Evidence Flashcards
1
Q
Relevant evidence is admissible if it is _________
A
Competent - that is, it does not violate any exclusionary rule.
2
Q
What does it mean to be relevant?
A
Tends to prove or disprove a material fact.
PROBATIVE + MATERIAL
3
Q
Steps to determining whether evidence is admissible
A
- Is it relevant
- Is there a proper foundation
- Is evidence in proper form ? (best evid rule/expert/lay)
- Do any of the exclusionary rules apply?
4
Q
Is habit evidence admissible?
Fed’l v. Florida Evidence Code (“FEC”)
A
Under FRE, habit evidence is admissible.
Habit is a person’s regular response to a specific set of traits. Look for words like instinctively and automatically, always, or every time.
Under Fla law, habit evidence is only admissible to corroborate independent evidence that a person followed the habit on the occasion in question.
5
Q
When can a judge exclude relevant evidence - 403 balancing test?
(Where is FRE different)
A
When its probative value is substantially outweighed by danger of unfair prejudice, confusion, misleading jury, or cumulative evidence. CCUM
FRE only - undue delay and waste of time.
6
Q
Is evidence of organization’s routine practice relevant to show that a particular event occurred?
A
Yes, under FEC and FRE, uncorroborated evidence of an organization’s routine practice is admissible.
7
Q
Construction of FEC
A
Replaces all conflicting statutes or common law.
8
Q
Scope of FEC
A
Applies to any proceedings that the general common law of evidence applied to.
Applies to all criminal proceedings and civil actions.
9
Q
When may a court predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence
A
When a SUBSTANTIAL RIGHT is affected AND
- if admitting evidence, a timely objection or motion to strike was made stating specific ground of objection if not obvious from context OR
- If excluding evidence, there was offer of proof or substance of the evidence was apparent from context of the questions asked.
10
Q
Does a party need to renew objection or offer of proof to preserve a clam for error on appeal?
A
No, s/l/a court has made a definitive ruling on the record admitting or excluding evidence.
11
Q
Who determines preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.
A
The court. Must use admissible evidence in Florida (not FRE)
12
Q
When using parts of a writing, what may the adverse party require?
A
An adverse party may require party at that time to introduce any other part of the writing that in fairness ought to be considered contemporaneously
13
Q
What MAY the court take judicial notice of?
A
(1) Special, local, and private acts and resolutions of Congress and the Florida Legislature.
(2) Decisional, constitutional, and public statutory law of every other state
(3) Contents of the Federal Register.
(4) Laws of foreign nations
(5) Official actions of the legislative, executive, and judicial departments of the United States and of any state.
(6) Court records from anywhere in the US
(7) Rules of court from anywhere in the US
(8) Certified copies of provisions of all municipal and county charters and charter amendments of this state,
(9) Florida Administrative Code
(10) Certified copies of duly enacted ordinances and resolutions of municipalities and counties located in Florida.
(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.
(12) 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.
(13) Official seals of governmental agencies and departments of the United States and of any state
It sounds like if a party makes a timely request and provides the court with sufficient info and enough time for adversary to respond, the court MUST take judicial notice. In FRE, it is not compulsory.
14
Q
In determining whether to take judicial notice, what evidence may judge consider?
A
Any evidence without regard to any exclusionary rules except privilege.
15
Q
Special circumstances when a court can take judicial notice of court records from other states
A
In a family matter, when there is imminent danger, and it is impractical to give notice, court can take judicial notice and defer opportunity to present evidence until later.
16
Q
Must a denial of a request for judicial notice be stated on the record?
A
Yes, at the earliest practicable time.
17
Q
What are two types of rebuttable presumptions
A
- One that effects the burden of producing evidence and requiring jury to assume the existence of a fact, unless credible evidence otherwise is introduced - presumption vanishes when evidence is introduced to contrary. “Bursting bubble” E.g., presumption of negligence in rear end
- One that effects the burden of proof - imposed upon the party against whom the presumption operates. Does not vanish if credible evidence otherwise is introduced. Instead, jury decides whether party met its burden of persuasion that the presumption does not apply.
18
Q
How do you know if a presumption is a Bursting Bubble Presumption?
A
Default rule is that it is bursting bubble presumption unless the presumption is one that implements public policy.
19
Q
Examples of public policy presumptions
A
- protection of police and firefighters;
- the validity of marriage;
- sanity in civil cases;
- parentage and paternity;
- exercise of undue influence;
- acts of public officials;
- correctness of judgments;
- intention of parties to a written agreement;
- against suicide;
- validity of a written medical consent; and
- competence to consent to medical treatment.
In this way, we can see that public policy presumptions are those that implicate human life, safety, and dignity.
20
Q
Is evidence of paternity admissible in criminal prosecution
A
Yes - to show sexual battery of mom under 18.
21
Q
FEC rule regarding statements expressing sympathy
A
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 their family shall be INADMISSIBLE as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible pursuant to this section.
22
Q
Can character be proved by opinion testimony in Florida?
A
No
23
Q
Is propensity character evidence admissible in a civil case? Fed’l vs. FEC
A
No, unless
(1) character is an essential element of a claim or defense (e.g. defamation-harm to reputation),
(2) case involves a claim for relief based on defendant’s sexual assault or molestation (Fed’l -civil or criminal, under FEC - only criminal)
24
Q
Is NON-propensity character evidence admissible in a civil case? Fed’l vs. FEC
A
Generally, yes. Rule 404 is not the issue, it’s a regular analysis - relevance, balancing, etc. MIMIC ok
25
Under FEC when is the only time specific instances of misconduct can be used?
- When character of a person is an essential element of a charge, claim, or defense
- NOT allowed to ask about specific instances of misconduct to impeach a witness
26
Is propensity character evidence admissible in a criminal case against accused? Fed'l vs. FEC
Only if D opens door
Fed'l -by reputation or opinion
FEC - by reputation only
Prosecution can rebut
Fed'l -by reputation or opinion, cross-x of specific instances (but can't use evidence to prove against W)
FEC - by reputation only
ALSO
if case involves a claim for relief based on defendant's sexual assault or molestation (Fed'l civil or criminal, under FEC - only criminal)
27
What is the Florida Rape Shield Statute?
-Applies to sexual battery and human trafficking cases
-Prohibits reputation evidence about victim
-Limits admissibility of specific evidence of prior consensual activity between victim and others except if it (i) tends to prove that D was not source of semen or pregnancy or (ii) there is a similar pattern of conduct that tends to establish consent
(Federal the same)
28
Is propensity character evidence admissible in a criminal case against VICTIM? Fed'l vs. FEC
Only if D opens door (except for rape-not allowed - Florida rape shield statute )
Fed'l -by reputation or opinion or self defense (homicide) case
FEC - by reputation only
Prosecution can rebut
Fed'l -by reputation or opinion
FEC - by reputation only
Under Fed'l only - if D opens door to victim's character, he puts his own character (on the same trait) in issue.
29
Is NON-propensity character evidence admissible in a criminal case against accused? Fed'l vs. FEC
-applies to civil too
```
MIMIC - same Fed'l and FEC
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme
** Not limited to this - these are the most common.
Under FEC, similar acts must be "strikingly similar" and share some unique characteristic. E.g., wet bandits- filling house with water after burglary.
```
30
Requirements for Admissibility of MIMIC evidence
(i) there must be sufficient evidence of prior conduct (can't guess) and (ii) 403 balancing -probative value must not be substantially outweighed by danger of unfair prejudice
31
Notice that Prosecution has to give of use of MIMIC evidence in criminal case
The prosecution must give 10 days notice of intent to use other acts as non-propensity character evidence.
32
Does taking the stand put D's character in issue?
No. It only puts his credibility in issue - so prosecution limited to impeachment evidence.
33
Can you use evidence of subsequent remedial measures?
Not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event.
Admissible to prove ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.
34
Can you use evidence of Offer to plead guilty; nolo contendere; withdrawn pleas of guilty
No. Inadmissible, as are statements accompanying plea.
35
Can you use evidence of compromise or offers to compromise?
FEC - Inadmissible to prove liability or absence of liability or amount of claim
FRE- inadmissible to prove disputed claim, amount, or for impeachment
36
No person in a legal proceeding has the privilege to:
Except as otherwise provided
(1) Refuse to be a witness.
(2) Refuse to disclose any matter.
(3) Refuse to produce any object or writing.
(4) Prevent another from being a witness, from disclosing any matter, or from producing any object or writing.
37
A party seeking to overcome journalist's privilege must make a clear and specific showing that
1. information is relevant and material
2. cannot be obtained from alternate sources; and
3. compelling interest exists for requiring disclosure.
38
Does a professional journalist waive the privilege by publishing or broadcasting the information?
No.
39
Circumstances when there is no lawyer-client privilege
1. services of lawyer were sought to enable a crime or fraud.
2. Breach of duty in lawyer client relationship
3. Competence of client in attesting to a document
4. matter of common interest between two or more clients
5. Certain communications between attorney and public entity are not privileged after litigation
6. Statements between attorney and public official at public meeting
7. When communication is relevant to an issue between parties who claim through the same deceased client.
40
Fiduciary lawyer client privilege
Communication between lawyer and a client acting as a fiduciary is privileged to same extent as if client were not acting as a fiduciary
41
Psychotherapist-patient privilege
A patient has a privilege to refuse to disclose confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.
42
Who can claim the psychotherapist-patient privilege
(a) The patient or the patient’s attorney on the patient’s behalf.
(b) A guardian or conservator of the patient.
(c) The personal representative of a deceased patient.
(d) The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.
43
When there is NO psychotherapist-patient privilege
1. proceedings to compel hospitalization for mental illness
2. communications made during court ordered examination
3. Where mental or emotional condition is element of claim or defense.
44
Sexual assault counselor-victim privilege
A victim has a privilege to refuse to disclose a confidential communication made to a sexual assault counselor or trained volunteer or any record made in the course of advising, counseling, or assisting the victim. Such confidential communication or record may be disclosed only with the prior written consent of the victim. INCLUDES ADVICE GIVEN.
45
Who can claim sexual assault counselor-victim privilege
(a) The victim or the victim’s attorney on his or her behalf.
(b) A guardian or conservator of the victim.
(c) The personal representative of a deceased victim.
(d) The sexual assault counselor or trained volunteer, but only on behalf of the victim. The authority of a sexual assault counselor or trained volunteer to claim the privilege is presumed in the absence of evidence to the contrary.
46
Domestic violence advocate-victim privilege
A victim has a privilege to refuse to disclose a confidential communication made by the victim to a domestic violence advocate or any record made in the course of advising, counseling, or assisting the victim. The privilege applies to confidential communications made between the victim and the domestic violence advocate and to records of those communications only if the advocate is registered at the time the communication is made. INCLUDES ADVICE GIVEN.
47
Husband-wife privilege
- protects disclosure of information communicated during the marriage. May be claimed by either spouse or guardian of spouse
- Florida does not recognize the doctrine of spousal immunity (where one spouse cannot be compelled to testify against other)
48
When does the husband-wife privilege not apply?
- proceeding between spouses
- one spouse charged with a crime against the other or a child
- during a criminal proceeding when one spouse offers the communication into evidence.
49
Clergy Privilege
Communication is confidential if made privately for the purpose of seeking spiritual counsel from the member of the clergy in the usual course of his discipline and not intended for further disclosure.
Same people may claim privilege as other privileges.
50
When is there NO Accountant-client privilege
1. services of accountant were sought to enable a crime or fraud.
2. Breach of duty in accountant client relationship
3. joint representation
51
General - how can a person waive a privilege
Voluntarily discloses or consents to disclosure
| No waiver if person is compelled to disclose w/o opportunity to claim the privilege
52
What happens if person claims privilege and adverse party needs that communication?
Court may, upon motion, dismiss claim or defense to which the privilege relates
53
What is the general rule of competency?
Every person is competent to be a witness, except as otherwise provided by statute.
54
Does child need to take oath to testify truthfully?
Not if court determines that the child understands the duty to tell the truth
55
Can a lay witness testify if he does not have personal knowledge?
No
56
When character evidence can be used for IMPEACHMENT
| Fed'l vs. FEC
1. must relate to truthfulness
2. Can't use evidence of truthful character unless truthfulness has been attacked, but then can be used to rebut
* Only as a shield, not as a sword
FEC - Reputation evidence ONLY
FRE - opinion or reputation
57
Methods to impeach credibility of witness (your own or someone else's)
1. Introduce prior inconsistent statements - but if not made under penalty of perjury then it can only be used for impeachment and not as substantive evidence.
2. Show bias-must lay foundation to introduce extrinsic evidence
3. Attack character of witness on truthfulness or conviction of certain crimes
4. Show defect in capacity, ability, or opportunity to observe
5. Proof by other witnesses that facts aren't what witness says they are.
58
Can criminal convictions for crimes involving dishonesty or false statement be used to impeach witness? FRE v. FEC
FRE
Yes- Crimes involving dishonesty or false statement in last 10 years MUST be admitted.
FEC
Yes, except if remote in time or juvenile adjudication. But court HAS DISCRETION, subject to balancing test.
59
Can criminal convictions for death or incarceration for more than one year be used to impeach witness? FRE v. FEC
FRE
Yes if it happened within the last 10 years- but if it does not involve a crime of dishonesty, court has DISCRETION subject to 403 balancing test (except criminal D)
FEC
Yes, except if remote in time or juvenile adjudication. But court HAS DISCRETION, subject to balancing test even if criminal D.
60
For impeachment based upon prior crimes, must there be an actual conviction? FRE vs. FEC
FRE - must be actual conviction
| FEC- YES cannot be impeached if trial court withheld judgment of conviction (e.g. to put D on probation)
61
Effect of pardon on use of criminal convictions for impeachment
FRE vs. FEC
FRE - Prior conviction may not be introduced if there was a pardon based on innocence or if person was not convicted of subsequent felony
FEC-evidence is admissible even if pardoned, although pardon is admissible for rehabilitation.
62
Can you use religious beliefs to show credibility or lack of credibility?
No
63
Foundation Needed for Impeachment Using Prior Inconsistent Statement - FRE vs FEC
FEC - W must be given chance to explain, and opposing party a chance to examine the witness BEFORE the introduction of the statement into evidence. Only admissible if W denies making statement. No foundation req't if hearsay exception applies
FRE - Statement can be admitted before W has a chance to explain, and foundation req't can be waived if justice so requires. (i.e. W has left stand and cannot be recalled, and then statement is found)
64
What if W uses a writing to refresh his memory while testifying?
Adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or to introduce those portions which relate to the testimony of the witness, in evidence.
If party fails to produce writing, court may strike the testimony related to it.
65
What witnesses MAY NOT be excluded from courtroom
1. Party
2. In civil case, representative of corporate party
3. A person who attorney proves is essential to the presentation of the case.
4. In criminal case, the victim, parent of victim, next of kin or other lawful representative.
66
May a witness be interrogated about specific instances of misconduct bearing on truthfulness in order to impeach them?
FRE -yes, but extrinsic evidence is not allowed
| FEC - no
67
When may a lay witness offer opinion testimony
FEC more stringent than FRE. Only if:
1. W cannot readily with accuracy and adequacy communicate what he has perceived without testifying in the form of opinions;
2. testimony will not mislead the trier of fact; and
3. the opinions do not require specialized training or knowledge.
* can testify as lay person on issue of sanity/insanity if they know person
68
Dean Man Act-FEC
Repealed in 2005 in Florida.
Dead Man Acts generally provide that a party cannot testify to transaction with dead man when the testimony is offered against the estate or successors of the deceased.
69
Testimony Based on Independent Recollection and Confirmed By Hypnosis - when permitted
Testimony is admissible when
1. W provides a description of a suspect at the time of the crime
2. information elicited from a subsequent hypnotic session is consistent with previous description
3. W testifies in court based on independent recollection of event. Hypnosis goes to weight, not admissibility of testimony.
70
Expert testimony - FRE and FEC- when may an expert testify to an opinion or ultimate conclusion?
1. Expert is qualified by possessing sufficient knowledge, skill, experience, training or education.
2. The expert's special knowledge will help the trier of fact.
3. The testimony is based on sufficient facts or data.
4. The testimony is the product of reliable principles and methods; and
5. The expert reliably applied the principles and methods to the facts of the case.
71
Hypnotically-Refreshed Testimony-when permitted
1. Inadmissible per se in a criminal trial.
2. W cannot testify to new matter discovered through hypnosis
3. Hypnosis does not render W incompetent to testify to a fact recalled prior to hypnosis if fact was properly recorded.
4. It might be admissible if it is the criminal defendant giving the testimony and the prosecution was given notice of the recorded session to ensure compliance with proper procedures and practices.
72
Can a W testify in the form of an inference or opinion if it includes an ultimate issue to be decided by the jury
Yes, if the testimony is otherwise admissible.
73
Use of authoritative texts by expert - FRE vs . FEC
FRE
-expert may be cross-examined concerning statements in scientific publication
-Statements from text may be read into the record on direct or cross, s/l/a the expert is on the stand (but text cannot come in as exhibit)
-used to impeach expert once the treatise is established as auhtoritative
FEC
-can only be used during cross-examination of an expert
-cannot be read into record (no hearsay exception for learned treatises)
-cannot be used to bolster credibility of expert.
74
Physician-patient privilege
FEC does not recognize a separate Physician-patient privilege. There are rules that records cannot be shared w/o written authorization.
75
Accident report privilege
- Privilege for written reports made by persons involved in MVA. - Made for Dep't of Highway Safety and are inadmissible in civil or criminal trials resulting from accident. Includes statements made to P.O. for the purpose of making report, EXCEPT
- in criminal case, police office may testify to any statement made to him by a person involved in the accident.
- Results of blood alcohol, urine or other tests for controlled substances ARE admissible in both civil and criminal proceedings.
76
May an expert testify in terms of opinion or inferences and give reasons without prior disclosure of the underlying facts or data
Yes, but on cross-x, the expert shall be required to specify the facts or data
77
Prior to giving opinion, what may an adverse party do to test the sufficiency of the basis of the opinion
He may voir dire the expert to examine the factual basis for the opinion, and if expert doesn't have a sufficient basis, the opinion is inadmissible
78
What statements ARE NOT HEARSAY
1. Prior inconsistent statements given under OATH subject to penalty of perjury, if declarant testifies and is subject to cross-x
2. Prior statement is consistent with testimony but is offered to rebut charge against declarant of specific motive to lie or recent fabrication, if declarant testifies and is subject to cross-x. CAN'T USE TO BOLSTER.
3. Statement of identification made after perceiving a person.
Remember these only apply to statements of testifying witnesses. Don't be fooled by an out-of-court statement of identification by a non-testifying declarant
Can be admitted as substantive evidence.
79
What is a statement for hearsay purposes
Oral or written statement, or conduct intended to be a substitute for words (nod of the head)
80
What are some examples of statements that are not offered for their truth?
- words of contract or defamation
- statements offered to show effect on listener or reader
- statements offered to show what declarant believed to be true (e.g., evidence of insanity, knowledge).
81
How do FRE and FEC treat Admissions by Party Opponent
FRE - as non hearsay (opposing party statement)
| FEC - as exception to hearsay rule
82
What to ask yourself in deciding whether a statement is hearsay
Does it matter whether the declarant is telling the truth? If not, the evidence is not hearsay.
83
Hearsay Exceptions where Unavailability of Declarant does not matter - common
1. Spontaneous Statement
2. Excited Utterance
3. Then-existing mental, emotional or physical condition
4. Statements for Purposes of Medical Diagnosis or Treatment
5. Recorded Recollection
6. Records of Regularly Conducted Business Activity
7. Absence of Entry in records of regularly conducted business activity
8. Public records and reports
9. Records of vital statistics
10. Absence of Public Record or Entry
11. Admission by party-opponent
84
Hearsay exception - SPONTANEOUS STATEMENT
| FRE - present sense impression
A spontaneous out of court statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
E.g. W calling 911
85
Hearsay exception - EXCITED UTTERANCE
A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement (not after)
Tip - sometimes a failed dying declaration will succeed as an excited utterance
E.g. react to gunshot and yelling as they run.
86
Hearsay exception - THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION
(FRE - "State of Mind")
An out of court statement of declarant's then-existing state of mind, including statement of intent, plan, motive, design, mental feeling, pain, or bodily health is admissible when offered to:
1. prove then existing state of mind at the time (or after), or
2. prove or explain acts of subsequent conduct
N/a to statement of memory or belief, which cannot be used to prove the truth of the fact remembered or believed.
Eg. Someone on ground in a lot of pain, and describing pain as they feel it. If they describe it a week later, will not trigger exception
87
Hearsay exception - Statements for Purposes of Medical Diagnosis or Treatment
Statements made for medical diagnosis or treatment, whether about past or present medical history, pain symptoms, etc.
-does not need to be made to medical professional
88
Hearsay exception -Recorded Recollection
| FRE - Past recollection recorded
witness testifying but having trouble remembering, you can read into evidence a prior statement that they made from their own personal knowledge. Only opposing party can introduce statement as an exhibit.
-different from present recollection refreshed, where you are not using document as evidence.
A record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
89
Hearsay exception - Records of Regularly Conducted Business Activity
Records kept in the ordinary course of business, as shown by testimony of the custodian or qualified witness (or by declaration with advance notice). Party opposing evidence must move before trial to exclude, or it waives objection unless good cause is shown
E.g. secretary keeping call log as calls come in.
Be careful with police reports that contain statements from bystanders - the report itself is admissible, but need separate basis for bystander statements (b/c they are not under business duty to report)
90
Hearsay exception - ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY
Evidence that a matter is not included in the records, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a record was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness.
91
Hearsay exception - PUBLIC RECORDS AND REPORTS
Public records and reports of public agencies where there was a duty to report, setting forth:
1. activities of agency or
2. matters observed pursuant to law (n/a to police observation in criminal case)
unless source of information is not trustworthy
-Factual findings resulting from legally authorized investigations are NOT ADMISSIBLE
Police reports that do not qaulify as business records, may fall under this exception
92
Hearsay exception - RECORDS OF VITAL STATISTICS
Birth, death, marriage records, except you cannot use marriage records of marriage to another party for any purpose but impeachment
93
Hearsay exception - FAMILY RECORDS
Statements of fact concerning personal or family history in family Bibles, charts, engravings in rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
94
Hearsay exception -Statements By Child Victim of Abuse or Neglect
- Applies to statements of a victim with the physical or developmental age of 16 or less.
- Such statements may be admitted if:
1. the time, content and circumstances provide sufficient safeguards of reliability (after hearing w/o jury); and
2. Child either testifies or is unavailable to testify. If unavailable, there must be trustworthy corroborative evidence. Ct can fund child is unavailable if there is a likelihood of severe emotional harm to child to testify.
* *In criminal cases, this exception as been held to violate defendant's right to confront W's.
95
Hearsay exception -Statements By Child Victim of Abuse or Neglect
- Applies to statements of a victim with the physical or developmental age of 16 or less.
- Such statements may be admitted if:
1. the time, content and circumstances provide sufficient safeguards of reliability (after hearing w/o jury); and
2. Child either testifies or is unavailable to testify. If unavailable, there must be trustworthy corroborative evidence. Ct can fund child is unavailable if there is a likelihood of severe emotional harm to child to testify.
* *In criminal cases, this exception as been held to violate defendant's right to confront W's.
96
Hearsay Exceptions where Unavailability of Declarant does not matter - other
Records of religious organizations
12. Marriage, baptismal and similar certificates
13. Family records
14. Records and statements in documents affecting an interest in property.
15. Statements in ancient documents
16. Market reports and commercial publications
17. Admissions
18. Reputation concerning personal and family history
19. Reputation concerning boundaries or general history
20. Reputation as to character
21.
22. Statement of child victim
23. Statement of elderly person or disabled adult
97
Does Florida recognize a hearsay exception for prior criminal convictions?
No - they are NOT admissible as substantive evidence
98
Hearsay exception - FORMER TESTIMONY - Does declarant need to be unavailable?
Yes
99
Hearsay exception - ADMISSION
Must be
- party's own statement, or statement of representative (e.g. employee in scope of duties - only if still employed when statement is made!!!)
- statement that party adopted
- statement by person specifically authorized by party to make statement
- statement by co-conspirator, however, upon request of counsel court must instruct jury that each person's participation in conspiracy must be established by independent evidence before a conspirator's statement can qualify as a vicarious admission of party
- confessions
- guilty plea is admission
100
Are statements of co-parties available to be used as an admission of a party?
No.
101
Hearsay exception - FORMER TESTIMONY
Admissible if:
1. Former testimony was given under oath at a trial, hearing or deposition in same case or different case, and
2. Adverse party (including grantor-grantee, other privity relationships) had the opportunity and similar motive to develop the declarant's testimony
*Generally must involve same subject matter
Grand jury testimony - n/a but may be used as a prior inconsistent statement, both as impeachment and substantive evidence.
102
Hearsay exception - STATEMENT OF ELDERLY PERSON OR DISABLED ADULT
- out of court statement of abuse or neglect admissible if:
1. time, content, and circumstances of the statement provide sufficient safeguards of reliability (in hearing w/o jury) AND
2. The elderly person or disabled adult is unavailable as a witness, provided that there is corroborative evidence of the abuse or offense. Ct can find elderly person is unavailable if there is a likelihood of severe emotional harm to person to testify.
* *In criminal cases, this exception as been held to violate defendant's right to confront W's.
103
Does Florida have a catch-all exception for hearsay statements not covered by specific exceptions?
No.
104
Hearsay Exceptions - Unavailability Required
Statement Under Belief of Impending Death
Admissible if declarant is unavailable and:
1. He reasonably believed death was imminent and
2. Statement concerned the cause or instrumentalities of what he believed to be his impending death.
FEC - available in ALL cases
105
Hearsay Exceptions - Unavailability Required
1. Statement Under Belief of Impending Death
2. Statement Against Interest
3. Statement of Personal or Family History
4. Statement by Deceased or Ill Declarant Similar to One Previously Admitted
5. Statement Offered Against Party Who Wrongfully Caused Unavailability.
6. Former testimony
106
When is a Declarant "Unavailable"
(a) Is exempted from testifying on ground of privilege
(b) Refuses to testify despite court order;
(c) Testifies that he does not remember;
(d) Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or
(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.
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When can you use a Dying Declaration in Federal Cases?
Homicide prosecution or any civil action
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Hearsay Exceptions - Unavailability Required
Statement against interest
Admissible if declarant is unavailable and:
1. if statement was against declarant’s pecuniary or proprietary interest when made or tended to subject the declarant to liability or to render invalid a claim by the declarant against another (so that person would not have made statement unless she believed it to be true)
In criminal cases, FRE and FEC require corroborating circumstances indicating trustworthiness of statements against penal interest
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What is the difference between admission by party opponent and statement against interest
Admission:
- need not be against interest when made
- declarant need not have personal knowledge of facts
- declarant need not be unavailable
- declarant must be a party (or party rep)
Statement Against Interest
- must have been against interest when made
- declarant must have personal knowledge
- declarant must be unavailable
- declarant need not be a party
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Hearsay Exceptions - Unavailability Required
Statement of personal or family history
Statements by now-unavailable declarant concerning births, marriages, divorces, relationship, geneaology are admissible provided that:
1. declarant was a member of the family in question or intimately associated with it
2. statements based on declarant's personal knowledge
111
Hearsay Exceptions - Unavailability Required
Statement offered against a party that wrongfully caused the declarant’s unavailability.
—A statement of a person (now unavailable as a W) is admissible when offered against a party that intentionally and wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability
112
Hearsay Exceptions - Unavailability Required
Statement by deceased or ill declarant similar to one previously admitted
No corresponding FRE rule
1. In an action against the state or trust of deceased or mentally incomp. person
2. when declarant is unavailable by death or incompetence
3. an oral or written statement by declarant is admissible if it involves the same subject matter of a previously admitted statement by same declarant
113
Can You Attack or Support Credibility of Declarant Who Does Not Testify?
When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant’s hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it.
If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
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What is Authentication?
Object or evidence must be identified as what the proponent claims it to be, by either:
1. testimony of W that she recognizes it or
2. Chain of custody
Condition - if condition of object is significant, it must be shown to be in substantially the same condition at trial
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What is Self-Authentication
No extrinsic evidence req'd for: (they prove themselves)
1. domestic public documents bearing a seal and signature attesting to authenticity of seal
2. Domestic public documents without seal but with signature
3. Official foreign document with attestation and certification of genuineness
4. Certified copy of public record
5. official gov't publications
6. Newspapers or periodicals
7. UCC commercial paper
8. certified documents
Testimony of subscribing witness not necessary
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Can you become familiar with handwriting for the purpose of providing non-expert testimony ?
No, non expert must have personal knowledge
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Authenticating Photo of Property Wrongfully Taken
In crime involving wrongful taking of property, a photo of property, with description of property, owner, location, name of investigating officer, date it was taken and name of photographer can be used as evidence, and property can be returned to owner.
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Best Evidence Rule (should be the original document rule)
An original (or duplicate) writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph unless FEC provides otherwise
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When is a Duplicate Admissible
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
-or if a negotiable instrument or security agreement or other evidence of a payment of money
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When is An Original Not Required
An original is NOT required and other evidence of the content of a writing, recording, or photograph is admissible if:
- all the originals are lost or destroyed, and not by the proponent acting in bad faith;
- an original cannot be obtained by any available judicial process;
- the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; OR
- the writing, recording, or photograph is not closely related to a controlling issue.
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Public Records Exception to Best Evidence Rule
The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met:
-the record or document is otherwise admissible; and --the copy is authenticated pursuant to 9.902
If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
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Common situations where Best Evidence Rule Applies
1. The event to be proved is a written transaction (contract, wills, deeds)
2. A party CHOOSES to introduce a writing, recording or photograph to prove a fact. (E.g. written confession)
3. A W's knowledge is derived solely from reading a document or viewing a videotape - need document or recording.
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What does Finder of Fact Decide?
Whether
- an asserted writing, recording, or photograph ever existed;
- another one produced at the trial or hearing is the original; OR
- other evidence of content accurately reflects the content.
124
Summaries Exception to Best Evidence Rule
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court by calling a qualified witness. The proponent must provide notice and make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.
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Opponent Admission Exception to Best Evidence Rule
A party may prove the contents of writings, recordings, or photographs by the testimony or deposition of the party against whom they are offered or by that party’s written admission, without accounting for the nonproduction of the original.
