Evidence (Grossman)

Question 1

Character Evidence

Answer 1

Generally INADMISSIBLE to prove conformity, unless:

1) Character of Accused: The accused may offer evidence of a pertinent character trait and the prosecution may rebut with character evidence of its own.

2) Character of Victim: The accused may offer evidence of a pertinent character trait of the victim, which opens the door for the prosecution to rebut, OR, in a homicide case, the prosecution may offer evidence of a character trait of peacefulness of the victim offered to rebut evidence that the victim was the aggressor.

Question 2

MIMIC

Answer 2

These are exceptions to the use of character evidence (i.e., used to prove something other than conformity):

M - Motive

I - Intent

M - Mistake (lack thereof)

I - Identity

C - Common plan or scheme

Question 3

Methods of Proving Character Evidence

Answer 3

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. (i.e., did you know J’s reputation for peacefulness in the community?)

-NOTE: OPINION EVIDENCE NEVER ALLOWED TO PROVE CHARACTER IN FLORIDA.

Question 4

Character Evidence (other crimes, wrongs, acts)

Answer 4

Similar fact evidence of other crimes, wrong or acts is admissible when relevant to prove a material fact in issue, including but not limited to (THINK: MIMIC+):

1) Proof of Motive

2) Opportunity

3) Intent

4) Preparation

5) Plan

6) Knowledge

7) Identity

8) Absence of Mistake or Accident

BUT it’s inadmissible when the evidence is relevant solely to prove bad character or propensity.

Question 5

Impeachment: Who May Impeach

Answer 5

Any party, including the party calling the witness, may attack the credibility of a witness by:

1) Introducing statements of the witness which are inconsistent with the witness’ present testimony;

2) Showing the witness is biased;

3) Attacking the character of the witness;

4) Showing a defect of capacity, ability or opportunity in the witness to observe, remember or recount the matter about which he testified.

Question 6

Character of a Witness for Impeachment
(i.e., not the defendant or the victim)

Answer 6

1) The evidence may refer only to character relating to truthfulness; and

2) Evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence.

Question 7

Conviction of Certain Crimes for Impeachment

Answer 7

Florida allows:

1) Felony convictions (crimes punishable in excess of 1 year) to come in to impeach a witness; and

-Crimes involving dishonesty or false statements (even if the punishment was for less than 1 year)

Question 8

Exceptions to the Use of Certain Crimes for Impeachment

Answer 8

Generally, felony convictions and crimes involving dishonesty may be used to impeach, HOWEVER:

1) This evidence is inadmissible in a CIVIL TRIAL if it’s so remote in time as to have no bearing on the present character of the witness.

2) Evidence of juvenile adjudications are inadmissible.

Question 9

Refreshing the Memory of a Witness

Answer 9

When a witness uses a writing or other item to refresh her memory while testifying, an adverse party is entitled to have the writing/item produced at the hearing to:

1) Inspect it;

2) Cross-examine the witness thereon;

3) To introduce it into evidence; and/or

4) In the case of a writing, to introduce those portions which relate to the testimony of the witness into evidence.

Question 10

Opinion Testimony of Lay Witnesses

Answer 10

If a witness is not testifying as an expert, the witness’ testimony about what he/she perceived may be in the form of an inference or opinion when:

1) It won’t mislead the trier of fact;

2) The opinion/inference does not require any special knowledge, skill, experience or training; and

3) The witness had a chance to observe.

Question 11

Testimony by Experts

Answer 11

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 an opinion.

Question 12

Opinion of Ultimate Issues

Answer 12

In Florida, testimony in the form of an opinion or inference which is otherwise admissible is not objectionable b/c it includes an ultimate issue to be decided by the trier of fact.

Question 13

Basis of Opinion Testimony by Experts

Answer 13

The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to, the expert AT OR BEFORE the trial.

-If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible into evidence.

Question 14

Disclosure of Facts or Data Underlying Expert Opinion

Answer 14

Unless required by the court, an expert may testify in terms of an opinion or inference and give good reasons without prior disclosure of the underlying facts or data.

-Prior to the expert witness giving the opinion, a party against whom the opinion or inference is offered may conduct a voir dire examination of the witness directed at the underlying facts/data for his opinion.

-If the party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, then it shall be inadmissible.

Question 15

Authoritativeness of Literature for Use in Cross-Examination

Answer 15

Authoritative texts/treatises may be used to impeach an expert on cross-examination, HOWEVER, they do NOT come in as substantive evidence.

-Can only be used if the expert being cross-examined recognizes the author or the text to be authoritative or if the trial court finds the author or the treatise/text to be authoritative and relevant to the subject matter.

Question 16

Hearsay: Definition

Answer 16

A statement made by a declarant, other than one made while testifying at the trial or a hearing, offered into evidence to prove the truth of the matter asserted.

-A “statement” is (1) an oral or written assertion; or (2) non-verbal conduct of a person if it’s intended by the person as an assertion.

Question 17

Spontaneous Statement

Answer 17

A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

-Exception: Inadmissible if the statement is made under circumstances that indicate a lack of trustworthiness.

-THINK: Sportscaster exception; 911 phone calls

-Doesn’t matter if the declarant is available or not to testify.

Question 18

Excited Utterance Exception

Answer 18

A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

-Doesn’t matter if the declarant is available or not to testify.

Question 19

Then-Existing Mental, Emotional or Physical Condition

Answer 19

A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan motive, design, mental feeling, pain or bodily health, is admissible when such evidence is offered to:

1) Prove the declarant’s state of mind, emotion, or physical sensation at the time or at any other time when such state is an issue in the action.

2) Prove or explain acts of subsequent conduct of the declarant.

-Doesn’t matter if the declarant is available or not to testify.

Question 20

Statements for Purposes of Medical Diagnosis or Treatment

Answer 20

Statements made for purposes of medical diagnosis or treatment by a person SEEKING the diagnosis or treatment;

or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts;

which statements describe medical history, past or present symptoms, pain or sensations, or the inceptions or general character of the cause or external source thereof;

are ADMISSIBLE in so far as REASONABLY PERTINENT to diagnosis or treatment.

-NOTE: Declarant can’t lay blame or accuse someone while giving statement to the Doctor

-Doesn’t matter if the declarant is available or not to testify.

Question 21

Recorded Recollection

Answer 21

A memorandum or 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.

-NOTE: A party may read into evidence a memorandum or record when it’s admitted, but no such memorandum or record is admissible as an exhibit UNLESS offered by an adverse party.

Question 22

Family Records

Answer 22

Statements of fact concerning personal or family history in family bibles, charts, engravings in rings, inscriptions on family portraits, engravings in urns,crypts or tombstones or the like.

Question 23

Admissions

Answer 23

A statement that is offered against a party and is the party’s own statement in either an individual or representative capacity.

-Note: This is an EXCEPTION to hearsay (it’s NOT “non-hearsay”)

-Doesn’t matter if the declarant is available to testify or not.

Question 24

Reputation as to Character

Answer 24

Evidence of the reputation of a person’s character among associates or in the community is admissible as an exception to hearsay.

-Doesn’t matter if the declarant is available to testify or not.

Question 25

Former Testimony Exception

Answer 25

Former testimony given by the declarant which such testimony was given when

the declarant was a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding;

shall be ADMISSIBLE IF:

the party against whom the testimony is now offered, or in a civil proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.

-Doesn’t matter if the declarant is available to testify or not.

Question 26

Hearsay Exceptions: Availability of Declarant Immaterial

Answer 26

The following statements may be ADMISSIBLE, without bringing in the declarant to testify, even though the declarant is available to testify as a witness:

1) Spontaneous Statement

2) Excited Utterance

3) Then-Existing Mental, Emotional, Physical Condition

4) Statements for Purposes of Medical Diagnosis or Treatment

5) Recorded Recollection

6) Family Records

7) Admissions

8) Reputation as to Character

9) Former Testimony

Question 27

Definition of “unavailability of a witness”

Answer 27

A declarant is “unavailable” if:

1) Exempted by a ruling of a court on the ground of privilege;

2) Persisting to refuse to testify on the subject matter despite a court order;

3) Suffering from a lack of memory on the subject matter of his statement so as to destroy the declarant’s effectiveness as a witness during the trial;

4) Unable to present or to testify b/c of death or b/c of a then-existing physical or mental illness or infirmity; or

5) Absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

Question 28

Hearsay Exceptions; Declarant Unavailable

Answer 28

The following are admissible provided that the declarant is unavailable as a witness:

1) Former Testimony

2) Statement made under belief of impending death

3) Statement against interest

Question 29

Statement Under Belief of Impending Death

Answer 29

In a civil or criminal trial, a statement made by a declarant while reasonably believing that his death was imminent;

concerning the physical cause or instrumentalities of what the declarant reasonably believed to be his impending death or the circumstances surrounding his impending death.

-NOTE: Must reasonably believe death is imminent and the statement has to be about the cause of the victim’s injury.

-To be admissible, the declarant MUST be unavailable to testify.

Question 30

Statement Against Interest

Answer 30

A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest;

or tended to subject the declarant to liability or to render invalid a claim by the declarant against another;

so that a person in the declarant’s position would not have made the statement unless he believed it to be true.

-Note: A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is INADMISSIBLE, UNLESS there is CORROBORATING EVIDENCE to show the trustworthiness of the statement.

-To be admissible, the declarant MUST be unavailable to testify.

Question 31

Hearsay Within Hearsay

Answer 31

Admissible so long as there’s a hearsay exception for each hearsay statement.

-THINK: 911 phone calls (i.e., “my son just told me” and person saying what the son said is not available to testify = double hearsay)

-Another example: medical statements made by someone to person taking them to the hospital

Question 32

Requirement of Authentication or Identification

Answer 32

Authentication or identification of evidence is required as a condition precedent to its admissibility.

-The requirements of this are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Question 33

Best Evidence Rule

Answer 33

The best evidence rule states that instead of introducing other pieces of evidence to show a writing, recording or photograph, the original evidence (i.e., the actual writing, recording or photograph) should just be introduced instead.

Question 34

Exceptions to the Best Evidence Rule

Answer 34

Evidence different than the the original is allowed where:

1) all originals are lost or destroyed (unless done in bad faith);

2) the original cannot be obtained in State by judicial process/procedure;

3) the original was under control of the party against whom it was offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing; or

4) the writing, recording or photograph is NOT related to a controlling issue in the case.

Question 35

Matters which must be judicially noticed

Answer 35

A court must take judicial notice of:

1) Laws / resolutions of the FL Legislature and Congress;

2) FL rules of court that have statewide application, its own rules, and rules adopted by the FL Supreme Court;

3) Rules of the U.S. Supreme Court and U.S. Court of Appeals

Question 36

Compulsory Judicial Notice Upon Request

Answer 36

A court shall take judicial notice when a party requests it and:

1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request.

2) Furnishes the court with sufficient info to enable it to make judicial notice of the matter.

Question 37

Exclusion of Relevant Evidence (403 balancing test)

Answer 37

Relevant evidence is INADMISSIBLE 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 38

Routine Practice

Answer 38

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 w/ the routine practice.

-NOTE: Habit of a person requires corroborating evidence.

Question 39

Subsequent Remedial Measures

Answer 39

Evidence of measures taken after an injury or harm caused by an event, which if such measures were taken before the event would’ve made the 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.

–NOTE: 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.

(USE SUBSEQUENT REMEDIAL MEASURES FOR IMPEACHMENT)

Question 40

Compromises and Offers to Compromise

Answer 40

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 of its value.

Question 41

Payment of Medical or Similar Expenses

Answer 41

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 42

Offer to Plead Guilty; Nolo Contendere; Withdrawn Pleas of Guilty

Answer 42

Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or to any other crime is INADMISSIBLE in a civil or criminal proceeding.

Question 43

Psychotherapist-Patient Privilege

Answer 43

A person authorized to practice medicine, a certified psychologist or social worker, or marriage/family therapist or mental health counselor;

who is engaged in the DIAGNOSIS OR TREATMENT of a mental or emotional condition (including alcoholism or drug addiction).

-Look at this from the POV of the patient; must reasonably believe the person is authorized to practice medicine

-There is NO physician-patient privilege in FL

Question 44

Husband-Wife Privilege

Answer 44

A spouse has a privilege DURING and AFTER the marriage 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.

-Note: Spouse can always still testify about what he/she observed.

-THERE IS NO PRIVILEGE IF IT’S A PROCEEDING BROUGHT BY 1 SPOUSE AGAINST THE OTHER