FL Distinctions Evidence

Question 1

Evidence of Habit

Answer 1

FL: Evidence of person’s habit to prove a pattern of behavior is admissible to corroborate other evidence that shows the habit occurred at the relevant time, but is not admissible as direct evidence.<br></br>MS: Evidence of habit of a person is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit.

Question 2

Means of Proving Character

Answer 2

FL: Character cannot be proved by opinion testimony.<br></br>MS: Witnesses who know the person may testify regarding their opinions about the person’s character.

Question 3

<p>How Defendant Proves Character</p>

Answer 3

<p>FL: Florida restricts the defendant's witness to reputation evidence to prove the defendant's character.<br></br><br></br>MS: The witness may also give his personal opinion concerning that trait of the defendant. However, the witness may not testify to specific acts of conduct of the defendant to prove the trait in issue.</p>

Question 4

How Prosecution Rebuts Defendant’s Character Evidence

Answer 4

FL: Witnesses may testify to the defendant’s bad reputation, but they may not give their own opinion of the defendant’s character.<br></br>MS: The prosecution may rebut the defendant’s character evidence by calling qualified witnesses to testify to the defendant’s bad reputation or their opinion of the defendant’s character for the particular trait involved.

Question 5

Victim in a Criminal Case, Defendant’s Initiative

Answer 5

FL: Victim’s character cannot be proved by opinion testimony.<br></br>MS: Defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence. However, by specific exception, this rule does not extend to showing the bad character of rape victi<br></br>MS.

Question 6

Specific Acts of Misconduct Admissible If Independently Relevant

Answer 6

FL: Prosecution must give 10 days’ notice of intent to use other crimes or acts evidence.<br></br>MS: 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. Upon request by the accused, the prosecution in a criminal case must provide reasonable notice prior to trial of the general nature of any of this type of evidence the prosecution intends to introduce at trial.

Question 7

Specific Acts of Misconduct Admissible If Independently Relevant, Quantum of Proof

Answer 7

FL: To be admissible, similar acts must be strikingly similar and share some unique characteristic or combination of characteristics that set them apart.<br></br>MS: Independently relevant uncharged misconduct by the defendant will be admissible as long as (i) there is sufficient evidence to support jury finding that the defendant committed the prior act, and (ii) its probative value on the issue of motive, intent, identity, or other independently relevant proposition is not substantially outweighed by the danger of unfair prejudice.

Question 8

Prior Acts of Sexual Assault or Child Molestation (FL)

Answer 8

FL: In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs or acts of child molestation is admissible, and may be considered for its bearing on any matter where relevant. In a criminal case in which the defendant is charged with a sexual offense, evidence of the defendant’s commission of other crimes, wrongs, or acts involving a sexual offense is admissible and may be considered for its bearing on any matter to which it is relevant.

Question 9

Prior Acts of Sexual Assault or Child Molestation (<br></br>MS)

Answer 9

<br></br>MS: Evidence of a defendant’s prior acts of sexual assault or child molestation is admissible in a civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation. The party who intends to offer this evidence must disclose the evidence to the defendant 15 days before trial (or later with good cause).

Question 10

Facts Appropriate for Judicial Notice

Answer 10

FL: Courts may, upon being furnished sufficient information, take judicial notice of any matter appropriate when a party requests it and provides each adverse party timely written notice of the request.<br></br>MS: Judicial notice may be taken of matter appropriate at any time, whether or not requested, and such notice is mandatory if party requests and supplies court with necessary information.

Question 11

Conclusiveness of Judicial Notice

Answer 11

FL: Court has discretion to determine whether judicial notice of a fact is conclusive.<br></br>MS: Judicially noticed fact is conclusive in a civil case but not in a criminal case. In criminal case, jury instructed that it may, but is not required to, accept as conclusive any fact judicially noted.

Question 12

Competency of Witnesses ‘ Dead Man Acts

Answer 12

FL: The Florida Dead Man Statute was repealed in 2005.<br></br>MS: Although there is no Dead Man Act in the Federal Rules of Evidence, state Dead Man Acts operate to disqualify witnesses in federal cases where state law provides the rule of decision. Dead Man Acts generally provide that a party or person interested in the event, or his predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successors in interest of the deceased.

Question 13

Opinion Testimony by Lay Witnesses

Answer 13

FL: Lay opinion admissible when: (i) 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; (ii) testimony will not mislead the trier of fact, and (iii) opinions do not require special knowledge or training.<br></br>MS: Opinion testimony by lay witnesses admissible when: (i) it is rationally based on perception of the witness, (ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue, and (iii) it is not based on scientific, technical, or other specialized knowledge.

Question 14

Opinion Testimony by Expert Witness, Subject Matter Must be Appropriate for Expert

Answer 14

FL: To admit expert opinion testimony of new scientific principle, judge must determine whether: (i) expert testimony will assist jury in understanding evidence; (ii) expert testimony is based on scientific principle or discovery that is sufficiently established to have gained general acceptance in the particular field (Frye test); and (iii) expert is qualified to present opinion evidence on the subject.<br></br>MS: Expert opinion testimony must be relevant, and methodology underlying the opining must be reliable ‘ based on sufficient data, product of reliable principles and methods; expert has reliably applied principles and methods to facts.

Question 15

Authoritative Texts and Treatises

Answer 15

FL: 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. The publication cannot be used to bolster the expert’s credibility.<br></br>MS: An expert may be cross-examined concerning statements contained in any scientific publication, as long as it is established as reliable authority. Statements from an established treatise may be read into the record as substantive evidence, and may even be introduced on direct examination of a party’s own expert.

Question 16

Prior Inconsistent Statements ‘ Laying the Foundation (FL)

Answer 16

FL: Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is given an opportunity to question the witness on it, or the interest of justice otherwise requires. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of the statement is admissible. A prior statement that is written must be shown to the witness who wrote it before he can be examined about it.

Question 17

Prior Inconsistent Statements ‘ Laying the Foundation (<br></br>MS)

Answer 17

Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is, at some point, given an opportunity to explain or deny the allegedly inconsistent statement.

Question 18

Use of a Conviction to Impeach (FL)

Answer 18

FL: To be used for impeachment, conviction must be for felony or misdemeanor involving dishonesty or false statement; Florida Code does not requires trial court to balance probative value of felony conviction not involving dishonesty or false statement against unfair prejudice. A party cannot ask about the specifics of the conviction unless the defendant or witness is untruthful about whether he has such prior convictions and how many of them there are.

Question 19

Use of a Conviction to Impeach (<br></br>MS)

Answer 19

<br></br>MS: Witness’s character for truthfulness may be attacked by any crime if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. A witness’s character for truthfulness may also be attack by any felony whether or not it involves dishonesty or a false statement.

Question 20

Remoteness of Conviction

Answer 20

FL: No definite time period by which to judge remoteness of conviction. <br></br>MS: Conviction is usually too remote and inadmissible if more than 10 years have elapsed since date of conviction or date of release from confinement, whichever is later.

Question 21

Prior Specific Acts of Misconduct

Answer 21

-Witness may not be asked about prior specific acts of misconduct for which he was not convicted. Character may not be proved by opinion testimony. -Witness may be interrogated on cross-examination with respect to any immoral, vicious, or criminal act that may affect his character and show him unworthy of belief; specific act of misconduct offered to attack character of witness for truthfulness can be elicited only on cross-examination.

Question 22

Impeachment by Reputation Evidence

Answer 22

FL: Character my not be proved by opinion testimony.<br></br>MS: A witness may be impeached by showing she has a poor reputation for truthfulness, usually by asking other witnesses about her general reputation for truth and veracity in the community. The Federal Rules allow an impeaching witness to state her personal opinions as to the truthfulness of the witness sought to be impeached.

Question 23

Rehabilitation of an Impeached Witness

Answer 23

FL: An impeached witness may call other witnesses to testify to his good reputation for truthfulness, but he may not call other witnesses to give their opinions as to his truthfulness.<br></br>MS: When the witness’s general character for truthfulness and veracity has been attacked, the party for whom the impeached witness has testified may call other witnesses to testify to the good reputation for truthfulness of the impeached witness or to give their opinion as to the truthfulness of the impeached witness.

Question 24

Specificity of Objections

Answer 24

FL: Florida law requires that the specific ground for the objection be given it is not apparent from the context of the questioning.<br></br>MS: An objection may be either general or specific. If a general objection is overruled and the evidence admitted, the objection is not available on appeal unless the evidence was not admissible under any circu<br></br>MStances for any purpose.

Question 25

Physician-Patient Privilege

Answer 25

FL: Florida Evidence Code does not recognize a separate physician-patient privilege, but a statute does recognize confidentiality of such information outside judicial proceedings.<br></br>MS: Physician-patient privilege is a statutory privilege, which has not been adopted in all jurisdictions.

Question 26

Psychotherapist-Patient Privilege

Answer 26

FL: Florida does recognize a psychotherapist-patient privilege 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).

Question 27

Husband-Wife Privilege

Answer 27

FL: Florida recognizes privilege for confidential communications between spouses during the course of a valid marriage, but does not recognize doctrine of spousal immunity.<br></br>MS: Where privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution and the married person may not be compelled to testify against his spouse in any criminal proceeding.

Question 28

Professional Journalist Privilege

Answer 28

FL: Professional journalists have a qualified privilege not to divulge information or identity of sources obtained while actively gathering news (privilege does not apply to physical evidence, eyewitness observations, or visual or audio recordings of crimes). Party may overcome privilege by showing: (i) information is relevant and material to unresolved issues, (ii) information cannot be obtained from alternative sources, and (iii) compelling state interest exists requiring disclosure. <br></br>MS: The Supreme Court has held there is no constitutional protection for journalist source information, so the existence of the privilege is limited to the individual state statutes.

Question 29

Prior Statement of Identification

Answer 29

FL: A victim’s description of her assailant to a third party is not an identification of a person after perceiving him, and thus it will not be admissible at trial by the third party as a nonhearsay prior statement of identification. However, the victim’s description of her assailant to a third party may be testified to at trial by the third party and admitted for its truth if it fall under a hearsay exception.<br></br>MS: A witness’s prior statement identifying a person after perceiving him is not hearsay.

Question 30

Admissions by a Party-Opponent

Answer 30

FL: Admissions are treated as an exception to the hearsay rule rather than as nonhearsay.<br></br>MS: An admission by a party-opponent is not hearsay.

Question 31

Vicarious Admissions ‘ Co-Conspirators

Answer 31

FL: 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.<br></br>MS: The Supreme Court has held that admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.