Evidence Set #3

Question 1

What are the three sources of evidence law?

Answer 1

(i) state common law and miscellaneous state statutes, (ii) comprehensive state evidence codes, and (iii) the Federal Rules of Evidence

Question 2

What is the difference between direct and circumstantial evidence?

Answer 2

Direct evidence involves no inferences. It is testimony or real evidence that speaks directly to a material issue in the case. Circumstantial evidence is indirect and relies on inference. It is evidence of a subsidiary or collateral fact from which, alone or in conjunction with other facts, the existence of the material issue can be inferred.

Question 3

Under what circumstance must a court exclude evidence entirely?

Answer 3

If the court determines that, even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose

Question 4

Relevance Questions should be approached in what two steps?

Answer 4

1) Determine whether the evidence is relevant (i.e., tends to prove or disprove a material fact) 2) If relevant, determine whether the evidence should nonetheless be excluded based on: (i) judicial discretion (i.e., probative value outweighed by prejudice, etc.), or (ii) public policy (e.g., insurance, subsequent repairs)

Question 5

When is evidence relevant?

Answer 5

Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence

Question 6

What is the general rule of relevance?

Answer 6

Generally, the evidence must relate to the time, event, or person involved in the present litigation; otherwise, it is not relevant. (An important factor is its proximity in time to the current events).

Question 7

Will previous similar occurrences be relevant? When?

Answer 7

Yes previous similar occurrences may be relevant if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice.

Question 8

What are nine ways in which similar occurrences can be relevant to the immediate occurrence at issue?

Answer 8

1) Causation - (e.g., damage to nearby homes caused by D’s blasting is relevant to prove D’s blasting damaged P’s home). 2) Prior False Claims or Same Bodily Injury - while evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim, it is usually relevant to prove that: (i) the present claim is likely to be false, or (ii) the plaintiff’s condition is attributable in whole or in part to the prior injury. 3) Similar Accidents or Injuries Caused by Same Event or Condition - admissible to prove: (i) the existence of a dangerous condition, (ii) that the defendant had knowledge of the dangerous condition, and (iii) that the dangerous condition was the cause of the present injury 4) Previous Similar Acts Admissible to Prove Intent - (e.g., history of school segregation admissible to show motive for current exclusion of minorities) 5) Rebutting Claim of Impossibility - (e.g., defendant’s claim that car will not go above 50 mph can be rebutted by showing occasions when car went more than 50 mph) 6) Sales of Similar Property 7) Habit - Habit describes a person’s regular response to a specific set of circumstances and is admissible only to corroborate other evidence that shows the habit occurred at the relevant time. Note: watch for words such as “instinctively” and “automatically” in a question’s fact pattern. These words indicate habit. 8) Industrial or Business Routine - allows uncorroborated evidence of the routine practice of an organization to prove that the organization acted in accordance with the routine practice 9) Industry Custom as Evidence of Standard of Care - to show adherence to or deviance from an industry-wide standard of care

Question 9

What is the scope of the trial judge’s discretion to limit relevant evidence?

Answer 9

A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence

Question 10

What are six types of evidence excluded for public policy reasons?

Answer 10

1) Liability Insurance - evidence of insurance against liability is not admissible to show negligence or ability to pay. However, it may be admissible: (i) to prove ownership or control, (ii) to impeach, or (iii) as part of an admission of liability. 2) Subsequent Remedial Measures - Not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. However, it may be admissible to: (i) prove ownership or control, (ii) rebut a claim that the precaution was not feasible, or (iii) prove that the opposing party has destroyed evidence. 3) Settlement Offers - Not admissible to prove or disprove the validity or amount of a disputed claim, or to impeach a witness by prior inconsistent statement or contradiction. Conduct or statements made in the course of negotiating a compromise–including direct admissions of liability–are also inadmissible for these purposes. There is a limited exception for conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority which is not excluded when offered in a criminal case. 4) Offer to Pay Medical Expenses - However, unlike the situation with compromise negotiations, admissions of fact accompanying offers to pay medical expenses are admissible. 5) Withdrawn Guilty Pleas - this includes pleas of nolo contendere and offers to plead guilty 6) Expressions of Sympathy - In a Florida civil case, that portion of a statement, writing, or benevolent gesture that expresses 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 the family of that person is inadmissible. However, a statement of fault that is part of, or in addition to, any of the above will be admissible in evidence.

Question 11

Character evidence may be offered as substantive, rather than impeachment, evidence for what two things?

Answer 11

(i) prove character when it is the ultimate issue in the case, or (ii) serve as circumstantial evidence of how a person probably acted

Question 12

How is character proved by opinion testimony?

Answer 12

In Florida character cannot be proved by opinion testimony

Question 13

To what degree is character evidence admissible in civil cases?

Answer 13

Unless character is directly in issue (e.g., defamation), evidence of character offered by either party to prove the conduct of a person in the litigated event is generally not admissible in a civil case. For example, a plaintiff in a suit involving a car accident may not introduce evidence that the defendant is usually a reckless driver to prove that she was negligent at the time in question, nor may the defendant introduce evidence that she is generally a cautious driver.

Question 14

Who may initiate evidence of character in a criminal case?

Answer 14

The prosecution cannot initiate evidence of bad character of the defendant merely to show that she is more likely to have committed the crime. (Although the prosecution may introduce evidence of prior misconduct for reasons other than propensity to commit the crime). The accused, however, may introduce evidence of her good character to show her innocence of the alleged crime.

Question 15

to what extent may a criminal defendant prove character?

Answer 15

Florida restricts the defendant’s witness to reputation evidence to prove the defendant’s character. Opinion testimony is not allowed

Question 16

to what extent may the prosecution rebut a criminal defendant’s character evidence?

Answer 16

In Florida, witnesses may testify to the defendant’s bad reputation, but they may not give their own opinion of the defendant’s character

Question 17

to what extent may a victim’s character be proved in a criminal case?

Answer 17

In Florida, the victim’s character cannot be proved by opinion testimony

Question 18

What is the rule on character evidence regarding a rape victim’s past behavior?

Answer 18

The Florida rape shield statute applies to criminal sexual battery and human trafficking prosecution only. It prohibits reputation evidence relating to a victim’s prior sexual conduct. It also limits the admissibility of evidence of specific instances of prior consensual sexual activity between the victim and persons other than the defendant; however, such evidence may be admitted after an in camera proceeding if: (1) it tends to prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or (2) there is a similar pattern of conduct by the victim that tends to establish consent.

Question 19

When is evidence of specific acts of misconduct admissible?

Answer 19

Evidence of other crimes or misconduct is admissible if relevant to some issue other than the defendant’s character or disposition to commit the crime charged. Such issues include motive (e.g., burn building to hide embezzlement), intent (e.g, guilty knowledge, lack of good faith), absence of mistake or accident, identity (e.g., stolen gun used or “signature” crimes), or common plan or scheme. In a criminal case, the prosecution must, upon request, provide reasonable notice prior to trial of the general nature of any of this type of evidence it intends to introduce. In Florida, prosecution must give 10 days’ notice of intent to use other acts of evidence (regardless of whether the defendant requested notice).

Question 20

What is the standard of admissibility for specific acts of misconduct (regarding character evidence) to be admissible

Answer 20

In Florida, to be admissible, similar acts must be strikingly similar and share some unique characteristic or combination of characteristics that set them apart.

Question 21

For character evidence, are prior acts of sexual assault or child molestation admissible for character evidence?

Answer 21

In Florida, evidence of a defendant’s prior acts of sexual assault or child molestation is admissible only in criminal cases where the defendant is accused of committing the same type of act. (For the purposes of this rule, “child molestation” refers to prohibited sexual conduct against a person 16 years old or younger.) If admissible, such evidence may be considered for its bearing on any matter as to which it is relevant.

Question 22

What are the facts appropriate for judicial notice?

Answer 22

Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts). Courts have increasingly taken judicial notice of scientific principles as a type of manifest fact.

Question 23

For judicial notice to be mandatory, Florida requires that the resting party do what two things?

Answer 23

(1) provide each adverse party with timely written notice of the request; and (2) file proof of such notice with the court

Question 24

A Florida court must take judicial notice of what three things?

Answer 24

(1) Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the US. (2) Florida rules of court that have statewide application, its own rules, and the rules of the US courts adopted by the US S Ct. (3) Rules of court of the US S Ct and of the US Ct of App

Question 25

May judicial notice be taken for the first time on appeal?

Answer 25

Yes

Question 26

Are judicially noticed facts always conclusive?

Answer 26

In Florida, the court has discretion to determine whether judicial notice of a fact is conclusive. If such a finding is made, the jury is instructed to accept the fact as judicially noticed

Question 27

What are the 13 Permissive Judicial Notices of Law?

Answer 27

A Florida court may take judicial notice of: (1) Special, local, and private acts and resolutions of the US Congress and of the FL Legislature (2) Decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the US. (3) Contents of the Federal Register (4) Laws of foreign nations and of an organization of nations (5) Official actions of the legislative, executive, and judicial departments of the US and of any state, territory, or jurisdiction of the US (6) Records of any court of this state or of any court of records of the US or of any state, territory, or jurisdiction of the US. (7) Rules of court of any court of the US or of any state, territory, or jurisdiction of the US. (8) Provisions of all municipal and county charters and charter amendments of this state, provided they are available in printed or as certified copies. (9) Rules promulgated by governmental agencies of this state which are published in the FL Administrative Code or in bound written copies (10) Duly enacted ordinances and resolutions of municipalities and counties located in Florida, provided such ordinances and resolutions are available in printed copies or as certified copies. (11) Facts that are no 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 reasonably be questioned (13) Official seals of governmental agencies and departments of the US and of any state, territory, or jurisdiction of the US

Question 28

What is real evidence?

Answer 28

Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative)

Question 29

What are the four requirements of admissibility for real evidence?

Answer 29

Real evidence must be relevant and meet the following legal requirements: Authentication - the object must be identified as what the proponent claims it to be, either by testimony of a witness that she recognizes the object as what the proponent claims it is; or evidence that the object has been held in a substantially unbroken chain of possession. Condition of Object - If the condition of the object is significant, it must be shown to be in substantially the same condition at trial Balancing Test–Legal Relevance - Some auxiliary policy or principle may outweigh the need to admit the real evidence. Such policies include physical inconvenience of bringing the object into the courtroom, indecency or impropriety, or undue prejudice

Question 30

When is exhibition of a child allowed as real evidence?

Answer 30

In paternity suits, almost all courts permit exhibition of the child to show whether she is the race of the putative father. The courts are divided with respect to the propriety of exhibition for the purpose of proving physical resemblance to the putative father.

Question 31

When are reproductions or other explanatory real evidence allowed?

Answer 31

Relevant photographs, diagram, maps, or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice. However, items used entirely for explanatory purposes are permitted at a trial, but are not usually admitted into evidence (i.e., they are not given to the jury during its deliberations)

Question 32

When are maps, charts, models, etc. allowed as real evidence?

Answer 32

Usually admissible for the purpose of illustrating testimony, but must be authenticated (testimonial evidence that they are faithful reproductions of the object or thing depicted)

Question 33

When are demonstrations as real evidence allowed?

Answer 33

The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that are substantially similar to those attending the original event. Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury

Question 34

When are exhibition of injuries allowed as real evidence?

Answer 34

Exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude this evidence if unfair prejudice would result.

Question 35

When is a jury view of the scene allowed as real evidence?

Answer 35

The trial court has discretion to permit the jury to view places at issue in a civil or criminal case. The need for the view and changes in the condition of the premises are relevant considerations here.

Question 36

When is the general rule on admissibility of documentary evidence?

Answer 36

Documentary evidence must be relevant in order to be admissible. In the case of writings, the authenticity of the document is one aspect of its relevancy.

Question 37

What is the level of proof needed for authentication of documentary evidence?

Answer 37

As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness.

Question 38

What are 7 examples of proper authentication of documentary evidence?

Answer 38

(a) Admissions - a writing may be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic. (b) Eyewitness Testimony - A writing can be authenticated by testimony of one who sees it executed or hears it acknowledged. The testimony need not be given by a subscribing witness (c) Handwriting Verifications - This evidence may be the opinion of a nonexpert with personal knowledge of the alleged writer’s handwriting or the opinion of an expert who has compared the writing to samples of the maker’s handwriting. Genuineness may also be determined by the trier of fact through comparison of samples. (d) Ancient Documents - by evidence that is at least 20 years old; is in such condition as to be free from suspicion as to its authenticity; and was found in a place where such a writing would likely be kept (e) Reply Letter Doctrine - A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author. (f) Photographs - Generally admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. If a photo is taken when no person who could authenticate the scene is present, the photo may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph was developed from film obtained from that camera. (g) X-Ray Pictures, Electrocardiograms, Etc. - Unlike photos, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.

Question 39

By one of what four methods may statements made during a telephone conversation be authenticated?

Answer 39

By one of the parties to the call who testifies that: (i) he recognized the other party’s voice; (ii) the speaker had knowledge of certain facts that only a particular person would have; (iii) he called a particular person’s number a voice answered as that person or that person’s residence; or (iv) he called a business and talked with the person answering the phone about matters relevant to the business.

Question 40

What are 9 self-authenticating documents (extrinsic evidence of authenticity is not required):

Answer 40

(i) domestic public documents bearing a seal, (ii) similar official foreign public documents, (iii) certified copies of public records, (iv) official publications, (v) newspapers and periodicals, (vi) trade inscriptions, (vii) acknowledged documents, (viii) commercial paper and related documents, and (ix) business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection.

Question 41

What is the best evidence rule?

Answer 41

More accurately called the “original document rule,” to prove the terms of a writing (including a recording, photograph, or X-ray), the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing (e.g., oral testimony) is admissible only if the original is unavailable.

Question 42

Two what two classes of situations does the best evidence rule apply?

Answer 42

namely where: (i) the writing is a legally operative or dispositive instrument; or (ii) the knowledge of a witness concerning a fact results from having read it in the document.

Question 43

The best evidence rule does not apply in what four circumstances?

Answer 43

Fact to be Proved Exists Independently of Writing - The rule does not apply where the fact to be proved has an existence independent of any writing. Many writings record details of essentially nonwritten transactions. Oral testimony of these facts may be given without the original writings recording the event. Writing is Collateral to Litigated Issue - The rule does not apply where the writing is of minor importance (i.e., collateral) to the matter in controversy Summaries of Voluminous Records - The rule does not apply to summaries of voluminous records. It would be inconvenient to examine a voluminous collection of writings in court, and so the proponent may present their contents in the form of a chart or summary. Public Records - The rule does not apply to copies of public records that are certified as correct or testified to as correct.

Question 44

For purposes of the best evidence rule, are copies treated the same as originals?

Answer 44

It is important to distinguish photocopies and copies made by hand. Photocopies are duplicates and, thus, are treated the same as originals. In contrast, handwritten copies are considered secondary evidence and are admissible only if the original or a duplicate is unavailable

Question 45

When, if ever, may secondary evidence (handwritten copies, notes, oral testimony) of an original writing’s contents be produced in court?

Answer 45

If a satisfactory explanation is given for the nonproduction of the original

Question 46

What are the three valid excuses justifying the admissibility of secondary evidence in bypassing the best evidence rule?

Answer 46

1) loss or destruction of the original 2) the original is in possession of a third party outside the jurisdiction and is unobtainable 3) the original is in the possession of an adversary who, after due notice, fails to produce the original.

Question 47

What are the roles of the court and of the jury in determining admissibility of duplicates, other copies, and oral testimony as to the contents of an original?

Answer 47

Ordinarily it is for the court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original. However, the Fed Rules reserve the following questions of preliminary fact for the jury: Whether the original ever existed; Whether a writing, recording, or photograph produced at trial is an original; and Whether the evidence offered correctly reflects the contents of the original

Question 48

What is the general rule of competency of witnesses and what are the four basic testimonial attributes?

Answer 48

Witnesses must past tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established. Witnesses must possess to some degree four basic testimonial attributes: the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully

Question 49

The Fed Rules do not specify any mental or moral qualifications for witness testimony beyond these two limitations

Answer 49

(i) there must be evidence sufficient to support a finding that the witness has personal knowledge of the matter about which he is to testify (note that proof of personal knowledge may consist of the witness’s own testimony); and (ii) the witness must declare he will testify truthfully Note: If a witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation

Question 50

What is the rule for competency as it relates to infancy

Answer 50

The competency of an infant depends on the capacity and intelligence of the particular child as determined by the trial judge

Question 51

What is the rule for competency as it relates to insanity?

Answer 51

an insane person may testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately

Question 52

What is the rule for competency as it relates to judges and jurors?

Answer 52

The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting.

Question 53

During an inquiry into the validity of a verdict or indictment, what is a juror generally allowed and not allowed to testify about?

Answer 53

A juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote, and the court may not receive evidence of a juror’s statement on such matters. However, a juror may testify as to: (a) whether any extraneous prejudicial information was improperly brought to the jury’s attention; (b) whether any outside influence was improperly brought to bear on any juror; (c) whether there is a mistake on the verdict form; or (d) whether any juror made a clear statement that he relied on racial stereotypes or animus to convict a criminal defendant. Note that not every comment indicating racial bias will qualify; the court must find that racial animus was a significant motivating factor in the juror’s vote to convict.

Question 54

What are the two categories of competency of hypnotic testimony and what is the basis of admissibility of each?

Answer 54

Testimony based on independent recollection: testimony is admissible when (1) a witness provides a description of a suspect at the time of the crime, (2) the information elicited from a subsequent hypnotic session is consistent with that previous description, and (3) the witness testifies in court based on an independent recollection of the event. Note that the fact that hypnosis took place goes to the weigh, not the admissibility, of the testimony Hypnotically refreshed testimony: testimony based on a memory refreshed or enhanced through hypnosis is inadmissible per se in a criminal trial. Moreover, a witness cannot testify to any new matter discovered through hypnosis. However, hypnosis does not render a witness incompetent to testify to a fact recalled prior to hypnosis if the fact is properly recorded. Exception: the hypnotically refreshed testimony of a criminal defendant might be admissible, provided the prosecution was given reasonable notice of the hypnosis session and the session was recorded to ensure compliance with proper procedures and practices.

Question 55

The judge may exercise reasonable control over the examination of witnesses for what three reasons?

Answer 55

to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment

Question 56

What is the rule on leading questions?

Answer 56

leading questions (i.e., questions that suggest the answer desired) are generally improper on direct examination. However, they are permitted: a. on cross examination; b. to elicit preliminary or introductory matter; c. when the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or d. when the witness is hostile

Question 57

What are the types of questions that are improper during examination of witnesses?

Answer 57

questions that are misleading (cannot be answered without making an unintended admission), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted

Question 58

What are the types of answers that are improper during examination of witnesses?

Answer 58

Answers that lack foundation (the witness has insufficient personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken

Question 59

When may a use of memoranda by a witness during examination of a witness be used and not be used?

Answer 59

A witness cannot read her testimony from a prepared memorandum. However, a memorandum may be used in certain circumstances. But there is distinguishment between present recollection revived–refreshing recollection and past recollection recorded–recorded recollection

Question 60

What are the rules for use by a witness of any writing or thing for the purpose of refreshing her present recollection

Answer 60

A witness may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern).

Question 61

When a witness uses a writing or thing for the purpose of refreshing her present recollection while on the stand, what is the adverse party entitled to?

Answer 61

The adverse party is entitled to have the writing produced at trial, cross-examine the witness thereon, and introduce portions relating to the witness’s testimony into evidence. If the witness refreshed her memory before taking the stand, an adverse party is entitled to such production and inspection only if the court decides that justice requires it.

Question 62

What are the rules for use by a witness of any writing or thing for the purpose of remembering when the witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a memorandum or other record given to her on the stand? (What five things are required for the foundation)

Answer 62

The record itself may be read into evidence if a proper foundation is laid. The foundation must include proof that: 1) the witness at one time had personal knowledge of the facts in the record; 2) the record was made by the witness or under her direction, or it was adopted by the witness; 3) the record was timely made when the matter was fresh in the witness’s mind; 4) the record accurately reflects the witness’s knowledge (i.e., witness testifies that it was accurate when made); and 5) the witness has insufficient recollection to testify fully and accurately. Note however that although the record may be read into evidence and heard by the jury, it cannot be admitted into evidence as an exhibit unless offered by an adverse party. This tends to come up on the bar exam.

Question 63

What is the general policy of the law on the admissibility of opinion testimony?

Answer 63

The general policy of the law is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful

Question 64

When is opinion by lay witnesses admissible? (3 conditions to be met)

Answer 64

In Florida, lay opinion is admissible when: (1) the witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in the form of opinions; (2) the testimony will not mislead the trier of fact; and (3) the opinions do not require special knowledge or training

Question 65

The opinion of a lay witness is generally admissible with respect to what 8 specific things?

Answer 65

1) the general appearance or condition of a person; 2) the state of emotion of a person; 3) matters involving a sense recognition; 4) voice or handwriting identification; 5) the speed of a moving object; 6) the value of his own services; 7) the rational or irrational nature of another’s conduct; and 8) intoxication of another

Question 66

Are opinions of lay witnesses admissible with regard to whether one acted as an agent or whether an agreement was made?

Answer 66

No

Question 67

What four things are needed for expert opinion testimony to be admissible?

Answer 67

(i) the subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact; (ii) the opinion must be based on sufficient facts or data; (iii) the opinion must be the product of reliable principles and methods; and (iv) the expert must have reliably applied the principles and methods to the facts of the case

Question 68

What are the five Daubert considerations for reliability of expert testimony?

Answer 68

whether an expert’s theory or methodology has been tested; whether it has been subject to peer review and publication; its known or potential error rate; the existence and maintenance of standards controlling its operation; and whether it is generally accepted in the relevant field. Various other factors may be appropriate depending on the circumstances and type of expert testimony.

Question 69

For the requirement that a expert’s opinion be supported by a proper factual basis, the opinion may be based on one or more of what three possible sources of information?

Answer 69

a) Facts based on the expert’s own personal observation (e.g., expert personally examined the injured plaintiff). b) Facts made known to the expert at trial (e.g., expert listens to testimony at trial, or counsel relates the facts to the expert on direct examination in the form of a hypothetical question). c) Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by experts in the particular field. Such facts need not be admissible as evidence.

Question 70

What is the rule on an expert rendering an opinion on ultimate issues?

Answer 70

Under the Fed Rules, an expert may render an opinion as to the ultimate issue in the case. However, in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue

Question 71

When may authoritative texts and treatises be used during testimony of an expert witness?

Answer 71

In Florida, authoritative publications can only be used during cross-examination of an expert. Excerpts from the publication may not be read into the record as substantive evidence (i.e., there is no hearsay exception for learned treatises). Moreover, the publication cannot be used to bolster the expert’s credibility.

Question 72

What is the rule on court-appointed experts?

Answer 72

A court has broad discretion to appoint expert witnesses (although this rule does not limit any party’s right to call its own experts). On a party’s motion or its own, the court may order the parties to show cause why experts should not be appointed and may ask the parties to submit nominations. The court may then appoint any expert who consents to act, and the court must inform the expert of their duties. The expert must advise the parties of any findings she makes, and any party may depose the expert, call the expert as a witness, or cross-examine the expert. The expert is entitled to reasonable compensation as set by the court. The court may authorize disclosure to the jury that the expert was appointed by the court.

Question 73

Regarding the restriction on cross examination of adverse witnesses, what two things is the cross-examination generally limited to

Answer 73

(i) the scope of direct examination, including all reasonable inferences that may be drawn from it, and (ii) testing the credibility of the witness

Question 74

What is the general rule on accrediting or bolstering the testimony of one’s own witness

Answer 74

Generally, a party may not bolster or accredit the testimony of his witness (e.g., by introducing a prior consistent statement) until the witness has been impeached. However, in certain cases, a party may prove the witness made a timely complaint or a prior statement of identification. The prior identification may also serve as substantive evidence that the identification was correct.

Question 75

Is it correct that any party, including the party calling the witness, may impeach the witness

Answer 75

yes

Question 76

What is the general rule on using a prior inconsistent statement as an impeachment method?

Answer 76

A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.

Question 77

Is a prior statement that omits a fact asserted during the current testimony considered a prior inconsistent statement?

Answer 77

It may constitute an inconsistency if it would have been natural for the witness to include the fact in the statement if she believed it to be true. On its own, a witness’s present lack of memory of a fact is generally not inconsistent with a prior statement relating that fact; however, the court may find an inconsistency where the witness’s memory loss appear feigned.

Question 78

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if what two conditions are met?

Answer 78

(i) the witness is, at a point before introduction of the statement by extrinsic evidence, given an opportunity to explain or deny the statement; and (ii) if the witness denies or does not admit making the statement, the extrinsic evidence is admissible. Likewise, a prior statement that is written must be shown to the witness who wrote it before he can be examined about it

Question 79

What is the evidentiary effect of a prior inconsistent statement?

Answer 79

Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.

Question 80

What is the rule for introducing extrinsic evidence to show bias or interest in the outcome of a suit (and therefore that the witness has a motive to lie)?

Answer 80

Most courts require that before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination

Question 81

For what two types of crimes may a witness be impeached in Florida?

Answer 81

(1) any crime involving dishonesty or false statement; or (2) any felony. However, the court has discretion to exclude any prior conviction, even if it involves dishonesty or false statement. The general Rule 403 balancing test applies to all convictions regardless of the identity of the witness. Also note that Florida courts have specifically held that a defendant or other witness may not be impeached with evidence of a prior guilty plea or guilty verdict if the trial court in that case withheld adjudication of guilt or did not enter a final judgment of conviction (e.g., the trial court may have placed the defendant on probation)

Question 82

Are remote convictions generally admissible?

Answer 82

The Florida Evidence Code provides that a conviction is inadmissible in a civil case if it is “so remote in time as to have no bearing on the present character of the witness.” The Code does not set a definite time period by which to judge the remoteness of a conviction. Note that the Florida rule does not apply to exclude remote convictions in criminal cases. However, a party seeking to exclude a conviction on remoteness grounds may argue that the conviction is so old that its probative value is substantially outweighed by the danger of unfair prejudice.

Question 83

May a party ask about the specifics of prior convictions from testifying witnesses? to what extent?

Answer 83

In Florida, a party cannot ask about the specifics of the prior convictions unless the defendant or witness is untruthful about whether he has such prior convictions and how many of them there are.

Question 84

Are juvenile adjudications ever admissible for impeachment purposes?

Answer 84

No, in Florida juvenile offenses are always inadmissible for impeachment purposes

Question 85

If a conviction was obtained in violation of the witness’ constitutional rights, may it still be used to impeach?

Answer 85

No, it is invalid for all purposes including impeachment

Question 86

What is the effect of a pardon on whether the conviction pardoned may be used to impeach a witness?

Answer 86

In Florida, if a witness has been pardoned for the crime, the conviction is still admissible for impeachment purposes. However, evidence of the pardon is admissible to rehabilitate the witness.

Question 87

Is foundation necessary for extrinsic evidence introduced to show a past conviction?

Answer 87

No foundation is necessary. Note that if a party introduces evidence of a prior conviction herself (e.g., to take out the sting of being impeached on cross-examination), she cannot later claim on appeal that the conviction was erroneously admitted.

Question 88

May a witness be asked about prior specific acts of misconduct for which he was not convicted?

Answer 88

In Florida, no.

Question 89

What is the scope to which opinion or reputation evidence may go towards untruthfulness as impeachment against a witness?

Answer 89

A witness may be impeached by showing that he has a poor reputation for truthfulness. This may include evidence of reputation in business circles as well as in the community in which the witness resides. Under the Fed Rule, an impeaching witness may also state his own opinion as to the character of a witness for truthfulness

Question 90

What are the three instances in which extrinsic evidence of contradictory facts to impeach is permitted

Answer 90

(i) the witness’s testimony on a particular fact is a material issue in the case, (ii) the testimony on a particular fact is significant on the issue of credibility, or (iii) the witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence

Question 91

If a witness makes a statement not directly relevant to the issue in the case but the statement is otherwise untrue in an immaterial way, may his opponent prove the statement untrue by either extrinsic evidence or by a prior inconsistent statement?

Answer 91

No, it bars his opponent from proving the statement untrue by either extrinsic evidence or by a prior inconsistent statement

Question 92

May the credibility of someone who does not testify but whose out-of-court statement is introduced at trial be attacked by evidence that would be admissible if the declarant had testified as a witness?

Answer 92

Yes. The declarant need not be given the opportunity to explain or deny a prior inconsistent statement. In addition, the party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine him about the statement.

Question 93

A witness who has been impeached may be rehabilitated by what three methods?

Answer 93

(i) explanation on direct - the witness may explain or clarify facts brought out on cross-examination (ii) good reputation for truthfulness - since in Florida character may not be proved by opinion testimony, an impeached witness may be rehabilitated by reputation testimony, but not by opinion testimony (iii) prior consistent statement

Question 94

What are the two situations in which a party may rehabilitate a witness by showing a prior consistent statement?

Answer 94

First, if the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence. Second, if the witness’s testimony is impeached on some different ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or a sensory deficiency, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility. Note that a prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents

Question 95

What is the difference between the form of a question and the substance of a question as to when it should be objected to if the question is part of a deposition?

Answer 95

At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.

Question 96

When will a sustained general objection be upheld on appeal and an overruled general objection be upheld on appeal?

Answer 96

A sustained general objection (one that does not state the grounds of the objection) will be upheld on appeal if there was any ground for the objection. An overruled general objection will be upheld on appeal unless the evidence was not admissible under any circumstances for any purpose.

Question 97

When will a sustained specific objection be upheld on appeal?

Answer 97

A sustained specific objection, which states the reason for the objection, will be upheld on appeal only if the ground stated was correct or if the evidence excluded was not competent and could not be made so

Question 98

Where part or all of a writing or recorded statement is introduced into evidence, how much more of the writing or recorded statement may the adverse party require introduction of?

Answer 98

the adverse party may require the proponent of the evidence to introduce any other part, or any related writing or recorded statement, that ought in fairness to be considered.

Question 99

who may and may not move to strike an unresponsive answer?

Answer 99

Examining counsel may move to strike an unresponsive answer, but opposing counsel may not

Question 100

What is the requirement of when an objection must be stated specifically?

Answer 100

Florida law requires that the specific ground for the objection be given if it is not apparent from the context of the questioning

Question 101

What is a testimonial privilege

Answer 101

Testimonial privileges permit one to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings

Question 102

Federal courts currently recognize what 6 privileges?

Answer 102

The attorney-client privilege; spousal immunity; the privilege for confidential marital communications; the psychotherapist/social worker-client privilege; the clergy-penitent privilege; and governmental privileges

Question 103

What is the scope of attorney-client privilege as to when its inapplicable in FL

Answer 103

Because FL law mandates that all public records be available for inspection, certain written communications between an attorney and a public entity client are not protected by the attorney-client privilege (except during pending litigation). Furthermore, statements between public officials and their attorneys at public agency meetings are not protected.

Question 104

What is the fiduciary attorney client privilege recognized in FL?

Answer 104

Under this privilege, a communication between a lawyer and a client who is acting as a fiduciary (personal representative, trustee, guardian or guardian ad litem, administrator ad litem, conservator) is privileged to the same extent as if the client were not acting as a fiduciary. For purposes of this privilege, the fiduciary is treated as the attorney’s only client (and thus the joint client rule does not apply). This means that if a dispute arises between the fiduciary and beneficiary, the communications between the attorney and fiduciary are privileged and are not subject to discovery by the beneficiary.

Question 105

What is the scope of physician-patient privilege in FL

Answer 105

The FL Evidence Code does not recognize a separate physician-patient privilege. There is a statute that provides that patient records may not be furnished to, and the medical condition of a patient may not be discussed with, any person without the patient’s written authorization except in certain limited circumstances. However, this statute does not create an evidentiary privilege between physician and patient, but merely recognizes the confidentiality of such information outside judicial proceedings. In any civil or criminal action, for example, patient records must be furnished when compelled by subpoena from a court of competent jurisdiction after proper notice to the patient or the patient’s legal representative by the party seeking such records.

Question 106

What is the scope of psychotherapist/social worker-client privilege in FL

Answer 106

This is for confidential communications between a patient and a psychotherapist for the purpose of diagnosis of a mental or emotional condition (including alcoholism and other drug addiction). A psychotherapist is defined as: (1) a licensed or certified psychologist; (2) a person licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under Florida law; (3) a person authorized to practice medicine, or reasonably believed by the patient to be so authorized, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition; (4) treatment personnel of licensed facilities engaged primarily in diagnosis or treatment of mental or emotional conditions; or (5) an advanced registered nurse practitioner whose primary scope of practice is diagnosis or treatment of mental or emotional conditions. Note that Florida also recognized privileges for (1) confidential communications between a sexual assault counselor or trained volunteer and a sexual assault victim; and (2) confidential communications concerning an incident of domestic violence by a victim to a registered domestic violence advocate

Question 107

To what extent does FL recognize a privilege for spousal immunity?

Answer 107

Florida does not recognize the doctrine of spousal immunity (but does recognize the privilege for confidential marital communications).

Question 108

What is the scope of the FL clergy-penitent privilege and to what four persons does it extent?

Answer 108

Florida recognizes a clergy-penitent privilege. A confidential communication between a person and a cleric made privately for the purpose of seeking spiritual counsel and advice in the usual course of practice is privileged. The privilege may be claimed by: (1) the person; (2) the clergy member, on behalf of the person; (3) a conservator or guardian of a person; or (4) the personal representative of a deceased person

Question 109

To what extent does FL recognize an accountant-client privilege?

Answer 109

Florida recognizes an accountant-client privilege, which protects information and communications a certified public accountant or a licensed public accountant obtains from a client that relate to the client’s business affairs

Question 110

What is the extent of the professional journalist privilege in FL and what is the three step process in overcoming that privilege

Answer 110

In FL, a professional journalist has a qualified privilege not to divulge information (or the identity of any source) obtained while actively gathering news (the privilege does not apply to physical evidence, eyewitness observations, or visual or audio recordings of crimes). A party may overcome the privilege by showing: (1) that the information is relevant and material to unresolved issues; (2) that the information cannot be obtained from alternative sources; and (3) that a compelling state interest exists requiring disclosure

Question 111

To what extent is there an accident report privilege in FL?

Answer 111

Florida recognizes a privilege for written reports made by persons involved in motor vehicle accidents. Such reports are for the confidential use of the Department of Highway Safety and are not admissible in either a criminal or civil trial that arises out of the accident. Statements made to a law enforcement officer for the purpose of completing the report are also included within the privilege, except that a criminal trial, an officer may testify to any statement made to him by the person involved in the accident (provided that person’s privilege against self-incrimination is not violated). Note: the results of breath, urine, and blood tests for alcohol, chemicals, or controlled substances conducted as part of a traffic accident investigative report are admissible in civil and criminal proceedings. They are not a communication privileged under the accident report privilege.

Question 112

Who may assert a privilege?

Answer 112

A privilege is personal to the holder; i.e., it generally may be asserted only by the holder. Sometimes the person with whom the confidence was shared may assert the privilege on the holder’s behalf

Question 113

What is the rule of confidentiality as it pertains to claiming privilege?

Answer 113

To be privileged, a communication must be shown or presumed to have been made in confidence

Question 114

What three things will waive a privilege?

Answer 114

any privilege is waived by: (i) failure to claim the privilege; (ii) voluntary disclosure of the privileged matter by the privilege holder; or (iii) a contractual provision waiving in advance the right to claim a privilege Note that the waiver by one joint holder does not affect the right of the other holder to assert the privilege

Question 115

How do eavesdroppers affect assertion of privilege?

Answer 115

A privilege based on confidential communications is not abrogated because it was overheard by someone whose presence is unknown to the parties. Under the modern view, in the absence of negligence by the one claiming privilege, even the eavesdropper would be prohibited from testifying.

Question 116

How does attorney-client privilege extend to corporate clients?

Answer 116

Corporations are “clients” within the meaning of the privilege, and statements made by corporate officials or employees to an attorney are protected if the employees were authorized by the corporation to make such statements

Question 117

If a representative of the attorney or client are present when something is said that client wishes to claim privilege to later, does the presence of any representative destroy the privilege?

Answer 117

No, representatives of the attorney or client may be present without destroying the privilege; otherwise, communications made in the known presence and hearing of a stranger are not privileged.

Question 118

Who holds the privilege in the attorney-client privilege and how long does it apply?

Answer 118

The client holds the privilege and she alone may waive it. The attorney’s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence. The attorney-client privilege applies indefinitely. The privilege even continues to apply after the client’s death

Question 119

In what four situations does the attorney-client privilege not apply?

Answer 119

1) if the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud; 2) regarding a communication relevant to an issue between parties claiming through the same deceased client; 3) for a communication relevant to an issue of breach of duty in a dispute between the attorney and client; and 4) where the client has put the legal services at issue in the case

Question 120

Is an attorney’s work product protected by attorney client privilege?

Answer 120

No. Although documents prepared by an attorney for his own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity

Question 121

What are the limitations on waiver of attorney-client privilege and work product rule?

Answer 121

A voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material. Undisclosed privileged material is subject to the wavier only if the waiver is intentional, the disclosed and undisclosed material concern the same subject matter, and the material should be considered together to avoid unfairness. There is no wavier if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error

Question 122

What is the rule on exclusion and sequestration of witnesses, as well as the four times they may not be excluded

Answer 122

Upon a party’s request, the trial judge must order witnesses excluded from the courtroom. The judge may also do this on his own motion. The judge, however, may not exclude: (i) a party or a designated officer or employee of a party, (ii) a person whose presence is essential to the presentation of a party’s claim or defense, (iii) a person statutorily authorized to be present, or (iv) The FL Evidence Code additionally provides that a witness in a criminal case may not be excluded from the courtroom if he is the victim of the crime, if 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, the court determines such person’s presence to be prejudicial

Question 123

At what point may a party object to the court’s examining or calling a witness?

Answer 123

Either at the time examined or called or at the next available opportunity when the jury is not present

Question 124

What is the hearsay rule and the reason for the rule?

Answer 124

The Federal Rules define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted. If a statement is hearsay, and no exception to the rule applies, the evidence must be excluded upon appropriate objection. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant

Question 125

For purposes of the hearsay rule, a “statement” is a person’s: (one of two things)

Answer 125

(i) oral or written assertion, or (ii) nonverbal conduct intended as an assertion (e.g., nod of the head)

Question 126

What are three out-of-court statements that are not hearsay

Answer 126

a. Verbal acts or legally operative facts (e.g., words of contract; defamatory words); b. Statements offered to show their effect on the listener or reader (e.g., to prove notice in negligence case); and c. Statements offered as circumstantial evidence of declarant’s state of mind (e.g., evidence of insanity or knowledge)

Question 127

Can nonhuman declarations be hearsay?

Answer 127

No, there is no such thing as animal or machine hearsay; there must be an out-of-court statement by a person. Thus, testimony about what a radar gun “said” or what a drug-sniffing dog did is not hearsay (but still must be relevant and authenticated to be admitted)

Question 128

In what three situations is a prior statement by a witness who is subject to cross examination not hearsay

Answer 128

a. The prior statement is inconsistent with the declarant’s in-court testimony and was given under penalty of perjury at a prior proceeding; b. The prior statement is consistent with the declarant’s in-court testimony and is (i) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or (ii) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or sensory deficiency; or c. The prior statement is one of identification of a person as someone the witness perceived earlier, even if the witness cannot remember the identification

Question 129

How is an opposing party’s statement (i.e., any statement made by a party and offered against that party) treated under Florida rules as far as hearsay

Answer 129

In Florida, admissions are treated as an exception to the hearsay rule rather than as nonhearsay. Note that these statements are traditionally called “admissions of a party opponent,” but this is misleading because the declarant need not “admit” anything. To qualify as an opposing party’s statement, the statement need not have been against the declarant’s interest when made, and may even be in the form of an opinion. Personal knowledge is not required; the statement may be predicated on hearsay.

Question 130

If a party remains silent in the face of accusatory statements, his silence may be considered an implied statement if the following three requirements are met:

Answer 130

(i) The party heard and understood the statement; (ii) The party was physically and mentally capable of denying the statement; and (iii) A reasonable person would have denied the accusation Note, however, that silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime

Question 131

Is a statement of one party receivable against her co-parties due to their being joined as parties

Answer 131

No, statements of a party are not receivable against her co-parties merely because they happen to be joined as parties

Question 132

If a statement is made by a person authorized by a party to speak on the party’s behalf (e.g., statement by company’s press agent), can that statement be admitted against the party?

Answer 132

Yes

Question 133

What are the conditions that need to be met before a statement by an agent or employee is admissible against the principal

Answer 133

If the statement: (i) concerned any matter within the scope of her agency or employment, and (ii) was made during the existence of the agency or employment relationships Note that if an employee’s statement concerned a topic outside the scope of her position, or she made the statement after her employment was terminated, it won’t qualify as a vicarious statement of the employer

Question 134

To what extent are vicarious statement by partners admissible as against the others as non hearsay

Answer 134

After a partnership is shown to exist, a statement of one partner relating to matters within the scope of the partnership business is binding upon her co-partners

Question 135

What is the rule for vicarious admissions by co-conspirators

Answer 135

In Florida, hearsay statements of a co-conspirator are inadmissible to prove participation of another co-conspirator in the conspiracy. Upon request of counsel, the court must instruct the jury that the conspiracy (and each member’s participation in it) must be established by independent evidence. Once the conspiracy is established, the conspirator’s statements will qualify as vicarious admissions of the co-conspirator

Question 136

Before admitting an out-of-court statement as a vicarious statement of an opposing party, what must the court consider as a part of its preliminary determination of the declarant’s relationship with the party against whom the statement is offered?

Answer 136

In making such a determination, the court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship

Question 137

In what five instances is a declarant unavailable for the sake of hearsay exceptions

Answer 137

There are exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify. A declarant is unavailable if he: a. Is exempt from testifying because of privilege; b. Refuses to testify concerning the statement despite a court order; c. Testifies that he does not remember the subject matter; d. Is unable to testify due to death or physical or mental illness; or e. Is absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure his attendance or testimony by process or other reasonable means.

Question 138

When is the former testimony of an unavailable witness admissible in Florida as a hearsay exception?

Answer 138

Florida’s hearsay exception for former testimony in a criminal proceeding requires that the witness be unavailable. However, unavailability is not required for civil proceedings. But note: The Florida Court of Appeals held that this lack of an unavailability requirement was unconstitutional

Question 139

Is grand jury testimony of an unavailable declarant admissible at the defendant’s later trial?

Answer 139

No since grand jury proceedings do not provide the accused with an opportunity fro cross-examination

Question 140

What is the rule for admissibility of statements against interest

Answer 140

A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true. The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against her interest when she made it.

Question 141

For statements against interest to be admissible as statements of a now-unavailable witness in a criminal case, what is required?

Answer 141

Fed Rules require corroborating circumstances indicating the trustworthiness of statements against penal interest

Question 142

What is the major limiting factor of admissibility of statements against interest of a now-unavailable witness?

Answer 142

“Statement” means a single remark. If a person makes a declaration containing statements that are against his interest (e.g., “I sold the drugs”) and statements that are not (e.g., “X runs the drug ring”), the exception only covers those remarks that inculpate the declarant, not the entire extended declaration.

Question 143

In what type of actions are dying declarations admissible?

Answer 143

In all actions. Fed rules limit it to any civil action or a homicide prosecution but FL allows in all actions.

Question 144

When is a statement made by a now-unavailable declarant that made a dying declaration admissible? (two steps)

Answer 144

a. The declarant believed his death was imminent (he need not actually die); and b. The statement concerned the cause or circumstances of what he believed to be his impending death. Note that the statement must be based on the declarant’s perceptions and firsthand knowledge of what happened (e.g., an unsupported opinion or speculation will not qualify).

Question 145

Statements b a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that: (two things)

Answer 145

a. The declarant is a member of the family in question or intimately associated with it; and b. The statements are based on the declarant’s personal knowledge of the facts of her knowledge of family reputation

Question 146

Are statements of a person (now unavailable as a witness) admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability

Answer 146

Yes

Question 147

What 12 exceptions do not require that the declarant be unavailable?

Answer 147

1) excited utterances 2) present sense impressions 3) present state of mind 4) declarations of physical condition 5) records of a regularly conducted activity–business records 6) official records and other official writings 7) ancient documents 8) documents affecting property interests 9) reputation 10) family records 11) market reports 12) statements by child victim of abuse or neglect

Question 148

When does an excited utterance fit the exception to the hearsay rule that does not require the declarant to be unavailable

Answer 148

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (i.e., before the declarant had time to reflect upon it), is admissible

Question 149

When does a present sense impression fit the exception to the hearsay rule that does not require the declarant to be unavailable

Answer 149

A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition. There is little time for a calculated misstatement, and the contemporaneous nature of the statement makes it reliable

Question 150

When does a present state of mind fit the exception to the hearsay rule that does not require the declarant to be unavailable

Answer 150

A statement of the declarant’s then-existing state of mind (e.g., motive, intent, or plan) or emotional, sensory, or physical condition is admissible. It is usually offered to establish a person’s intent or as circumstantial evidence that the intent was carried out. Except as to certain facts concerning the declarant’s will, however, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.

Question 151

What are the two hearsay exceptions involving statements of physical condition?

Answer 151

(i) statements of the declarant’s present physical condition, regardless of the purpose for which the statement is made; and (ii) statements made for the purpose of obtaining medical diagnosis or treatment–this does not have to be the declarant’s own medical diagnosis or treatment (e.g., the declarant may be seeking medical assistance for a family member) Note: if a declarant tells an emergency room physician, “I was stabbed with a kitchen knife; my roommate did it,” only the first portion of the statement is pertinent to diagnosis or treatment

Question 152

When does the records of regularly conducted activity–business records fit the exception to the hearsay rule that does not require the declarant to be unavailable

Answer 152

Any writing or record made as a memorandum of any act or transaction is admissible in evidence as proof of that act or transaction. Note, however, that under the Federal Rules, even an otherwise qualifying business record may be excluded by the court if the opponent makes a showing that the circumstances of the writing indicate a lack of trustworthiness.

Question 153

What is the hearsay rule for a statement by deceased or ill declarant that is similar to statement previously admitted when the declarant is unavailable to testify

Answer 153

In Florida, in an action against the estate or trust of a deceased person or a representative of a mentally incompetent person, when a declarant is unavailable because of death or illness, an oral or written statement made by the declarant is admissible if it involves the same subject matter as a previously admitted statement made by the same declarant.

Question 154

What is the hearsay rule for a statement by an abused elderly or disabled adult when the declarant is unable to testify?

Answer 154

The Florida Evidence Code includes a hearsay exception for the out-of-court statements of elderly or disabled adults describing acts of abuse or neglect, or any violent act committed against them. For the statements to be admissible: (1) there must be corroborative evidence of the abuse or offense, and (2) the declarant must be “unavailable” as a witness. In addition to the traditional grounds for unavailability (e.g., death, infirmity, or lack of memory), the declarant is considered unavailable if participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm (Note that this hearsay exception is unconstitutional in criminal cases)

Question 155

What are the particular rules of when business records may be admissible into evidence without needing the declarant to be available?

Answer 155

To be admissible, it must appear that the record was made in the course of a regularly conducted business activity, and that it was customary to make the type of entry involved. The business record must consist of matters within the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit such matters to the entrant. The entry must be made at or near the time of the transaction. Lastly, the authenticity of the record must be established either by the custodian (i) testifying that the record is a business record, or (ii) certifying in writing that the record is a business record

Question 156

What two things are admissible under the official records and other official writings hearsay exception even when declarant is available to testify?

Answer 156

(i) records setting forth the activities of the office or agency; and (ii) recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases) Note that even though police reports that would not qualify as business records may be admitted under this public records and reports exception, be careful to test the statement of others contained in the report to make sure they are admissible under a hearsay exception; otherwise, those statements will be excluded even if the report is admitted.

Question 157

Is the following allowed under the official records and other official writings exception to the hearsay rule: evidence in the form of testimony or a certification from the custodian of public records (or other qualified person) that she has diligently searched and failed to find a record.

Answer 157

Yes. Note, however, that a criminal defendant has a right to confrontation and may demand the presence of the person who prepared the certification. Thus, in a criminal case, this type of evidence is admissible in the form of a certification only if the prosecution notifies the defense at least 14 days before trial and the defense does not object in writing within seven days of receiving notice (unless the court sets a different timeline)

Question 158

What is the hearsay exception for ancient documents?

Answer 158

The Florida ancient document hearsay exception applies to statements in an authenticated document that is at least 20 years old

Question 159

What is the hearsay exception for documents affecting property interests?

Answer 159

A statement in a document affecting an interest in property (e.g., a deed, will, etc.) is admissible if the statement is relevant to the document’s purpose. However, the exception will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document

Question 160

In what four instances is reputation admissible as an exception to hearsay?

Answer 160

Reputation evidence is admissible under several exceptions to the hearsay rule, as evidence of the following (i) character; (ii) personal or family history; (iii) land boundaries; and (iv) a community’s general history

Question 161

What is the scope of the family records exception to the hearsay rule?

Answer 161

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible

Question 162

What is the scope of the market reports exception to the hearsay rule?

Answer 162

Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.

Question 163

What is the scope of the statements by child victim of abuse or neglect exception to the hearsay rule (including the two conditions)?

Answer 163

Exception is for statements of a victim with a physical, mental, emotional, or developmental age of 16 or less, describing any act of child abuse, neglect, or sexual abuse. Such a statement may be admitted if: (1) the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either testifies or is unavailable as a witness. If the child is unavailable to testify, there must be particularly trustworthy corroborative evidence of the crime. Note: In criminal cases, application of this hearsay exception to a child’s testimonial hearsay statements has been held to violate a defendant’s constitutional right to confront a witness

Question 164

Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) when: (4)

Answer 164

(i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was “testimonial” in nature; and (iv) the accused has no opportunity to cross-examine the declarant’s testimonial statement prior to trial Note, however, that the defendant forfeits his right of confrontation if he committed a wrongful act that was intended to keep the witness from testifying

Question 165

When is a statement made in the course of police interrogation (1) testimonial and (2) not testimonial as it pertains to the Confrontation Clause caveat that a hearsay statement will not be admitted when the statement was “testimonial” in nature (among other requirements)

Answer 165

(1) When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial (e.g., statements to police describing a crime after it has concluded). On the other hand, statements by a young child abuse victim to a school teacher about the abuse are not testimonial because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator. (2) If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are non testimonial (e.g., 911 call during ongoing crime). In determining whether an “ongoing emergency existed at the time of the interrogation, relevant factors include: (i) the nature of the dispute (public v private); (ii) whether the perpetrator is still at large; (iii) the scope of the threat to the victim and to the public; and (iv) the type of weapon involved

Question 166

Are affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct testimonial?

Answer 166

Yes they are testimonial and may not be admitted unless the defendant previously had an opportunity to cross-examine the author of the report

Question 167

What are the 12 common specific rebuttable presumptions

Answer 167

a. Every person is presumed to be legitimate b. when cause of death is in dispute, there is a presumption in civil cases that it was not suicide. c. every person is presumed sane in civil and criminal cases until the contrary is shown. d. if a person is unexplainably absent for a continuous period of seven years and he has not been heard from, he is presumed dead. e. proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent f. every person is presumed chaste and virtuous g. it is presumed that persons acting in an official office are properly performing their duties h. proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature i. a latter, properly addressed, stamped, and mailed, is presumed to have been delivered j. a person is presumed solvent, and every debt is presumed collectible k. proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent l. upon proof of a marriage ceremony, a marriage is presumed valid