Evidence

Question 1

SUMMARY OR COMMENT BY JUDGE

Answer 1

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

Question 2

RULE OF COMPLETENESS

Answer 2

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

Question 3

MATTERS WHICH MUST BE JUDICIALLY NOTICED

Answer 3

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

Question 4

MATTERS WHICH MAY BE JUDICIALLY NOTICED

Answer 4

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

Question 5

COMPULSORY JUDICIAL NOTICE UPON REQUEST

Answer 5

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

Question 6

DEFINITION OF RELEVANT EVIDENCE

Answer 6

Relevant evidence is evidence tending to prove or disprove a material fact

Question 7

EXCLUSION OF RELEVANT EVIDENCE

Answer 7

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.

Question 8

CHARACTER EVIDENCE

Answer 8

Evidence of a person’s character or trait of character is inadmissible to prove action in conformity with it on a particular occasion

Question 9

EXCEPTIONS TO CHARACTER EVIDENCE

Answer 9

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

Question 10

OTHER CRIMES. WRONGS, OR ACTS

Answer 10

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

Question 11

PROVING CHARACTER

Answer 11

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

Question 12

ROUTINE PRACTICE

Answer 12

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

Question 13

ADMISSIBILITY OF SUBSEQUENT REMEDIAL MEASURES

Answer 13

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

Question 14

ADMISSIBILITY OF COMPROMISE AND OFFERS TO COMPROMISE

Answer 14

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

Question 15

ADMISSIBILITY OF PAYMENT OF MEDICAL OR SIMILAR EXPENSES

Answer 15

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

Question 16

ADMISSIBILITY OF STATEMENTS EXPRESSING SYMPATHY

Answer 16

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

Question 17

ADMISSIBILITY OF OFFER TO PLEAD GUILTY, NOLO CONTENDERE, WITHDRAWN PLEAS OF GUILT

Answer 17

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

Question 18

LAWYER-CLIENT PRIVILEGE

Answer 18

Privilege covers only communication between lawyer and client as it relates to the litigation or impending litigation

Question 19

PSYCHOTHERAPIST-PATIENT PRIVILEGE

Answer 19

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

Question 20

PHYSICIAN-PATIENT PRIVILEGE

Answer 20

There is none in Florida. Communications are confidential but records and testimony can be subpoenaed.

Question 21

HUSBAND-WIFE PRIVILEGE

Answer 21

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

Question 22

CLERGY-PARISHIONER PRIVILEGE

Answer 22

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

Question 23

COMPETENCY OF PERSONS AS WITNESSES: JUDGE

Answer 23

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

Question 24

COMPETENCY OF PERSONS AS WITNESSES: JURY

Answer 24

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

Question 25

IMPEACHMENT

Answer 25

You can impeach the other side’s witness and yours too

Question 26

METHODS OF IMPEACHMENT

Answer 26

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

Question 27

CHARACTER OF WITNESS TO IMPEACH

Answer 27

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)

Question 28

USING CONVICTION OF CERTAIN CRIMES AS IMPEACHMENT

Answer 28

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

Question 29

WHEN YOU CANNOT USE CRIMES TO IMPEACH

Answer 29

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

Question 30

REFRESHING THE WITNESS’ MEMORY

Answer 30

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

Question 31

WITNESS’S PRIOR STATEMENT

Answer 31

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

Question 32

THE COURT CALLING WITNESSES

Answer 32

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

Question 33

EXCEPTIONS TO WITNESS SEQUESTRATION

Answer 33

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

Question 34

OPINION TESTIMONY OF LAY WITNESSES

Answer 34

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

Question 35

EXPERT TESTIMONY

Answer 35

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.

Question 36

OPINION ON AN ULTIMATE ISSUE

Answer 36

Witnesses are allowed to give their opinion on the very matter that the jury is supposed to decide

Question 37

DISCLOSURE OF FACTS OR DATA UNDERLYING - EXPERT OPINION

Answer 37

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

Question 38

AUTHORITY OF LITERATURE FOR CROSS-EXAMINATION

Answer 38

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

Question 39

HEARSAY RULE: DEFINITION

Answer 39

“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

Question 40

HEARSAY EXCEPTIONS

Answer 40

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

Question 41

HEARSAY EXCEPTIONS - DECLARANT DOES NOT HAVE TO BE AVAILABLE TO TESTIFY

Answer 41

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

Question 42

HEARSAY EXCEPTIONS - DECLARANT MUST BE AVAILABLE TO TESTIFY

Answer 42

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