Evidence Flashcards
evidence of habit
evidence of a person’s habit to prove a pattern of behavior is only admissible to corroborate other evidence that shows the habit occurred at the particular time, but not as direct evidence.
character evidence: means of proving character (general disposition)
character cannot be proved by opinion testimony
how D proves character
FL restricts the D’s witness to reputation evidence to prove the D’s character
how prosecution rebuts D’s character evidence
W may testify only to D’s bad reputation; may not give own opinion of D’s character; can’t ask “did you know,” but can ask “have you heard”
character evidence about AV in criminal case; D’s initiative
AV’s character not proven by opinion; P rebuts only by reputation evidence of AV’s good character for same trait admissible
specific acts of misconduct admissible if independently relevant: types
motive; intent; absence of mistake; identity; common plan or scheme-P must give 10 days notice of intent to use other crimes or acts evidence
specific acts of misconduct admissible if independently relevant: quantum of proof
to be admissible, similar acts must be STRIKINGLY SIMILAR and share some UNIQUE CHARACTERISTIC or combination of characteristics that set them apart
prior acts of sexual assault or child molestation
in a criminal case where D is charged w/ child mol or sex offense, evidence of D’s commission of other crimes, wrongs, or acts of child mol or sex offense is admissible and may be considered for its baring on any matter to which it is relevant
facts appropriate for judicial notice
court may find upon being furnished sufficient information, take judicial notice of: notorious facts, manifest facts, and scientific principles when a party requests and provides each adverse party timely written notice of the request
conclusiveness of judicial notice
court has discretion in both criminal and civil cases
competency of witness-dead man acts
repealed in FL in 2005
opinion testimony by lay witnesses
admissible: 1-W can’t accurately testify about what he perceived w/o opinion; 2-won’t mislead jury; 3-does not require special knowledge or training
opinion testimony by expert witness in general
must be appropriate matter for expert testimony
opinion testimony by expert witness standard
daubert standard: relevant; methodology reliable (sufficient data, reliable principal methods); expert has reliably applied principles and methods to the facts of the case; assist jury’s understanding of method; expert is qualified in field
authoritative texts and treatises
can only be used during cross exam of an expert; may not be read into record as substantive evidence; can’t be used to bolster expert’s credibility
prior inconsistent statement-laying a foundation
extrinsic evidence inadmissible unless: W 1st afforded opportunity to explain or deny and opposing party is given opportunity to question the witness on it, or the interest of justice otherwise requires. If W denies or doesn’t admit extrinsic evidence allowed. Prior statement that was written must be shown to W before W can be examined about it
type of prior crime permitted
any felony; MM involving dishonesty-only permitted to ask 1-have you been convicted of a felony or crime of dishonesty and 2-how many times. W can’t be asked about specific acts convicted of unless W lies; no specific acts w/o a conviction (including pardons); no opinion testimony; no definite time period for judging remoteness; court does not have to balance probative value of felony conviction not involving dishonesty or false statement against unfair prejudice; may not be asked about prior specific acts of misconduct not convicted; an impeached W may call other Ws to testify to his good reputation for truthfulness, but not for opinions as to his truthfulness
specificity of objections
must be specific if not apparent from context of questioning
physician privilege
not a specified privilege; does recognize psychotherapist privilege for confidential communications for purpose of diagnosis of mental or emotional condition-waived when mental condition put in issue
spousal privilege in court
recognizes “marital privilege;” no spousal immunity
professional journalist privilege
qualified privilege-does not have to identify info or identity of source obtained while gathering news (doesn’t apply to physical evidence, eyewitness observations, or audio/visual recordings of crimes). Can be overcome by: 1-relevant & material to unresolved issues; 2-can’t be obtained by alternative sources; 3-compelling state interest exists requiring disclosure
prior statement of identifcation
AV’s description of assailant to 3rd party is not an ID-not admissible as prior statement of ID by the 3rd party; but, maybe admissible under another exception
admissions by party opponent
exception to hearsay
vicarious admissions & co-conspirators
hearsay statements of a co-conspirator are inadmissible to show participation of another co-conspirator in the conspiracy. Upon request of counsel, the court must instruct the jury that the evidence against each co-conspirator must be independently proved
stock quotes as evidence
exception to hearsay
going to rehab as evidence
remedial measure and not permitted by public policy
are pardoned convictions admissible?
yes
discovery of non-W expert not expected to be called at trial can be gotten by:
1-asked info about expert in interrogatories; 2-shows exceptional circumstances
account-client privilege
recognized in FL
dying declarations
permitted in criminal and civil cases; declarant must be unavailable, but does not have to be dead; statement was made under belief of imminent death
handwriting testimony by lay person
admissible if person has sufficient familiarity w/ that person’s handwriting; may be called to prove or disprove the genuineness of the handwriting
present sense impression & excited utterance availability of W:
immaterial
police reports
can’t enter into evidence; can use to refresh recollection of officer
clergy privilege
even if person is not actually a clergy, but declarant reasonably believed him to be at time of confession
sexual abuse counselor
FL recognizes as privileged
physician-patient rule waived when:
1-med negligence action when dr is D; 2-written authorization of patient; 3-compelled by subpoena & proper notice given; 4-upon request of medical provider for the injured employee’s records relating to the workplace injury
