Evidence Distinctions Flashcards
FL Distinctions
When do the Federal Rules not Apply (Broad Categories)
The Federal Rules do not apply to:
i) PQ -Preliminary Ques. of fact governing admissibility
ii) GJ- Grand jury proceedings; and
iii) CRIM -Criminal proceedings for the following purposes:
a) WAR- The issuance of a search/arrest warrant or a criminal summons;
b) EXAM- A preliminary examination in a criminal case;
c) OUT- Extradition or rendition;
d) BAIL -Consideration of bail or other release;
e) SENT- Sentencing; and
f) PROB - Granting or revoking probation or supervised release.
Who decides Preliminary Questions?
The Trial Judge
The court is not bound by the Evidence Rules in deciding PQs except with respect to privileges, and it may consider otherwise inadmissible evidence. Fed. R. Evid. 104(a).
What is included in Preliminary Questions?
CAPE
Preliminary Questions usually deal with:
- Competency of evidence,
- Admissibility of evidence,
- If Privilege exists, and
- Witness qualifications (Expt)
Who bears the burden for PQ’s?
The party OFFERING the evidence ordinarily BEARS THE BURDEN to persuade the trial judge by a preponderance of the evidence.
Do Jurors hear PQ’s?
NO, Hearings on PQ’s must be conducted OUTSIDE THE PRESENCE OF THE JURY when the hearing involves the admissibility of confessions, when a defendant in a criminal case is a witness and so requests, or when justice requires it.
What is the FL Role of the Judge? (90.106)
IN FL -->
A judge MAY NOT summarize evidence or otherwise comment to the jury about the 1. WEIGHT of the Evidence
2. CREDIBILITY of witnesses, or
3. GUILT of the accused.
Fla. Stat. § 90.106.
(The Florida rule contrasts with the federal practice of judges having discretion to comment on evidence without becoming partisan.)
**Judges can only THANK JURORS –> If they do more –> MISTRIAL
Are FL Judges bound by the rules in deciding PQ’s?
The Florida rules do not provide that the court, in deciding a preliminary question, is not bound by the Rules in deciding these questions, except with respect to privileges. See Fla. Stat. § 90.105(1)
Harmless Error Rule - Challenge to Evidence Ruling
When an appellate court determines that evidence was improperly admitted in a criminal case, Florida applies the harmless error rule.
Unless the state can demonstrate beyond a reasonable doubt that there is no reasonable possibility that the error affected the jury verdict, the judgment must be reversed. State v. Lee, 531 So. 2d 133 (Fla. 1988).
In Florida, the rules cover presumptions in civil actions only.
In Florida, the rules cover presumptions in civil actions only. (Criminal cases are governed by constitutional issues.) Under Florida Law, a presumption is rebuttable unless it is conclusive under the law from which it arises. Fla. Stat. § 90.301. An example of a conclusive presumption is a statute that sets forth the age below which a person is deemed to be able to consent to sexual intercourse.
In civil cases, every rebuttable presumption is either:
i) A presumption that affects the burden of producing evidence and requires the trier of fact to assume the existence of a presumed fact unless contrary credible evidence is introduced (at which point the presumption’s “bubble bursts”); or
ii) A more powerful presumption that affects the burden of proof—it places the burden of proof on the party it operates against to show the nonexistence of the presumed fact (meaning that the presumption doesn’t go away, i.e., the bubble doesn’t burst, merely because contrary evidence is produced).
Fla. Stat. §§ 90.302–90.304. The second type of presumptions—those that affect the burden of proof—usually carry out some strong social policy and are meant to achieve more than mere facilitation of proof at trial. Examples include the presumption that: (i) a child born to married parents is a legitimate child, (ii) people are sane, (iii) a marriage is valid, or (iv) acts of public officials are carried out according to lawful duty.
The federal rules cover only the first type, so-called “bursting bubble” presumptions.
Florida Point of Law: Habit Evidence
Florida Point of Law: Habit Evidence
The Florida rule does not mention a person’s habit, but only “the routine practice of an organization,” which, like the federal rule, may be admitted without corroboration and without an eyewitness’s presence. See Fla. Stat. § 90.406. Florida courts, however, have admitted evidence of a person’s habit under the common-law exception. Evidence of a person’s habit is admissible to corroborate other evidence that shows the habit occurred at a relevant time, but, unlike the federal rule, it is not admissible as direct evidence without corroboration. Peter Nicolas, Florida and Federal Evidence Rules With Commentary (2009–10) 77 (citing sources).
Florida Point of Law: Oaths
Florida Point of Law: Oaths
The Florida Code requires that the oath be substantially in the following form: “Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth?” Fla. Stat. § 90.605(1). The court may allow a child to testify without taking an oath if the court determines that the child understands the duty to tell the truth or the duty not to lie. Fla. Stat. § 90.605(2).
Florida Point of Law: Child as Witness
Florida Point of Law: Child as Witness
The court may set appropriate conditions on the taking of a child’s testimony if the child is under the age of 18. These conditions may include the use of a registered service or therapy animal in proceedings involving sexual offenses. Fla. Stat. § 92.55. In any criminal proceeding, the court must appoint a guardian ad litem or other advocate to represent a minor in any criminal proceeding if the minor is a victim of or witness to child abuse or neglect, a victim of a sexual offense, or a witness to a sexual offense committed against another minor. Fla. Stat. § 914.17.
Florida Point of Law: Criminal Defendant
Florida Point of Law: Criminal Defendant
Florida does not give extra protection to criminal defendants who take the stand in their own defense—the regular balancing test applies.
Florida Point of Law: Manner of Proof
Florida Point of Law: Manner of Proof
In Florida, the proper procedural approach to impeach the credibility of a witness is simply to ask the witness whether the witness has ever been convicted of a felony or a crime involving dishonesty, rather than by specifically naming the crime. If the witness denies that he has been convicted of such a crime, the adverse party may enter the record of any such conviction into evidence. If the witness does not deny that he has been convicted of such a crime, the inquiry must end and may not be pursued to the point of naming the crime for which he was convicted. However, as a form of rehabilitation, the witness may of his own volition state the nature of the crime and offer any relevant explanation to eliminate adverse implications. Johnson v. State, 380 So. 2d 1024 (Fla. 1979).
Additionally, questioning a witness about the nature and underlying facts of the witness’s prior conviction for impeachment purposes generally is not allowed. Smith v. State, 7 So. 3d 473 (Fla. 2009). However, it is appropriate in the penalty phase of a capital trial to introduce testimony concerning the details of any prior felony conviction involving the use or threat of violence. See Tompkins v. State, 502 So.2d 415 (Fla. 1986). Specific underlying facts of a conviction may also be admissible as substantive evidence under the Williams rule (see II.C. Bad Acts, supra).
Florida Point of Law: Lay Witness
Florida Point of Law: Lay Witness
A lay witness may testify as to his inference or opinion if he cannot readily, accurately, and adequately communicate his perception without testifying in terms of inferences or opinions, and if doing so will not mislead the trier of fact or prejudice the objecting party. Such inferences and opinions do not require special knowledge, skill, experience, or training. Fla. Stat. § 90.701. Although this wording differs from the federal rule, the Florida rule is applied in practice in the same manner as the federal rule. Glen Weissenberger & A.J. Stephani, Florida Evidence: 2010 Courtroom Manual 407.
Florida Point of Law: Disclosure Under Compulsion
Florida Point of Law: Disclosure Under Compulsion
A statement or disclosure of privileged matter is inadmissible against the privilege holder if the statement or disclosure was erroneously compelled by the court or made without opportunity to claim the privilege. Fla. Stat. § 90.508. There is no comparable rule in the Federal Rules of Evidence, but this is the practice in federal courts.
Florida Point of Law: Child Support Enforcement Program
Florida Point of Law: Child Support Enforcement Program
Communications made to an attorney representing the Department of Revenue under the child support enforcement program by a person seeking services from the Department are confidential and privileged, and may not be disclosed to anyone other than the agency. In essence, the communications are protected as if an attorney-client relationship existed. Fla. Stat. § 90.502(5).
Florida Point of Law: Fiduciary Lawyer-Client Privilege
Florida Point of Law: Fiduciary Lawyer-Client Privilege
A communication between a lawyer and a client acting as a fiduciary is privileged. For this privilege, a client acts a fiduciary when serving as a personal representative, a trustee, an administrator ad litem, or a curator under the Probate Code; as a guardian or a guardian ad litem in domestic relations cases; as conservator under the Transfers to Minors Act; or as an attorney in fact pursuant to a power of attorney or appointment. Fla. Stat. § 90.5021.
Florida Point of Law: Physician-Patient Privilege
Florida Point of Law: Physician-Patient Privilege
Florida follows the common law and has not codified a specific evidentiary physician-patient privilege. Instead, Florida prohibits a physician from discussing a patient’s medical issues without the consent of the patient. However, this is not an evidentiary privilege, and if a court gives notice to the patient and compels a physician to provide medical records, the physician must comply with the court order. Fla. Stat. § 456.057.
Florida Point of Law: Psychotherapist-Patient Privilege
Florida Point of Law: Psychotherapist-Patient Privilege
Florida does recognize the psychotherapist-patient privilege for confidential communications related to the diagnosis of a mental or emotional condition. Fla. Stat. § 90-503.
Florida Point of Law: Communications to Clergy
Florida Point of Law: Communications to Clergy
The Florida privilege covers communications “made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.” Fla. Stat. § 90.505.
Florida Point of Law: Accountant-Client Privilege
Florida Point of Law: Accountant-Client Privilege
Florida recognizes this privilege. Fla. Stat. § 90.5055. It is analogous to the attorney-client privilege.
Florida Point of Law: Journalist’s Privilege
Florida Point of Law: Journalist’s Privilege
Florida extends protection to professional journalists. The privilege does not extend to book authors or others who are not working as a salaried employee or independent contractor for a newspaper, news journal, news agency, press association, wire service, radio or television station, or news magazine. The professional journalist has a qualified privilege, not an absolute privilege, and need not disclose information, including the identity of any source, obtained while actively gathering news. This privilege does not apply to physical evidence, eyewitness observations, or visual or audio recordings of crimes.
To overcome the privilege a party must make a clear and specific showing that:
i) The information is relevant and material to unresolved issues raised in the proceeding;
ii) The information cannot be obtained from alternate sources; and
iii) A compelling interest exists for requiring disclosure.
If a court orders disclosure, only the information shown to be relevant and material will be disclosed. The privilege is not waived by publishing or broadcasting the privileged information. Fla. Stat. § 90.5015.
Florida Point of Law: Third Party Benefits
Florida Point of Law: Third Party Benefits
Although Fla. Stat. 90.403 explicitly states that it does not make evidence of the existence of third-party benefits inadmissible, Florida case law has upheld the exclusion of liability insurance to prove liability. S. Motor Co. of Dade County v. Accountable Constr. Co., 707 So. 2d 909, 911 (Fla. Dist. Ct. App. 1998) (“It has long been the law of this state that unless the existence or amount of insurance coverage has direct relevancy to a matter at issue, it is not a proper matter for the jury’s consideration of the issues of liability and damages.”). See also Gormley v. GTE Products Corp., 587 So. 2d 455 (Fla. 1991) (payments from insurance company were inadmissible).
Florida Point of Law: Defendant’s Conduct in Cases Involving Sexual Offenses
Florida Point of Law: Defendant’s Conduct in Cases Involving Sexual Offenses
In Florida, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation may be used in the prosecution of the defendant for child molestation and evidence of the defendant’s commission of other crimes, wrongs, or acts involving a sexual offense may be used in a criminal prosecution of the defendant for a sexual offense. Child molestation means a sexual offense was committed against a victim who was 16 years of age or younger at the time of the offense. However, unlike the FRE, Florida does not allow this evidence to be used for propensity purposes. Instead, it must be admitted under the Williams rule governing evidence of similar prior acts. Fla. Stat. §90.404(2)(b), (c). In addition, unlike the federal rule, the state must give 10 days’ notice to the defendant that it will use this evidence. A court can give a limiting instruction upon request. Also, unlike the federal rule, there is no provision for the use of other act evidence of child molestation or a sexual offense in a civil case involving either. Fla. Stat. §90.404(2).
If a person under the age of 18 gives birth to a child, and the paternity of that child is established pursuant to Florida’s Domestic Relations Statutes, paternity is admissible in a criminal prosecution for some sexual offenses, including sexual battery and unlawful sexual activity with a minor. Fla. Stat. § 90.4025.
Florida Point of Law: Agents of Government
Florida Point of Law: Agents of Government
In Florida, a government agent’s statements can be offered against the government under this hearsay exception (Fla. Stat. §90.803(18)(d)). See Garland v. State, 834 So. 2d 265 (Fla. Dist. Ct. App. 2002) (in criminal case, gunshot residue report by state technician was available as opposing party’s statement); Lee v. Dep’t of Health & Rehab. Servs., 698 So. 2d 1194 (Fla. 1997) (in civil case, statements made by HRS employee who investigated incident, and other employees’ statements to investigator, admissible as opposing party’s statement).
Florida Point of Law: Co-Conspirators
Florida Point of Law: Co-Conspirators
Under FRE 801(d)(2), the court must consider the contents of a co-conspirator’s statement in determining the existence of the conspiracy, and FRE 104(a) requires this preliminary question to be established by a preponderance of the evidence for the statement to be admissible under FRE 801(d)(2)(E). Under the federal rule, the contents of the declarant’s statement do not alone suffice to establish a conspiracy. The court must instead consider the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to whether there was a conspiracy. Bourjaily v. United States, 483 U.S. 171 (1987),
Florida has declined to adopt this approach. Romani v. State, 542 So. 2d 984 (Fla. 1989). Although the standard for proving the conspiracy is still a preponderance of the evidence, unlike the federal rule, the conspiracy must be established by evidence independent of the statement in question before the statement is admissible under this exception. Id.; Brown v. State, 648 So. 2d 268, 270-71 (Fla. Dist. Ct. App. 1995) (“[T]he threshold condition of admissibility of a co-conspirator’s statement is whether evidence exists independent of the statement that the defendant and the declarant participated together in a conspiracy.”); Fla. Stat. §90.803(18)(e).
Florida Point of Law: Former Testimony
Florida Point of Law: Former Testimony
Florida applies a similar rule to former testimony when the declarant is unavailable. Fla. Stat. § 90.804(2)(a). However, Florida has an additional rule that applies regardless of whether the declarant was unavailable.
Under this additional rule, former testimony can be offered against a party in any proceeding if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination, and in a subsequent civil proceeding if the testimony was offered against a party’s predecessor-in-interest or another party with a similar interest at another hearing or deposition of the same or a different proceeding, and that party had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Fla. Stat. § 90.803(22). This rule has been held unconstitutional by the Florida Supreme Court as violation of a defendant’s Sixth Amendment Right to Confront a Witness when the declarant is not shown to be unavailable in a criminal proceeding (State v. Abreu, 837 So. 2d 400, 400 (Fla. 2003)) and by a Florida District Court of Appeal as a violation of due process when the declarant is not shown to be available in a civil proceeding. E.g. Grabau v. Dep’t of Health, 816 So. 2d 701, 709 (Fla. Dist. Ct. App. 2002); Jones v. R.J. Reynolds Tobacco Co., 830 So. 2d 854 (Fla. Dist. Ct. App. 2002).
Florida Point of Law: Previous Conviction
Florida Point of Law: Previous Conviction
The Florida Evidence Code does not have a hearsay exception that corresponds to the federal hearsay exception for a judgment of a previous conviction. However, as to the use in a civil action of a prior conviction, a judgment of conviction generally cannot be given in evidence in a civil action to establish the truth of the facts on which it is rendered, but a judgment on a plea of guilty generally may be introduced in a civil action to establish an admission against interest. Boshnack v. World Wide Rent-A-Car, Inc., 195 So. 2d 216 (Fla. 1967). With regard to minor traffic offenses, a guilty plea cannot be used in a subsequent civil action. Fla. Stat. 316.650(9).
Florida Distinction: Judicial Notice
Florida Distinction: Judicial Notice
A Florida court must take judicial notice of:
i) Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and U.S. Congress;
ii) Florida court rules that have statewide application, its own rules, and U.S. court rules adopted by the U.S. Supreme Court; and
iii) U.S. Supreme Court and Courts of Appeal rules.
Fla. Stat. § 90.201.
A Florida court may, at its discretion, take judicial notice of:
i) Special, local, and private acts of the Florida Legislature and U.S. Congress;
ii) All other states’ and U.S. territories’ decisional, constitutional, and public statutory law;
iii) Contents of the Federal Register;
iv) Foreign nations’ and organizations of nations’ laws;
v) Federal and state official legislative, executive, and judicial actions;
vi) Federal and state court rules and records;
vii) Florida municipal and county charter provisions, amendments, ordinances, and resolutions;
viii) Promulgated governmental rules that are published in the Florida Administrative Code or other bound written copies;
ix) Generally known facts within the territorial jurisdiction of the court;
x) Generally known facts or facts capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned; and
xi) Governmental agencies and departments’ official seals.
Fla. Stat. § 90.202.
The court must take judicial notice of these discretionary matters when a party so requests, provided the party gives adverse parties timely written notice of the request and furnishes the court with sufficient information to enable it to take judicial notice of the matter. Fla. Stat. § 90.203.
The court must afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed. In determining the propriety of taking judicial notice, the court may use any source of pertinent and reliable information, whether or not furnished by a party, without regard to any exclusionary rule except a valid claim of privilege and except for the Rule 403 exclusions. Fla. Stat. § 90.204(1),(2). When the court denies a request for judicial notice, the court must inform the parties at the earliest practicable time and must indicate for the record the denial of the request. Fla. Stat. § 90.205.
Jury instructions. The Florida rule regarding the court’s instruction to a jury regarding a judicially noticed matter permits, but does not require the court to instruct the jury to accept as a fact a matter judicially notice without regard to whether the case is criminal or civil,. However, Florida courts, interpreting this rule in the context of criminal cases, have held that a court cannot judicially notice a fact that constituted an element of the crime and required the court to instruct the jury with regard to a fact that gives rise to an inference of the existence of an element of a crime that the jury is free to disregard the inference. Fla. Stat. § 90.206; sCordova v. State, 675 So. 2d 632 (Fla. Dist. Ct. App. 1996) (judicially noticed fact, permissible inference only); Hernandez v. State, 713 So.2d 1120 (Fla. Dist. Ct. App. 1998 (judicial notice of element of crime not permitted).
Subsequent proceedings. The court, in subsequent proceedings, is not required to give effect to an earlier court’s refusal or failure to take judicial notice of a matter. For example, an appellate court can take judicial notice of a matter that the trial court did not, if the appellate court follows the prescribed procedures. Fla. Stat. § 90.207.
Florida Distinction: Exclusion of Witnesses
Florida Distinction: Exclusion of Witnesses
With respect to item iv), above, in Florida a witness in a criminal case may not be excluded if the witness is 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 of a party or the court, the court determines that the person’s presence would be prejudicial. Fla. Stat. § 90.616; J.R. v. State, 923 So. 2d 1269 (Fla. Dist. Ct. App. 2006). (Note: The Florida constitution gives victims of crime or their lawful representatives, including the next-of-kin of homicide victims, the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused. Fla. Const. Art. I, § 16(b).)
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Contrary to the federal rule, in Florida, proof of character cannot be in the form of opinion testimony. Only evidence in the form of reputation testimony is permitted. Fla. Stat. § 90.404.
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Contrary to the federal rule, the Florida rule does not allow the prosecution to rebut with the defendant’s character trait when the defendant offers a victim’s character trait. For example, if, in a homicide case, the defendant offers evidence of the victim’s character trait of violence to support a claim of self-defense, the prosecution may not rebut with evidence of the defendant’s character trait for violence. It may only rebut with evidence of victim’s character trait of peacefulness. See Fla. Stat. § 90.404.
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
As noted above, in Florida the prosecution may not rebut with evidence of the defendant’s character trait for violence. It may only rebut with evidence of victim’s character trait of peacefulness.
In a homicide case, the prosecution may also offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor. Fed. R. Evid. 404(a)(2)(C).
Florida Distinction: Methods of Proving Character
Florida Distinction: Methods of Proving Character
As noted above, character generally cannot be proved by opinion testimony in Florida; it can be proven only by reputation. As with the federal rule, specific acts may also be used when “character or a trait of character of a person is an essential element of a charge, claim, or defense.” Fla. Stat. § 90.405.
Florida Distinction: Other Acts Under The Williams Rule
Florida Distinction: Other Acts Under The Williams Rule
Williams Rule: In Florida, similar fact evidence of other crimes, wrongs, or acts is admissible under the Williams rule when relevant to prove a material fact in issue like identity, preparation, motive, intent, opportunity, plan, absence of mistake or accident, or knowledge (e.g., MIMIC evidence). Fla. Stat. § 90.404(2)(a); Williams v. State, 110 So. 2d 654 (Fla. 1959). A material fact is not at issue simply because it relates to an element of the charged crimes and the defendant has pled not guilty. Jackson v. State, 140 So. 3d 1067 (Fla. 1st Dist. Ct. App. 2014).
“Striking similarity” standard when other act used to establish identity. If the purpose of introducing such evidence is to prove identity, a general similarity will not render the similar act admissible. Instead, there must be “identifiable points of similarity” that establish, when also considering dissimilarities, a “sufficiently unique pattern of criminal activity.” Durousseau v. State, 55 So. 3d 543, 552 (Fla. 2010); Jones v. State, 212 So. 3d 321 (Fla. 2017). Note: By contrast, if the purpose of introducing such evidence is to prove motive, there is, of course, no requirement that the nature or facts surrounding the other crimes, wrongs, or acts be similar to the charged offense. State v. Andrews, 875 So. 2d 686 (Fla. 4th Dist. Ct. App. 2004).
Criminal sexual battery and child molestation. The Williams rule also applies in criminal cases involving sexual battery and child molestation (but not in other sex offense cases) to allow the admission of evidence of the defendant’s commission of other similar crimes, wrongs, or acts of sexual battery or child molestation. This evidence may be considered for its bearing on any matter to which it is relevant, but it is inadmissible when relevant solely to prove bad character or propensity. Fla. Stat. § 90.404(2)(b), (c). This is unlike FRE 413–415, which permit such acts to be admitted in various types of sex offense cases, criminal and civil, and which permit the evidence to be admitted to show propensity. If such evidence is admitted in Florida, the court must charge the jury on the limited purpose for which the evidence is to be considered.
Advance notice. At least 10 days before trial, the state must give a defendant notice of its intent to use evidence of other crimes, wrongs, or acts. This notice must describe the acts the state seeks to admit as evidence with particularity. The court will then hold a hearing to determine the admissibility of the acts. Unlike the federal rule, no notice is required for use of such evidence for impeachment or rebuttal of defendant’s character witnesses.
Burden of persuasion. Florida requires a judicial finding that the other acts are supported by clear and convincing evidence to be admissible. Henrion v. State, 895 So. 2d 1213 (Fla. 2nd Dist. Ct. App. 2005). For a party to meet the clear and convincing standard, the evidence must “be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th Dist. Ct. App. 1983). (Note: The federal standard is lower. See Huddleston v. United States, 485 U.S. 681 (1988) (other acts require a judicial finding under FRE 104(b) that the jury could reasonably find the conditional fact by a preponderance of the evidence).)
Rule 403 exclusion. As under the federal rules, even if the court finds that the evidence is otherwise admissible, the act may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice (see II.A.2. Exclusion of Relevant Evidence, supra).
Reverse Williams Rule: Civil as well as criminal defendants may offer evidence of other acts of a third party to at least suggest that the third party, rather than the defendant, committed the crime or tort. Often, this is accomplished by showing that the modus operandi of the third party in committing the other act is strikingly similar to the crime with which the defendant has been charged. Under the Federal Rules, this approach is known as a “reverse 404(b) defense”; Florida refers to it as the “reverse Williams rule.”
In general, the requirements for the admissibility of this evidence introduced by a defendant are the same as those for the evidence introduced by the state, with the exception of the advance notice requirement. McDuffie v. State, 970 So. 2d 312, 323–24 & n.2 (Fla. 2007) (requiring “close similarity of facts, a unique or ‘fingerprint’ type of information” for the reverse Williams rule evidence to be admissible); see also Rivera v. State, 561 So. 2d 536, 539 (Fla. 1990) (mentioning applicability of “reverse Williams” to civil defendants).
Florida Distinction: Disqualification of Witness
Florida Distinction: Disqualification of Witness
A person is disqualified to testify as a witness if the court determines the person is:
i) Incapable of expressing himself in such a way as to be understood directly or through interpretation by one who can understand him; or
ii) Incapable of understanding the duty to tell the truth.
Fla. Stat. § 90.603.
Although the Federal Rules do not make a similar statement, “the substance of the rule may be inferred from Federal Rules of Evidence 602 and 603, and is inherent in the power of the court under Federal Rule of Evidence 611(a).” Glen Weissenberger & A.J. Stephani, Florida Evidence: 2010 Courtroom Manual 314.
Florida Distinction: No Dead Man Statute
Florida Distinction: No Dead Man Statute
Florida’s “Dead Man Statute” has been repealed. When testimony formerly excluded by the statute is admitted, an exception to Florida’s hearsay rule permits the introduction of relevant communications on the same subject by the deceased or unavailable ill declarant. Fla. Stat. § 90.804(2)(e).
