient/client.
Florida similarly recognizes a psychotherapist-patient privilege for confidential communications between a patient and a psychotherapist for the purpose of diagnosis of a mental or emotional condition (including alcoholism and other drug addiction). The definition of “psychotherapist” is broad, and includes medical doctors, advanced registered nurse practitioners, licensed or certified psychologists, and treatment personnel of licensed mental health facilities.
Florida clergy-penitent privilege
Florida recognizes a clergy-penitent privilege similar to that recognized by federal courts. A confidential communication between a person and a clergy member made privately for the purpose of seeking spiritual counsel and advice in the usual course of practice is privileged.
Under the statute, a “clergy member” is a priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed to be so by the person consulting them.
The privilege belongs to the person seeking the spiritual counsel (not the clergy member) and may be claimed by:
- (a) the person;
- (b) the clergy member, on behalf of the person;
- (c) a conservator or guardian of the person; or
- (d) the personal representative of a deceased person.
By which methods can character evidence be proved in Florida? What is required for it to be admitted?
In Florida, character (when admissible) cannot be proved by opinion testimony. Generally, the only permissible method is by reputation testimony. Reputation evidence must relate to the character of the witness for truthfulness and the court must find that the witness is in fact aware of the person’s reputation in the community.
What is the rule regarding judicially noticed facts in Florida?
In Florida, the court has the discretion to determine whether judicial notice of a fact is conclusive. This is true in both criminal and civil cases. This is different from the federal rule, which states that such notice is conclusive in civil cases but not in criminal cases.
Florida accident report privilege
Florida recognizes a privilege for written reports made by persons involved in motor vehicle accidents. Such reports are for the confidential use of the Department of Highway Safety and are not admissible in either a criminal or civil trial that arises out of the accident.
Statements made to a law enforcement officer for the purpose of completing the report are also included within the privilege, except that at a criminal trial, an officer may testify to any statement made to them by the person involved in the accident (provided that person’s privilege against self-incrimination is not violated, in that case, Miranda rights must have been given). The privilege does not attach to information that the officer learns by observing the accident scene independently.
Note: The results of breath, urine, and blood tests for alcohol, chemicals, or controlled substances conducted as part of a traffic accident investigative report are admissible in civil and criminal proceedings. They are not a communication privileged under the accident report privilege.
What are the rules for hypnotically refreshed testimony in Florida?
The Florida Supreme Court has examined the issue of hypnosis in criminal cases (it has not yet reached this issue in civil cases). The fact that a witness has undergone hypnosis does not render the witness incompetent to testify to a fact recalled prior to hypnosis if the fact was properly recorded (for example, reduced to writing or recorded by audio or video).
However, testimony based on a memory refreshed or enhanced through hypnosis is inadmissible per se in a criminal trial. Moreover, a witness cannot testify to any new matter discovered through hypnosis.
