Evidence Flashcards
SUMMARY OR COMMENT BY JUDGE
A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused
RULE OF COMPLETENESS
If one side introduces a part of writing, the other side can introduce other parts of that writing for context
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time
…to introduce any other part
…or any other writing or recorded statement
…that in fairness ought to be considered contemporaneously
MATTERS WHICH MUST BE JUDICIALLY NOTICED
A court shall take judicial notice of laws that bind the judge i.e.,:
Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States.
Florida rules of court that have statewide application, its own rules, and the rules of the United States courts adopted by the United States Supreme Court.
Rules of court of the United States Supreme Court and of the United States Courts of Appeal
MATTERS WHICH MAY BE JUDICIALLY NOTICED
Decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the United States
Laws of the foreign nations and of an organization of nations
i.e., laws that don’t bind the judge which can include administrative agencies, local ordinances, Federal Register, etc.
Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court
Facts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned
COMPULSORY JUDICIAL NOTICE UPON REQUEST
A court shall take judicial notice of any matter in s. 90.202 when a party requests it AND:
- Gives each adverse party timely written notice of the request, to enable the adverse party to prepare to meet the request; AND
- Furnishes the court with sufficient information to enable it to make judicial notice of the matter
DEFINITION OF RELEVANT EVIDENCE
Relevant evidence is evidence tending to prove or disprove a material fact
EXCLUSION OF RELEVANT EVIDENCE
Excluded if its probative value is substantially outweighed by the danger of:
- unfair prejudice,
- confusion of issues,
- misleading the jury, OR
- needless presentation of cumulative evidence.
CHARACTER EVIDENCE
Evidence of a person’s character or trait of character is inadmissible to prove action in conformity with it on a particular occasion
EXCEPTIONS TO CHARACTER EVIDENCE
Character of accused:
Evidence of a pertinent trait of character offered by an accused,
OR
by the prosecution to rebut the trait
When the accused does this, it opens the door for the prosecution to rebut
Character of a victim:
(A) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait
Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor
OTHER CRIMES. WRONGS, OR ACTS
Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including but not limited to,
- proof of motive,
- opportunity,
- intent,
- preparation,
- plan,
- knowledge,
- identity or absence of mistake or accident
It is inadmissible when the evidence is relevant solely to prove bad character or propensity
PROVING CHARACTER
No opinion testimony allowed here
REPUTATION: When evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation
Rebuttal must be proved by reputation only
SPECIFIC INSTANCES OF CONDUCT: When character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct
ROUTINE PRACTICE
Evidence of the routine of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible, to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.
This applies to routine practice of a business not a person
Habit of a person is not admissible to prove conduct in conformity with the habit but may be admissible to corroborate other evidence
ADMISSIBILITY OF SUBSEQUENT REMEDIAL MEASURES
Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event
But you can use it to prove other things
This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted or impeached
ADMISSIBILITY OF COMPROMISE AND OFFERS TO COMPROMISE
Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiation concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value
ADMISSIBILITY OF PAYMENT OF MEDICAL OR SIMILAR EXPENSES
Evidence of furnishing, or offering, or promising to pay medical or hospital expenses or other damages occasioned by an injury or accident is inadmissible to prove liability for the injury or accident
ADMISSIBILITY OF STATEMENTS EXPRESSING SYMPATHY
The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence in a civil action related to accidents.
A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible pursuant to this section
ADMISSIBILITY OF OFFER TO PLEAD GUILTY, NOLO CONTENDERE, WITHDRAWN PLEAS OF GUILT
Evidence of
- a plea of guilty, later withdrawn;
- a plea of nolo contendere ( No contest), OR
- an offer to plead guilty or nolo contendere
…to the crime charged or any other crime is inadmissible in any civil or criminal proceeding.
Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution of perjury
LAWYER-CLIENT PRIVILEGE
Privilege covers only communication between lawyer and client as it relates to the litigation or impending litigation
PSYCHOTHERAPIST-PATIENT PRIVILEGE
A person authorized to practice medicine or licensed or certified as a psychologist in any state or nation, or reasonably believed by the patient so to be, who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
OR
A person licensed or certified as a clinical social worker, marriage, and family therapist, or mental health counselor under the laws of this state, who is engaged primarily in diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction
PHYSICIAN-PATIENT PRIVILEGE
There is none in Florida. Communications are confidential but records and testimony can be subpoenaed.
HUSBAND-WIFE PRIVILEGE
A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife
Spouses can be called to testify against each other
Can be invoked by either spouse
Communications are privileged but not observations. A spouse can be forced to testify about observations
CLERGY-PARISHIONER PRIVILEGE
A “member” of the clergy 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 so to be by the person consulting him or her
The communication between them is confidential. if made for the purpose of seeking spiritual counsel
Privilege can be claimed by
- the person
- guardian or conservator
- personal representative
- member of the clergy
NOT the spouse
COMPETENCY OF PERSONS AS WITNESSES: JUDGE
The JUDGE presiding at the trial or action is NOT competent to testify as a witness in that trial. An objection is not necessary to preserve the point.
EXCEPTION: By agreement of the parties, the trial judge may give evidence on a purely formal matter to facilitate the trial or the action
COMPETENCY OF PERSONS AS WITNESSES: JURY
A member of the jury is not competent to testify as a witness in a trial when he or she is sitting as a juror
Juror can testify to matters of jury misconduct but nohow they came to their verdict
IMPEACHMENT
You can impeach the other side’s witness and yours too
METHODS OF IMPEACHMENT
Introducing statements of the witness which are inconsistent with the witness’s present testimony
Showing the witness is biased
Attacking the character of the witness based on prior crimes
Showing of a defect of capacity, ability or opportunity in the witness to observe, remember or recount the matters about which the witness testified
Proof by other witnesses that material facts are not as testified to by the witness being impeached
CHARACTER OF WITNESS TO IMPEACH
A party may attack or support the credibility of a witness, including an accused, by evidence in the form of reputation
EXCEPTION
The evidence may refer only to character relating to truthfulness
Evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence (you cannot bolster the witness)
USING CONVICTION OF CERTAIN CRIMES AS IMPEACHMENT
A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime IF
1) The crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, OR
2) The crime involved dishonesty or a false statement regardless of the punishment
In Florida a witness’s credibility may be impeached with (1) any felony, or (2) any crime involving dishonesty.
The “Rule 403 Balancing Test” (probative value vs. unfair prejudice, etc.) applies to all convictions, regardless of the nature of the crime (felony or dishonesty) and regardless of the identity of the witness (accused or non-accused).
Note: Petit Theft (like shoplifting) is considered a crime of dishonesty in Florida!
You cannot ask about the specifics of the prior convictions, unless the defendant lies that they were not convicted or to the number of convictions
WHEN YOU CANNOT USE CRIMES TO IMPEACH
Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness
No set timeline for remoteness
No remoteness for criminal actions
Evidence of juvenile adjudications are inadmissible under this subsection
REFRESHING THE WITNESS’ MEMORY
If one party uses something to refresh a witnesses’ recollection, the other side can see it, use it for cross-examination and possibly enter it into evidence
WITNESS’S PRIOR STATEMENT
If you’re trying to impeach a witness with a prior written or oral statement, the witness is allowed to see the contents of the prior statement, on motion of the adverse party
Cannot use extrinsic evidence of prior inconsistent statement UNLESS
- the witness is first afforded an opportunity to explain or deny the prior statement AND
- the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require
It is allowed only when the witness denies making the statement or does not distinctly admit to making it
THE COURT CALLING WITNESSES
The court (the judge) may call witnesses whom all parties may cross-examine
The court may interrogate witnesses, whether called by the court or by a party
EXCEPTIONS TO WITNESS SEQUESTRATION
A party who is a natural person.
In a civil case, an officer or employee of a party that is not a natural person. The party’s attorney shall designate the officer or employee who shall be the party’s representative.
A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s case
If it is a criminal case:
the victim of the crime,
the victim’s next of kin,
the parent or guardian of a minor child victim,
or a lawful representative of such person,
unless, upon motion, the court determined such person’s presence to be prejudicial
OPINION TESTIMONY OF LAY WITNESSES
A non-expert can testify about their opinion when
Lay persons (non-experts) can testify about their opinions, if they cannot adequately testify without expressing opinions, and the opinion won’t be misleading AND
The opinions and inferences do not require a special knowledge, skill, experience or training
EXPERT TESTIMONY
Daubert Standard:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify about it in the form of opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
OPINION ON AN ULTIMATE ISSUE
Witnesses are allowed to give their opinion on the very matter that the jury is supposed to decide
DISCLOSURE OF FACTS OR DATA UNDERLYING - EXPERT OPINION
An expert may testify in terms of opinion or inference and give reasons without prior disclosure of the underlying facts or data
On cross-examination the expert shall be required to specify the facts or data
If the party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony established the underlying facts or data
AUTHORITY OF LITERATURE FOR CROSS-EXAMINATION
Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness
…if the expert witness recognized the author or writing to be authoritative
OR notwithstanding non-recognition by the expert witness, if the trial court finds the author or the writing to be authoritative and relevant to the subject matter
Cannot use this to bolster the expert witness, only to impeach on cross-examination
HEARSAY RULE: DEFINITION
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted
This includes non-verbal actions intended to be an assertion
HEARSAY EXCEPTIONS
Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceedings or in a deposition;
Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; OR
One of the identification of a person made after perceiving the person
HEARSAY EXCEPTIONS - DECLARANT DOES NOT HAVE TO BE AVAILABLE TO TESTIFY
Spontaneous statement
Excited utterance
Then-existing mental, emotional or physical condition
Statements for the purpose of medical diagnosis or treatment
Family Records
Reputation concerning personal or family history
HEARSAY EXCEPTIONS - DECLARANT MUST BE AVAILABLE TO TESTIFY
Unavailability could be based on
Privilege Refusal despite court order Lack of memory Death Physical or mental illness Cannot be served with process
Statement under belief of impending death
Statement against interest
