Evidence Set #1

Question 1

evidence of habit

Answer 1

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.

Question 2

character evidence: means of proving character (general disposition)

Answer 2

character cannot be proved by opinion testimony

Question 3

how D proves character

Answer 3

FL restricts the D’s witness to reputation evidence to prove the D’s character

Question 4

how prosecution rebuts D’s character evidence

Answer 4

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”

Question 5

character evidence about AV in criminal case; D’s initiative

Answer 5

AV’s character not proven by opinion; P rebuts only by reputation evidence of AV’s good character for same trait admissible

Question 6

specific acts of misconduct admissible if independently relevant: types

Answer 6

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

Question 7

specific acts of misconduct admissible if independently relevant: quantum of proof

Answer 7

to be admissible, similar acts must be STRIKINGLY SIMILAR and share some UNIQUE CHARACTERISTIC or combination of characteristics that set them apart

Question 8

prior acts of sexual assault or child molestation

Answer 8

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

Question 9

facts appropriate for judicial notice

Answer 9

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

Question 10

conclusiveness of judicial notice

Answer 10

court has discretion in both criminal and civil cases

Question 11

competency of witness-dead man acts

Answer 11

repealed in FL in 2005

Question 12

opinion testimony by lay witnesses

Answer 12

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

Question 13

opinion testimony by expert witness in general

Answer 13

must be appropriate matter for expert testimony

Question 14

opinion testimony by expert witness standard

Answer 14

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

Question 15

authoritative texts and treatises

Answer 15

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

Question 16

prior inconsistent statement-laying a foundation

Answer 16

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

Question 17

type of prior crime permitted

Answer 17

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

Question 18

specificity of objections

Answer 18

must be specific if not apparent from context of questioning

Question 19

physician privilege

Answer 19

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

Question 20

spousal privilege in court

Answer 20

recognizes “marital privilege;” no spousal immunity

Question 21

professional journalist privilege

Answer 21

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

Question 22

prior statement of identifcation

Answer 22

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

Question 23

admissions by party opponent

Answer 23

exception to hearsay

Question 24

vicarious admissions & co-conspirators

Answer 24

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

Question 25

stock quotes as evidence

Answer 25

exception to hearsay

Question 26

going to rehab as evidence

Answer 26

remedial measure and not permitted by public policy

Question 27

are pardoned convictions admissible?

Answer 27

yes

Question 28

discovery of non-W expert not expected to be called at trial can be gotten by:

Answer 28

1-asked info about expert in interrogatories; 2-shows exceptional circumstances

Question 29

account-client privilege

Answer 29

recognized in FL

Question 30

dying declarations

Answer 30

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

Question 31

handwriting testimony by lay person

Answer 31

admissible if person has sufficient familiarity w/ that person’s handwriting; may be called to prove or disprove the genuineness of the handwriting

Question 32

present sense impression & excited utterance availability of W:

Answer 32

immaterial

Question 33

police reports

Answer 33

can’t enter into evidence; can use to refresh recollection of officer

Question 34

clergy privilege

Answer 34

even if person is not actually a clergy, but declarant reasonably believed him to be at time of confession

Question 35

sexual abuse counselor

Answer 35

FL recognizes as privileged

Question 36

physician-patient rule waived when:

Answer 36

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