Evidence Flashcards
FL v. Federal Law
Witness: Ultimate Issue
Ultimate Issue. An expert witness may testify on the ultimate issue in the case, however, an expert may not state an opinion whether a criminal defendant had the requisite mental state of the crime charged.
FL Distinction: May state an opinion on whether the defendant in a criminal proceeding had the requisite mental state of crime charged. No witness can offer an opinion as to the guilt or innocence of a criminal defendant.
Chain of Custody
Chain of custody. witness testimony accounting for the whereabouts of the item from the time it was obtained up until its introduction at the trial.
FL Distinction. Where there is a gap, the opponent must show a probability, which is more than a mere possibility, of tampering to exclude the evidence.
Hearsay: Former Testimony
Former Testimony. Testimony given by a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if opposing party had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination.
FL Distinction. Former testimony can be offered against a party, whether or not available, (i) in any proceeding if the party had opportunity and similar motive to develop the testimony, and (ii) in a subsequent civil proceeding if it was offered in any proceeding against another party with a similar interest
Hearsay: Dying Declaration
Dying Declaration. Statements made in anticipation of imminent death that pertains to the cause or circumstances of the death. This exception is only available in homicide cases and civil cases.
FL Distinction. Statements made by a declarant that reasonably believes death is imminent and concern the cause or circumstances of the death. This exception is available in all civil and criminal trials. The declarant does not need to verbalize his belief of impending death; belief may be established by other evidence.
Hearsay: Statement of Personal or Family History
A Statement concerning the unavailable declarants own birth, adoption, marriage, divorce, legitimacy, familial relationship, or other similar fact of personal or family history.
Hearsay: Forfeiture by Wrongdoing
Forfeiture Against Wrongdoing. A statement offered against a party that wrongfully caused the declarants unavailability. The wrongdoing may be accomplished by a deliberate act or by acquiescing another to act.
FL Distinction. Statement by deceased or Ill declarant similar to one previously admitted. In an action against a personal representative, heir, assignee, legatee, devisee, trustee, or survivor of a deceased person, or guardian of a mentally incompetent person, a written or oral statement made by an unavailable declarant regarding the same subject matter as another statement that was previously offered and admitted into evidence by an adverse party is admissible as a hearsay exception.
Hearsay: Recorded Recollection
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Recorded Recollection. When a witness is unable to testify about a matter for which a record exist, the record must be one that the witness once knew about; record was made or adopted by the witness when the matter was fresh in their memory; the record accurately reflects the witness knowledge; and the witness state that she cannot recall the event well enough, even after consulting the record. The record may be read into evidence, but may be received as an exhibit only if offered by an adverse party.
- FL Distinction: Florida requires that the witness confirm the accuracy of the record. If she cannot recall making the record, the witness may verify the record by testimony that: (1) she has a habit of recording such matters; or (2) witness believes the statement is correct because the witness would have been truthful in providing the statement.
Records of Regularly Conducted Activity
Records of Regularly Conducted Activity. A record that:
(1) is kept in the regular course of business;
(2) making the record is a regular practice; and
(3) the record was made at or near the time by someone with knowledge.
Records prepared in anticipation of litigation may not qualify due to lack of trustworthiness. Evidence that a matter is not included in a record may be admissible to prove that the matter did not occur or exist.
FL Distinction. An opinion within a business record is generally inadmissible, unless made by a lay-witness or expert witness according the the Opinion Testimony.
Further, a records custodian may be qualified to testify regarding the organizations regular business practices.
Public Records
Public Records. A statement of a public office or agency that sets out (1) the activities of the office or agency: (2) an observation of a person under a duty to report the observation; or (3) Factual findings of a legal investigation.
Police Reports. A statement made by a witness that is contained in the report does not generally qualify.
FL Distinction. An affidavit containing information about testing for alcohol or drugs when the defendant is charged with driving a vehicle or operating a vessel under the influence, is admissible.
Child Victim & Elderly Person or Disabled Adult
An out-of-court statement made by a child victim with a physical, mental, or emotional age of 16 years or less or elderly/disabled adult describing the assault is admissible if:
(1) at an in camera hearing, the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) the child testifies, or if unavailable, there is corroborating evidence.
Attorney-Client Privilege Exceptions
Under Florida law, the attorney-client privilege does not protect confidential communications relevant to an issue:
- between parties who claim through the same deceased client, or
- concerning the intention or competence of a client executing an attested document if the lawyer is the attesting witness or concerning the execution or attestation of the document.
Hearsay: Learned Treatises
Under the Federal Rules of Evidence, a statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if:
- an expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination, and
- the publication is established as a reliable authority by (i) admission or testimony of the expert witness, (ii) another expert’s testimony, or (iii) judicial notice.
FL Distinction: treatises are admissible only on cross-examination to attack the credibility of an expert once the treatise or other such literature has been established as authoritative.
Florida Privileged Relationships
Florida has ten specific privileges which prevent the admissibility of certain confidential communications:
- journalist,
- lawyer-client,
- psychotherapist-patient,
- sexual assault counselor-victim,
- domestic violence advocate-victim,
- human trafficking advocate-victim
- husband-wife,
- communications made to clergy,
- accountant-client, and
- trade secrets.
Best Evidence
Under the best evidence rule, a reliable duplicate is admissible to the same extent of an original unless (1) there is a genuine question as to the authenticity of the original or (2) the circumstances make it unfair to admit the duplicate.
Habit Evidence
In Florida, evidence of a person’s habit may be admissible under the common-law exception. However, evidence of a person’s habit is not admissible as direct evidence without corroboration.