FL Evidence Flashcards
Routine Practice
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.
statement or benevolent gesture expressing sympathy
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.
Character evidence
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.
subsequent remedial measures
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.
Opinion Testimony by Laywitnesses
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
authoritative texts and treatises
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
psychotherapist/social worker client privilege
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.)
privileges related to marriage
FL recognizes the privilege for confidential communications made between spouses during the course of a valid marriage. it does NOT recognize spousal immunity
Clergy- pentinent 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.
Who may invoke clergy privilege:
the person, the guardian or convservator of a person, the peronal representative of a deceased person, or a member of the clergy.
hearsay exceptions
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
hearsay exceptions when declarant unavailable
1) former testimony
2) statement under belief of impending death
3) statement against interest
4) statement of person or family history
dying declarations- statements under belief of impending death
are admissible in all civil and criminal cases
Judicial Power to comment upon evidence
judge is prohibited from summing up the evidence or commenting to the jury on its weight or the credibility of the witnesses.
CHARACTER EVIDENCE, Sexual Assault Victim’s Past Behavior
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
CHARACTER EVIDENCE, Specific Acts of Misconduct Admissible If Independently Relevant, Notice to Accused
In Florida, the prosecution must give 10 days’ notice of intent to use other-acts evidence.
CHARACTER EVIDENCE, Specific Acts of Misconduct Admissible If Independently Relevant, Quantum of Proof
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).
CHARACTER EVIDENCE, Prior Acts of Sexual Assault or Child Molestation
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.
judicial notice to be mandatory:
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.
COMPETENCY OF WITNESSES, Use of Hypnosis
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.
IMPEACHMENT, Criminal Convictions, Court’s Discretion to Exclude Conviction
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.
IMPEACHMENT, Criminal Convictions, Actual Conviction Required
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).
IMPEACHMENT, Criminal Convictions, Means of Proving Conviction
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.
IMPEACHMENT, Criminal Convictions, Juvenile Adjudications
In Florida, juvenile offenses are always inadmissible for impeachment purposes.
