FL Evidence

Question 1

Routine Practice

Answer 1

is admissible to prove the conduct of an organization, whether corroborated or not and regardless of an eyewitness.
Habit of a person is admissible if corroborated.

Question 2

statement or benevolent gesture expressing sympathy

Answer 2

for a person involved in an accident made to that person or their family is inadmissible in a civil case, but statement of fault shall be admissible. “I want to pay the hospital costs” is inadmissible.

Question 3

Character evidence

Answer 3

is not admissible to prove action in conformity with it on a particular occasion except:
Pertinent character of the accused, if first offered by the accused, (opening the door) or by prosecution to rebut the trait; pertinent character of VICTIM if offered by the accused.

example: peaceful character trait of victim by prosecution in a homicide case to rebut evidence that Victim was the aggressor.

Question 4

subsequent remedial measures

Answer 4

are not admissible to prove negligence, a product defect, or a culpable conduct in connection with the event. may prove other mattes, such as ownership, control, or feasibility of precautionary measures, if controverted, or if for impeachment.

Question 5

Opinion Testimony by Laywitnesses

Answer 5

FL adopts a more restrictive view of the admissibility of opinions by lay witnesses. Lay opinions are admissible when:

(i) 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.
(ii) the testimony will not mislead the trier of fact
(iii) the opinions do not require special knowledge or training

Question 6

authoritative texts and treatises

Answer 6

in FL, authoritative publications can only be used during cross examination of an expert.

excerpts from the pubication may not be read into the record as substantive evidence. Moreover, the publication cannot be used to bolster the expert’s credibility

Question 7

psychotherapist/social worker client privilege

Answer 7

FL also recognizes 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 or other addiction.)

Question 8

privileges related to marriage

Answer 8

FL recognizes the privilege for confidential communications made between spouses during the course of a valid marriage. it does NOT recognize spousal immunity

Question 9

Clergy- pentinent privilege

Answer 9

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.

Question 10

Who may invoke clergy privilege:

Answer 10

the person, the guardian or convservator of a person, the peronal representative of a deceased person, or a member of the clergy.

Question 11

hearsay exceptions

Answer 11

1) spontaneous statement
2) excited utterance
3) statement made for medical treatment or diagnosis
4) business records
5) family records eg Bible
6) former testimony

Question 12

hearsay exceptions when declarant unavailable

Answer 12

1) former testimony
2) statement under belief of impending death
3) statement against interest
4) statement of person or family history

Question 13

dying declarations- statements under belief of impending death

Answer 13

are admissible in all civil and criminal cases

Question 14

Judicial Power to comment upon evidence

Answer 14

judge is prohibited from summing up the evidence or commenting to the jury on its weight or the credibility of the witnesses.

Question 15

CHARACTER EVIDENCE, Sexual Assault Victim’s Past Behavior

Answer 15

The Florida statute applies to criminal prosecutions for sexual battery, lewd or lascivious offenses committed upon or in the presence of a child, and human trafficking (it does not apply in civil cases).
It prohibits reputation evidence relating to a victim’s prior sexual conduct and any evidence presented to show that the victim’s manner of dress incited the offense.

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

Question 16

CHARACTER EVIDENCE, Specific Acts of Misconduct Admissible If Independently Relevant, Notice to Accused

Answer 16

In Florida, the prosecution must give 10 days’ notice of intent to use other-acts evidence.

Question 17

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

Answer 17

Florida courts have held that similar acts must be strikingly similar and share some unique characteristic or combination of characteristics that set them apart. (FLORIDA)

FEDERAL:
A person’s similar acts may be admissible to prove identity (for example, to show that the defen- dant acted in accordance with their modus operandi from other crimes).

Question 18

CHARACTER EVIDENCE, Prior Acts of Sexual Assault or Child Molestation

Answer 18

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. There is a 10-day notice period for this evidence.

Question 19

judicial notice to be mandatory:

Answer 19

for judicial notice to be mandatory, Florida additionally requires that the requesting party: (1) provide each adverse party with timely written notice of the request; and (2) file proof of such notice with the court.

Question 20

COMPETENCY OF WITNESSES, Use of Hypnosis

Answer 20

In Florida, the fact that a wit- ness has undergone hypnosis does not render the witness incompetent to testify to a fact recalled prior to hypnosis if the fact was properly recorded (for example, reduced to writing or recorded by audio or video).
However, the Florida Supreme Court has held that hypnoti- cally refreshed testimony (meaning, 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. Exception: The hypnotically refreshed testimony of a criminal defendant might be admis- sible, 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 21

IMPEACHMENT, Criminal Convictions, Court’s Discretion to Exclude Conviction

Answer 21

In Florida, as under the Federal Rules, a witness may be impeached with (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.

Question 22

IMPEACHMENT, Criminal Convictions, Actual Conviction Required

Answer 22

Florida courts have specifically held that a defendant- witness or any 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 23

IMPEACHMENT, Criminal Convictions, Means of Proving Conviction

Answer 23

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

Question 24

IMPEACHMENT, Criminal Convictions, Juvenile Adjudications

Answer 24

In Florida, juvenile offenses are always inadmissible for impeachment purposes.

Question 25

IMPEACHMENT, Criminal Convictions, Effect of Pardon

Answer 25

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.

Under the Federal Rules, a prior conviction may not be introduced to impeach a witness if the pardon was based on innocence or if the person pardoned has not been convicted of a subsequent felony.

Question 26

IMPEACHMENT, Specific Instances of Misconduct—Bad Acts

Answer 26

Florida does not recognize this method of impeachment. A witness may not be asked about prior specific acts of misconduct for which he was not convicted.

Question 27

Big Character Rule for Florida

Answer 27

in Florida, character may not be proved by opinion testimony. Thus, a witness may be impeached with reputation testimony but not with opinion testimony.

Question 28

TESTIMONIAL PRIVILEGES, Nonapplicability of Attorney-Client Privilege

Answer 28

statements between public officials and their attorneys at public agency meetings are not protected.

Question 29

TESTIMONIAL PRIVILEGES, Physician- Patient Privilege

Answer 29

The Florida Evidence Code does not recognize a separate physician-patient privi-
lege. 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 authoriza- tion except in certain limited circumstances. However, there is no true evidentiary privilege because the statute does not apply when the patient records are compelled by subpoena from a court after proper notice to the patient or the patient’s legal representative by the party seeking such records.

Question 30

TESTIMONIAL PRIVILEGES, Accountant-Client Privilege

Answer 30

Florida recognizes an accoun- tant-client privilege, which protects information and communications a certified public accountant or a licensed public accountant obtains from a client in the rendition of accounting services to the client.

Question 31

TESTIMONIAL PRIVILEGES, Professional Journalist Privilege

Answer 31

In Florida, 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, eyewit- ness 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 alter- native sources; and (3) that a compelling state interest exists requiring disclosure.

Question 32

HEARSAY, Residual Catch-All Exception

Answer 32

Florida does not recognize a catch-all exception.

Question 33

HEARSAY EXCEPTIONS— DECLARANT UNAVAILABILITY IMMATERIAL, Florida Exception for Statements by Child Victim of Abuse or Neglect

Answer 33

The Florida Evidence Code includes a hearsay exception 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 unavail- able as a witness. In addition to the traditional grounds for unavailability, the child is considered unavailable if participation in the trial or proceeding would result in
a substantial likelihood of severe emotional, mental, or physical harm. If the child is unavailable to testify, there must be particularly trust- worthy corroborative evidence of the crime.

Note: In criminal cases, application of this hearsay exception to a child’s testimo- nial hearsay statements has been held to violate a defen- dant’s constitutional right to confront witnesses.

Question 34

HEARSAY EXCEPTIONS —DECLARANT UNAVAILABLITY IMMATERIAL, Statements for Purposes of Medical Diagnosis or Treatment

Answer 34

In Florida, if the declarant is not the person who is seeking the diagnosis or treatment, the exception will apply only where (1) the person is unable to communicate the facts,
(2) the declarant has knowl- edge of the facts, and (3) the declarant is legally respon- sible for the person.
Regarding statements by
an abused child, the Florida Supreme Court has held that such statements are inadmis- sible under the medical excep- tion, but may be admitted under the separate exception for statements by a child abuse victim

Question 35

HEARSAY EXCEPTIONS —DECLARANT UNAVAILABLITY IMMATERIAL, Present Sense Impressions

Answer 35

In Florida, these statements are called “spontaneous statements.” Additionally, the Florida exception does not apply if the statement was made under circumstances that indicate its lack of trust- worthiness.

Question 36

HEARSAY EXCEPTIONS— DECLARANT UNAVAILABLE, Dying Declarations

Answer 36

In Florida, dying declarations are admissible in all civil and criminal cases.

FED: The exception for dying declara- tions applies only in homicide prosecutions and civil cases.