FL Evidence Flashcards
Preliminary Questions
Evidence
- The court shall determine preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, and the admissibility of evidence.
- Hearings on the admissibility of confessions and preliminary matters are conducted out of the hearing oof the jury.
Summing Up and Comments by the Judge
Evidence
(Same in criminal and civil trials)
A judge may not sum up the evidence or comment to the jury about:
- The weight of the evidence
- A witness’s credibility, or
- The guilt oof the accused.
Limited Admissibility
Evidence
When evidence is admissible as to one party or for one purpose, but inadmissible as to another party/another purpose, and is admitted, the court shall upon request:
- Restrict such evidence to its proper scope, and
- Inform the jury as to such at the time the evidence is admitted.
Introduction of Related Writings or Recorded Statements
Evidence
- When a writing/recorded statement or part thereof is introduced by a party, the adverse party may require the introduction of any other part or any other writing or statement that in fairness ought to be considered contemporaneously.
- Court reporter reports or transcripts of testimony and proceedings in the case are considered prima facie correct statements of such testimony/proceedings.
Matters That Must Be Judicially Noticed
Evidence
Court must take judicial notice of:
- FL / US Constitutional decisions and statutes/laws
- FL and US court rules
Matters that MAY be Judicially Noticed
Evidence
A court must** take judicial notice of any matter below when a party requests it **AND:
- Gives timely notice of the request to adverse parties, proof of which is filed with the court, and
- Gives the court sufficient info to enable it t take judicial notice of the matter.
(Not all are included in this list)
- Facts that are not subject to dispute because they are g_enerally known within the territorial jurisdiction of the court_.
- Facts that are not subject to dispute because they are c_apable of accurate and ready determination through sources whose accuracy cannot be questioned_.
- Laws of other US states
- Laws of foreign nations / organizations of nations
- Official actions of the legislative, executive, and judicial depts. of the US and of any US state
- Provisions of all FL municipal / county charters
- Enacted ordinances and resolutions of FL municipalities and counties
Judicial Notice of Web Mapping / GPS
(New Rule Effective 7/2022)
Evidence
- Court MAY take judicial notice of an image, map, location, distance, calculation, or other info taken from a web mapping service site.
- It MUST it indicates the date which the info was created.
- Party intending to offer it at trial or a hearing MUST file a notice of intent within a reasonable time. Adverse party may object.
- Civil Cases: Rebuttable presumption that info under this section should be judicially notice. May be overcome if the court finds by the greater weight of the evidence that the information does not fairly and accurately portray what it purports to.
- Criminal Cases: The court MUST instruct the jury that it may or may not accept the noticed facts as conclusive.
Instructing the Jury of Judicial Notice
Evidence
- Reflects the federal rule that in a civil action, the court must instruct the jury to accept as conclusive fact any fact judicially noticed.
- But in a CRIMINAL trial, the court MUST instruct the jury that it MAY, but it not required to, accept a judicially noticed fact as conclusive.
Relevancy (Defined)
Evidence
Evidence tending to prove or disprove a material fact.
Relevant evidence is inadmissible if its probative value is significantly outweighed by the risk of:
- Misleading the jury
- Unfair prejudice
- Confusion of issue
- Needless presentation of cumulative evidence.
NOTE: Federal rules add a 5th one: Undue delay and wasting time.
Benevolent Gestures
(Civil Action)
Evidence
- Statements expressing sympathy to a person involved in an accident or his/her family is inadmissible in a civil action.
- Statements of fault are admissible.
Character Evidence
(General)
Evidence
Evidence of a person’s character or a trait is generally inadmissible to prove he or he acted in conformity with that trait.
Exceptions: (See next cards)
- Character of the accused
- Character of the victim
- Character of a witness
Character Evidence Exceptions:
Character of the Accused
Evidence
Evidence of a pertinent character trait offered by an accused is admissible, or by the prosecution to rebut the trait.
Character Evidence Exceptions:
Character of Victim
Evidence
The following character evidence is admissible:
- Evidence of a pertinent trait or character of the victim of a crime offered by the accused, or by the prosecution to rebut the trait; or
- Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.
MIMIC “Exception” to Character Evidence
Evidence
Allows evidence of other prior crimes or misconduct in.
NOTE: Evidence is NOT being allowed in to show propensity (IT IS NOT CHARACTER EVIDENCE per se). Evidence is inadmissible to show propensity, but admissible to show:
- Motive
- Intent
- Absence of Mistake
- Identity
- Common scheme or plan
(NOTE: PIMP OKIA is my mnemonic):
Plan
Intent
Motive
Preparation
Opportunity
Knowledge
Identity
Absence of Mistake
Character Evidence Exceptions:
Crimes Against Children and Other Sexual Offenses
Evidence
- In criminal cases where D is charged with child molestation, evidence of D’s other acts of child molestation are admissible.
- In criminal cases where D is charged with a sexual offense, evidence of other crimes or acts involving a sexual offense are admissible.
Methods of Proving Character (When Admissible)
Evidence
Florida only allows you to prove character evidence through REPUTATION testimony or SPECIFIC INSTANCES testimony. NO OPINION like the fed rules.
- Reputation: Proof may be made through TESTIMONY.
- Specific Instances: When character for trait is an ESSENTIAL ELEMENT of a crime or defense, it may be proved through SPECIFIC INSTANCES of that person’s character.
Routine Practice (Organizations)
Evidence
NOTE: FLORIDA DOES NOT ALLOW ROUTINE / HABIT TO BE APPLIED TO INDIVIDUALS. Only organizations. May still be admissible under relevancy though.
Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove the organization acted in conformity with the routine practice.
Subsequent Remedial Measures
Evidence
- Evidence of measures taken after an injury that would have made the injury less likely to occur = not admissible to prove negligence.
- IS ADMISSIBLE to show ownership or control, or the feasibility of preventative measures.
Offers to Compromise
Evidence
Offers to compromise as well as any relevant conduct or statements made in negotiations to compromise = NOT ADMISSIBLE to show liability or lack thereof
Payment of Medical Expenses
Evidence
Evidence of payments of medical expenses or offers to pay medical expenses = NOT ADMISSIBLE to show liability.
Admissibility of Prior Sexual Conduct
- Specific instances of prior consensual sexual activity between the victim and any person other than the defendant is not admissible in a sexual battery case.
- Reputation evidence is also NOT ADMISSIBLE.
- HOWEVER, past consensual sex with the defendant is ADMISSIBLE.
- ALSO, however, specific acts may be admissible if established to the court in an in camera proceeding that such evidence:
- May prove that defendant was not the source of semen, pregnancy, injury, or disease; or
- When consent by the victim is at issue, tends to establish a pattern of conduct or behavior by victim which is so similar to the current conduct or behavior relevant to the issue of consent.
Paternity Determination in Certain Criminal Cases
In FL, if a person under 18 gives birth to a child and paternity is established, such evidence of paternity is admissible in criminal cases for sexual battery, unlawful sexual activity with a minor, or lewd and lascivious offense committed on or in the presence of persons aged 16 or less.
Offers to Plea Guilty / Nolo Condere; Withdrawn Guilty Pleas
Evidence
- Evidence of a withdrawn guilty plea / plea of solo contendere or an offer to pole guilty to a crime = NOT ADMISSIBLE in any civil or criminal proceeding.
- Evidence of statements made in connection with any of the pleas or offers = NOT ADMISSIBLE.
Journalist Privilege
Evidence
A professional journalist has a qualified privilege to not be a witness and not to disclose information, including the identity of any sources that the journalist obtained while actively gathering news.
- Applies only to info or eyewitness observations obtained within the normal scope of employment
- DOES NOT APPLY to physical evidence or eyewitness observations, or visual/audio recordings off crimes.
- Privileged is not waived by a journalist by publishing information.
A party seeking to overcome this privilege must show:
- The info is relevant and material to unresolved issues raised in the proceeding,
- The info cannot be obtained from other sources, and
- A compelling interest exists for requiring disclosure of the info.
Lawyer-Client Privilege
Evidence
- “Client” = anyone who consults with a lawyer for the purpose of obtaining legal services
- A communication between client-lawyer is confidential if not intended to be disclosed to any third person other than lawyer’s employees.
- Client has the privilege to refuse to disclose and prevent others from disclosing the contents of confidential communications.
- Privilege may be claimed by the client, client’s guardian, client’s representative of deceased client, representative of client corporation., and attorney on behalf fo the client.
Privilege does NOT APPLY to:
- Services sought to aid or enable someone to commit what client knew was a crime;
- A communication relevant to an issue between parties who claim through the same deceased client;
- A communication relevant to an issue of breach of duty by lawyer to client;
- A communication relevant to a matter of common interest between two or more clients, if the communication was made by either to a lawyer retained by both, in a civil matter between the clients.
Exceptions of Lawyer-Client Privilege
- Services sought to enable or aid someone to commit what client knew was a crime or fraud
- Communication is relevant to an issue between two parties who claim through the same dead client (ex. a will contest)
- 2 clients, same lawyer now going against each other in court
- Breach of duty issue between lawyer and client.
- Communication is relevant to an issue concerning the intention or competent of a client executing a document to which lawyer was a witness
Physicial-Patient “Privilege”
THERE ISN’T ONE. Under FL or Fed rules.
- By statute, medical records and medical condition of patient cannot be discussed with any person other than patient or other health care providers.
- Such records can however be furnished via subpoena and by notice given to patient and patient’s lawyer in a civil proceeding.
Psychotherapist-Patient Privilege
Evidence
- Must be licensed or authorized to practice. Applies to clinical social workers, family therapists and nurses, who practice mental/emotional treatment as well.
- Applies to those seeking treatment for alcohol/drug addition.
- Patient has the privilege to refuse to disclose and prevent others from disclosing communications made for the purpose of diagnosis/treatment of patient’s mental or emotional condition.
Privilege does NOT APPLY to:
- Communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist has reasonable cause to believe patient is in need of hospitalization;
- Communications made in the course of a court-ordered exam of the patient’s emotional or mental condition;
- Communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense.
Sexual Assault Counselor-Victim Privilege
Evidence
- Applies to sexual assault counselors and trained volunteers (with 30 hours of completed training)
- Same as attorney/client and psychotherapist/patient privilege.
- Victim has privilege to refuse to disclose and prevent others from disclosing any communication or record made to a sexual assault counselor or trained volunteer made in the course of advising or assisting the victim.
Domestic Violence Advocate-Victim Privilege
Evidence
Same as Sexual Assault Counselor/Victim privilege.
Human Trafficking Advocate-Victim Privilege
Evidence
- Same as Sexual Assault Advocate-Victim and Domestic Violence-Victim Privileges.
- Only difference: A Human trafficking advocate or trained volunteer must have completed 24 hours of training with the Office fo the Attorney General etc.
- Within three years of completing training, must have completed a 8-hour update course.
Husband-Wife Privilege
Evidence
- Can be claimed by either spouse
- Can refuse to disclose any communications made during the course of the marriage.
Does NOT APPLY to:
- Proceedings where one spouse brought an action on the other spouse;
- Criminal proceedings where one spouse is charged with committing a crime against the other spouse or his/her property, or the child of either spouse;
- In a criminal proceeding where the communication is offered by the defendant-spouse.
Clergy Privilege
Evidence
- Applies to communications made for the purpose of spiritual advisement.
Accountant-Client Privilege
Evidence
A client has a privilege to refuse to disclose, and to prevent any others from disclosing communications made between an accountant made in the course of providing accounting services to the client.
Trade Secret Privilege
Evidence
- A person has the privilege to refuse to disclose trade secrets.
- Can be claimed by person owning the trade secret or their employee/agent.
- Court shall take protective measures.
Accident Report Privilege
- In FL, a person involved in an accident must file an accident report unless an investigating officer makes a written report.
- This report and any statements made by the person involved in the crash for the purpose of making the report may NOT be used as evidence in a civil or criminal trial.
- HOWEVER, officer may testify at a CRIMINAL trial as to statements made to the officer if doing so does not violate 5th amendment right against incrimination.
Waiver of Privileges Through Disclosure
Evidence
Can be waived through voluntary disclosure or consent to disclosure.
Witness Competency
Evidence
- General: Every witness is competent to be a witness.
- Children are able to testify as long as they understand duty to tell the truth. NOTE: Court’s discretion - children can go without being sworn in as long as aware of duty to not lie.
- Judges not competent to testify in trial they are presiding. Rule 90.607.
- Jurors not competent to testify in trial they are sitting. Rule 90.607.
- Witnesses are disqualified if:
- Incapable to expressing himself in a manner to be understood (i.e. interpreters used for non-english speaking witnesses)
- Incapable of understanding duty to tell the truth (won’t swear in)
Rule 90.601 and 90.603
Methods of Impeachment
Any party may impeach a witness (including their own witness) by showing:
- Statements by witness inconsistent with current testimony
- Showing witness is biased
- Attacking character of witness
- Showing a defect in capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness is testifying
- Proof by other witness that material facts are not as testified to by the witness being impeached.
NOTE: ONLY REPUTATION TESTIMONY ALLOWED! No opinion.
Impeaching Witness Using Character Evidence
(MEMORIZE - YOU ALWAYS GET CONFUSED)
Evidence
- Form: Reputation evidence only! NO SPECIFIC INSTANCES
- Evidence may only refer to character for truthfulness
- Evidence of truthful character is only admissible after character of witness for truthfulness is attacked first.
Impeaching Witness Through Conviction of Crimes
(MEMORIZE - ALWAYS GET CONFUSED!)
Evidence
- Must be crime punishable by: death OR over 1 year imprisonment OR crime involving dishonesty.
- Cannot impeach using evidence of juvenile adjudications.
Refreshing Memory of Witness
Evidence
Adverse party is entitled to inspect and cross examine witness on writings used to refresh that witness’s memory.
Exclusion of Witnesses in the Courtroom
Evidence
- At the request of a party, the court may order a witness to be excluded from the courtroom as to not hear the testimony of other witness.
- Exceptions:
- Witness is a party to the action;
- Person designated by the attorney as one who’s presence is essential to the presentation of the party’s case; or
- The victim of the crime/victim’s parent or guardian/representative unless, by motion, court determines that that witness’s presence is prejudicial.
Testimony of Experts
Evidence
- Qualifications as Expert: Specialized knowledge, skill, education, or training.
- Can testify on expert opinion so long as:
- Testimony is based on sufficient facts or data
- Testimony is the product of reliable principles and methods
- Expert has applied those principles and methods to the facts of the case.
- On cross, party may use periodicals, treatises, and other writings if expert recognizes the author or those periodicals etc., OR, if expert does NOT recognize, court may still allow if found authoritative and relevant to subject matter. (Remember APlusBooks question #8, Set # 2.) Rule 90.706.
HEARSAY! and Non-Hearsay: Definition
Evidence
- = An out-of-court statement offered to prove the truth of the matter asserted.
- “Statement” = an oral or written assertion, or nonverbal conduct if meant to be an assertion.
- NOT HEARSAY:
- Prior Inconsistent statements made under oath (depositions count!)
- Prior Consistent Statements
- Identification made by witness
Hearsay Exceptions - Declarant Unavailability Doesn’t Matter
Evidence
- Admissions
- Excited Utterance
- Family Records
- Former Testimony
- Public Records (or absence thereof)
- Recorded Recollection
- Records of Regularly Recorded Business Activity (or absence thereof)
- Reputation as to Character
- Present Sense Impression
- Statement of Child Victim
- Statement of Elderly/Disabled Adult
- Statement for the Purpose of Medical Diagnosis/Treatment
- Then-Existing Mental, Emotional or Physical Condition
Hearsay Exceptions: (1) Admissions (Statements of Opposing Party)
- Statement offered against a party
- Party’s own statement OR statement by person party authorized to make concerning subject (agent or employee made within the scope of employment) OR statement made by party’s co-conspirator during the course of and in furtherance of conspiracy.
- Party believed it as true
Hearsay Exceptions: (2) Excited Utterance
- Excited statement relating to a startling event
- Made while declarant under the stress of excitement caused by the event
Hearsay Exceptions: (3) Family Records
- Former testimony given by declarant
- Given as testimony in a previous sworn proceeding
- Adverse party had opportunity and similar motive to direct or cross-examine witness.
Hearsay Exceptions: (4) Former Testimony
- Former testimony given by declarant
- Given as testimony in a previous sworn proceeding
- Adverse party had opportunity and similar motive to direct or cross-examine witness.
Hearsay Exceptions: (5) Public Records (or lack thereof)
- Public offices or agencies
- In criminal cases - does NOT apply to police reports
Hearsay Exceptions: (6) Recorded Recollection
- Statement in the record that the witness once had knowledge of
- Now has insufficient recollection to enable him/her to testify fully and accurately
- Shown to have been made while fresh in witness’s memory AND reflects it accurately;
- NOTE: Party may read it into evidence to refresh the recollection of witness, BUT CANNOT BE ADMITTED AS AN EXHIBIT UNLESS OFFERED BY ADVERSE PARTY.
Hearsay Exceptions: (7) Records of Regularly Recorded Business Activity (or absence thereof)
- Made at or near time by a person with knowledge
- Kept in the course of a regularly conducted business activity
- Regular practice of the business to make such records
- Shown by the testimony of the custodian or other qualified witness OR shown by a certification
- NOTE: Party intending to offer evidence by means of certificate or declaration (no testimony of custodian) MUST provide written notice at the arraignment in criminal cases, or 60 days before trial in civil cases.
Hearsay Exceptions: (8) Reputation as to Character
- Evidence of a person’s reputation among the community
Hearsay Exceptions: (9) Present Sense Expression
- Spontaneous statement describing or explaining an event
- Made while declarant is actively perceiving OR immediately after
Hearsay Exceptions: (10) Statement of Child Victim
- > 16 years old
- Admissible in any civil or criminal proceeding
- Statement of neglect, child abuse, or sexual abuse
- Hearing is required to determine safeguards of reliability of statement
- Child must either testify or, if unavailable, there must be other reliable corroborative evidence.
- NOTE: In criminal actions, defendant must be notified NO LATER THAN 10 DAYS BEFORE TRIAL that statement will be offered. Notice must include a written statement of the content of the child’s statement, when it was made and the circumstances surrounding it.
Hearsay Exceptions: (11) Statement of Elderly or Disabled Adult
- Admissible in any civil or criminal proceedings
- Statement describing abuse or neglect, any act of exploitation, battery or assault, sexual battery, or any other violent act.
Hearsay Exceptions: (12) Statements for Purpose of Medical Diagnosis/Treatment
- Applies to medical history, past or present symptoms, pain, or the cause/source thereof
- Can be made by person OR made by person who has knowledge of the facts and is legally responsible for the person unable to communicate the facts.
Hearsay Exceptions: (13) Then-Existing Mental, Emotional or Physical State
- Statement of declarant’s state of mind, condition, or physical sensation
- Includes a statement of intent, plan, motive, design, mental feeling, pain, or bodily health.
- Statement admissible ONLY to prove declarant’s state of mind, emotion, or physical sensation.
- Statement also admissible to prove or explain acts of subsequent conduct of the declarant.
- Ex. A witness testifies that just before Jack jumped out the window, he stated, “I am so sick of life and am going to kill myself.” If offered to show WHY Jack jumped, it is admissible.
Other Hearsay Exceptions
- Marriage and Baptism Records: Must be certified and issued at time or soon after.
- Records of Religious Organizations: Statements of births, marriages, divorces, deaths, parentage, ancestry, or other facts of personal or family history contained in a regularly kept record of a religious org.
- Records of Vital Statistics
- Statements in Ancient Documents (20 years or older): Authenticity must be established.
- Records/ Statements in Documents Affecting an Interest in Property
Hearsay Exceptions: Declarant MUST be Unavailable
(MEMORIZE)
- “Unavailable” = exempt from testifying due to privilege; refuses to testify after court order; lack of memory; unable to bring witness in after reasonable means taken to do so.
- Declarant is NOT “unavailable” if caused by wrongdoing of a party to prevent testimony.
“STD HW”
- Statement Against Interest
- (Former) Testimony of Unavailable Witness
- Statement Under Belief of Impending Death (“Dying Declaration”)
- Statement of Personal or Family History
- Statement Offered Against Party That Wrongfully Caused Declarant’s Unavailability
Hearsay - Attacking Credibility of Declarant
- When hearsay is admitted under an exception, a party may attack the credibility of declarant using evidence of statements or conduct in any way inconsistent with the declarant’s hearsay statement.
- Admissible regardless of whether declarant has had opportunity to deny or explain it.
Rule 90.806
Self-Authenticating Documents
(Not exhaustive)
- Government-issued books, pamphlets, or other publications
- Printed newspapers and periodicals
- Inscriptions, signs, tags, or labels affixed in the course of business and indicating control, ownership, or origin.
Photos of Stolen Property
Evidence
- Photos of stolen property may be introduced as evidence of property and admissible to the same extent as if the property were introduced as evidence.
- Photo must include:
- Written description of property
- Name of property’s owner
- Location it was stolen from
- Name of investigating officer
- Signature of photographer
Certified Copies of Prior Convictions
Unlike the fed rules which allow evidence of a final judgment to be admissible as non-hearsay, the FL code DOES NOT and will be considered hearsay
Summaries
- When not convenient to produce voluminous evidence in court, a party may present them in a form of a chart or summary.
- Party presenting it must give timely written notice of this intention and must make the summary and originals available for examination or copying.
Duplicates
Admissible to the same extent as the original UNLESS:
- There exists a genuine question of the authenticity of the original document; or
- The writing is a negotiable instrument, a security, etc.
