fl evidence Flashcards
presentation of evidece: the judge’s role
The lawyers present evidence through witness testimony, physical objects and documents, and other methods.
The judge rules upon objections to evidence and will either admit or deny
the admission of pieces of evidence.
(1) preliminary questions of admissibility
FRE: Allowed to consider otherwise in admissible material
FL: Not specifically allowed to consider inadmissible material
Preliminaryquestionsincludecompetencyofwitnesses,admissibilityofevidence,andthe
existence of privileges—judge acts as gatekeepers
(2) after the presentation of evidence
FRE: At the conclusion of the presentation of the evidence, the judge has the discretion to summarize and comment on the evidence
FL: A Florida judge CANNOT:
* summarize the evidence
* comment on the evidence
* comment on the credibility of a witness or
* comment on the guilt of the accused
presentation of evidece: judicial notice
Judicial notice—The court’s acceptance of certain facts as true without requiring formal proof
Judicial notice may be taken either by
(1) request of a party or
(2) upon the court’s own initiative.
And in Florida, a court may take judicial notice of an adjudicative fact at any time during a civil proceeding, even on appeal
- Adjudicative facts—Facts about the particular case; typically require proof and are decided by the jury
- Legislative facts—Laws, regulations, rules, and government actions
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FL—Judicial notice also applies to certain legislative facts:
* Judge MUST take judicial notice of U.S. and Florida statewide rules of court and decisions
* Judge MAY take judicial notice of other laws and rules of court
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FL—Judge MAY take judicial notice of other adjudicative facts that are not subject to reasonable dispute because they are generally known or can be accurately and readily determined from reliable sources
* If a party requests judicial notice of an adjudicative fact, the judge MUST take judicial notice if the party provides notice to the opposing party and presents sufficient information to the court.
* Both parties have the opportunity to be heard, and the judge must provide specific grounds for denying judicial notice.
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Effect in FL—When the court takes judicial notice of a fact, the court may instruct the jury:
The court MAY instruct the jury to accept something judicially noticed as fact, regardless of whether it is a civil or criminal case.
presentation of evidece: witness exclusion
At the request of a party (or on the court’s own initiative), non-party witnesses are usually excluded from the court during the testimony of other witnesses.
(1) Federal Exceptions to Witness Exclusion
* A non party witness whose presence is essential to a party’s case
* By statute, a victim who is allowed to be present
* If a party is not a natural person (e.g., a corporation), the party can designate a
representative to be present as the party
(2) Florida Exceptions to Witness Exclusion
civil cases
Court cannot exclude:
* A party who is a natural person;
* Designated officer or employee of a non-natural
party (e.g., a corporation); or
* A person whose presence is necessary to the presentation of the party’s case.
criminal cases
* The victim, the next-of-kin of the victim, the parent or guardian of the victim if a minor, or the victim’s lawful representative have the right to be present in the court unless, upon motion, the court determines that it would be prejudicial to the accused
presentation of evidece: Presumptions in Civil Cases
Rules created to assist in the presentation of evidence based on concerns with public policy, predictability, or access to evidence
A presumption is a conclusion that the trier of fact is required to draw after a party establishes certain underlying facts.
(1) types of presumptions
conclusive- must be taken as true; may not be challenged by contrary evidence
rebuttable- allows contrary evidence; but if on contrary evidence, must be taken as true
* There are two types of rebuttable presumptions:
1. “Bursting the bubble” presumptions—If the responding party produces contrary credible evidence, the presumption disappears.
2. Burden shifting presumptions—Merely producing contrary evidence will not rebut the presumption; instead, the burden of proof shifts to the responding party to show the nonexistence of the presumed fact.
(2) distinctions
FRE: All presumptions are conclusive or bursting
FL— Has conclusive presumptions, bursting bubble presumptions, and burden shifting presumptions
relevance and character
Character Evidence—General Rules
* Character evidence is generally inadmissible to prove that the person acted in conformity with that character.
* In specific circumstances, character evidence related to truthfulness, credibility, and specific instances of conduct may be admissible.
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Methods of Proof
* FRE—Character of a person, when admissible, may be proven by reputation or opinion testimony
* FL—Character of a person, when admissible, may be proven only by reputation, not opinion testimony
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Criminal Cases—Accused and Victim
(1) Character of the Accused
* The prosecution cannot offer evidence of the character of the accused to prove action in conformity unless the defendant opens the door to that character trait.
* If the defendant opens the door by presenting evidence of a character trait, the prosecution can rebut the evidence of the defendant’s character trait.
* In a civil case, evidence of a person’s character (or character trait, including based on prior convictions) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion.
(2) Character of the Victim
FRE— After the defendant has attacked the victim’s character, the prosecutor may:
* Rebut evidence of the victim’s bad character; and
* Attack the defendant’s character as to that particular trait
FL—After the defendant has attacked the victim’s character, the prosecutor may use only reputation evidence of the victim’s character; this does not open the door to the defendant’s character
(when a criminal defendant claiming self-defense presents evidence of the victim’s reputation for violence, the prosecution can only rebut with evidence of the victim’s character for peacefulness)
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Specific Act Evidence
If character is an essential element of a charge, claim, or defense, character evidence (including evidence of specific acts) is admissible
Most commonly arises in these cases:
* Negligent hiring—Character of the person hired may be relevant to the defendant’s negligence
* Defamation—Character of the plaintiff may be relevant to the truth or falsity of the allegedly defamatory statements
* Child-custody cases—Character of the parent or guardian often relevant to the best interests of the child
FRE—In civil and criminal cases, specific acts must be shown to be conditionally relevant.
* Requires a judge to find that the jury could reasonably find that the act actually occurred by a preponderance of the evidence.
FL—Specific other acts must be found by the judge to be conditionally relevant.
* Only admissible if the jury could reasonably find that the act actually occurred by clear and convincing evidence.
Florida Williams Rule
The prosecution may move to offer specific acts in their case-in-chief to show that the defendant acted in the same or similar way (MIMIC evidence), but:
* Must give the defendant at least 10 days’ notice, describing which acts the prosecution intends to use; and
* Judge must hold a Williams hearing, during which the judge must determine whether:
* The jury could reasonably find by clear and convincing evidence that the other similar act occurred; and
* The probative value is substantially outweighed by the danger of unfair prejudice.
The Williams hearing is not required to use MIMIC evidence as impeachment or rebuttal
evidence.’
Reverse Williams Rule—Applies when the accused claims that someone else committed the offense and seeks to introduce specific acts of the other person to prove that he is the real perpetrator
* FRE—Admissible by the accused if the acts are relevant and similar
* FL— Standard much higher; the acts must be strikingly similar
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Routine or Habit Evidence
FRE—Admissible to prove that a person or organization acted in accordance with the habit or routine on a particular occasion
FL—Rule allows the routine practice of an organization, but not a person’s habit
* Florida case law permits habit evidence to be admitted, but only to corroborate other evidence that shows the habit was followed at the relevant time.
witnesses
competence
Competence includes four elements:
* Must take an oath to testify truthfully;
* Must have perceived something;
* Must remember what they perceived; and
* Must have the ability to communicate
(1) Child as Witness—Florida Rules
* The court might not require the taking of an oath if it determines that the child understand the duty to tell the truth and the duty not to lie.
* Children under the age of 18 may be assisted in sexual offense cases, such as with service animals, subject to the court’s discretion.
(2) Interpreters
FRE—Interpreters are normally only used for non-English speaking witnesses.
FL—Interpreters may be used for any witness who needs assistance understanding or communicating.
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Impeachment
(1) Character for Truthfulness
FRE—Allows attack in the same way as provingcharacter:
* On cross-examination asking the witness about specific acts of untruthfulness;
* By calling a reputation witness; or
* By calling an opinion witness
FL—Cannot use specific acts of dishonesty or untruthfulness on cross-examination ,unless they amount to a conviction
* Can only call a reputation witness, NO SPECIFIC ACTS OR OPINION ALLOWED!
(2) Rehabilitation of the Attacked Witness
After the witness’s character for truthfulness is attacked, a party may introduce rebuttal testimony to support the witness’s credibility.
A rehabilitation witness who is testifying as to another witness’s character for truthfulness or untruthfulness is generally limited to the witness’s reputation for that trait.
* However, the rehabilitation witness may be cross-examined as to whether he had heard of specific acts of untruthfulness that contradict his testimon
FRE— By a reputation or opinion witness
FL—Only by a reputation witness
* The rebuttal witness may be cross-examined on whether she has heard of any specific acts of untruthfulness by the primary witness, but counsel must have a good faith basis to ask such a question.
(3) Use of Prior Convictions
Impeachment permitted by prior conviction for any crime punishable by death or imprisonment for more than one year (usually a felony), or for a misdemeanor involving dishonesty or false statement, subject to different limitations
Time limits
FRE—10-year limit on the use of convictions
FL—No definite time period on the use of convictions
* Civil cases—Judge decides whether the prior conviction is “too remote” in time to have a bearing on the present character of the witness.
* Criminal cases—Judge decides whether the probative value of the prior conviction is substantially outweighed by the danger of unfair prejudice.
Criminal defendants
* FRE—Heightened protection for a criminal defendant; the prior conviction’s probative value must outweigh the prejudice to him
* FL—No special protection for the accused; conviction admissible unless the probative value is substantially outweighed by the danger of unfair prejudice
Pardons
* FRE—bars the use of convictions that have been pardoned
* FL—does not bar the use of convictions that have been pardoned
Juvenile convictions
* FRE—Allows the use of juvenile convictions for impeachment in certain instances
* FL—Bans all use of juvenile convictions for impeachment
Procedure in Florida for use of prior convictions
* Not permitted to ask about the specifics of the prior conviction (including naming the crime involved) unless the accused is either untruthful or denies the conviction
* Defendant’s reputation character witnesses can be cross-examined as to whether they have heard of specific arrests or convictions of the defendant.
Prior Inconsistent Statements of the Witness
* A prior inconsistent statement is excepted from the hearsay rule and admissible both substantively and for impeachment purposes if made under penalty of perjury.
* Florida does not deem statements made during a police interrogation to have been made under penalty of perjury. (hearsay exception for inconsistent statements would not apply for this, and the statement is inadmissible as substantive evidence of whether Defendant committed the crime and inadmissible for impeachment too)
Disclosure
* FRE—allows the use of prior inconsistent statements to attack the witness’s credibility without giving the witness the prior statement
* FL—Upon request of the adverse party, the witness must be given the prior statement.
Extrinsic evidence and the opportunity to explain or deny
* FRE—Requires that at some point the witness be given the opportunity to explain or deny the statement
* If a witness who is being impeached with a prior inconsistent statement denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of the statement is admissible.
* FL—Requires that before the extrinsic evidence of the prior statement is permitted, the non-party witness must be shown the statement and allowed an opportunity to explain or deny and the witness denies or does not distinctly admit making the prior statement; the adverse party is then allowed to question the witness about the statement.
* CANNOT use for impeachment if witness is not given opportunity to explain/deny the statement and opposing party (party who presented the witness) does not have opportunity to examine witness again
* If the witness denies making or does not distinctly admit the making of the prior inconsistent statement, extrinsic evidence of the statement is admissible
hearsay: prior consistent statements
Prior consistent statements are generally hearsay and usually inadmissible to bolster a witness’s credibility.
In Florida, a prior consistent statement may be admissible as nonhearsay when the:
- declarant testifies at trial and is subject to cross-examination concerning the statement
- statement is being offered to rebut an express or implied charge of improper influence, motive, or recent fabrication and
- statement was made before the fact that indicates motive to falsely testify arose.
opinions
Opinion Testimony
(1) Lay Witnesses
* FRE—Admissible with respect to common-sense impressions that are not based on scientific, technical, or specialized knowledge, and are part of the witness’s observations
* FL—Admissible if (i)the witness cannot adequately or accurately communicate her perception without providing an opinion, and (ii) the opinion does not mislead the jury
(2) Expert Witnesses
Ultimate issue
* Expert witness can_ testify as to the ultimate issue in the case (e.g., whether a person was negligent, but not gross negligence)
* FRE—Under FRE 704(b) (i.e., the Hinckley Rule), an expert cannot state an opinion as to whether the accused had a required mental state
* FL—Expert may state an opinion as to whether the accused had a required mental state
* May not state an opinion that amounts to a legal conclusion (e.g., whether the accused acted with a “depraved mind,” or lacked “criminal capacity”)
Basis of opinion
* FRE—Expert may use inadmissible facts or data in forming their opinion; these underlying facts may be disclosed to the jury in certain circumstances.
* FL—Expert cannot testify as to otherwise inadmissible facts or data when giving their opinion.
tangible evidence: authentication
Tangible Evidence
Requires a foundation for admission (remember CRIT):
* competent
* relevant
* identification
* trustworthiness
All tangible items must be authenticated:
* To authenticate an item, a proponent must produce sufficient evidence (a standard lesser than a preponderance of the evidence) to show the item is what its proponent claims it is.
* When a reproduction (e.g., a video) is introduced, it may be authenticated by the testimony of a witness with personal knowledge that it accurately describes what the proponent claims it does. (that the camera system is reliable and accurate)
* Reply letter doctrine: authenticating a letter is written by someone because it was a reply, this is JUST TO PROVE THAT A LETTER WAS WRITTEN BY SOMEONE
FL—May use a photograph of wrongfully taken property to prove the theft of that property, allowing the property to be returned to the owner
The photograph must include a writing:
* Containing a written description of the property;
* Containing the name of the owner;
* Containing the location where it was taken;
* Containing the name of the investigating officer;
* Containing the date the photo was taken;
* Containing the name and signature of the photographer; and
* Made under oath by the investigating officer.
best evidence rule
best evidence rule
follows FRE, except that:
* if the document is a duplicate of negotiable instrument (note, not mortgage), a security, or a writing that evidences a right to payment of money, it is not admissible
* if there is a genuine question as to the original’s authenticity exists
* if there are circumstances make it unfair to admit the duplicate
otherwise, if a duplicate accurately reproduces the original, it is admissible (EVEN IF OTHER PARTY HAS ORIGINAL) to the same extent as the original
After accounting for the absence of an original, a party may prove the writing’s contents by other means—e.g., by introducing secondary evidence.
FL Business Records—Business record may be admitted without calling witness (i.e., it is self-authenticating) if:
* it contains an affidavit stating the required regularity and maintenance of the business record; and
* The affidavit is made by the custodian of the record of another qualified person.
privileges and public policy exclusions
FRE—No specific privileges under the rules; federal privileges arise from case law or other statutes
FL—9 specific privileges listed in the code
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marital privileges
(1) Spousal Immunity Privilege: fl does not recognize the Spousal Immunity Privilege
* spouses can be called to testify against each other in civil and criminal trials
(2) Florida Husband-Wife Privilege (Marital Communications Privilege)
* Protects confidential communications between the spouses, made during the marriage
* Can be asserted either spouse even after the marriage is dissolved
* Does not apply:
* In a case if one spouse is suing the other spouse;
* In a criminal case when one spouse is charged with a crime against the other spouse, his/her property, or the person or property of a child of either spouse; or
* In a criminal proceeding, if introduced by the defendant-spouse
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Florida Lawyer-Client Privilege
In addition to the general rules, the privilege in Florida also applies to communications between:
* The Department of Revenue’s child enforcement lawyer and a person seeking or using those program services; and
* A fiduciary or guardian for another person and a lawyer with respect to the relationship.
The privilege does not apply to communications:
* Relevant to parties claiming through the same deceased client; or
* Involving intention or competence of a client if the lawyer is an attesting witness to the signing of a document.
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Florida Physician-Patient
Not specifically listed the Florida evidence rules, but follows the common law recognizing confidential communications
Patient holds the privilege for purposes of treatment or diagnosis
Does not apply when condition of the patient is at issue or in malpractice cases brought by the patient against the physician
* would not apply in child sex abuse case, where child points to where she was abused
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Florida Psychotherapist-Patient
Protects confidential communications for the purpose of diagnosis or treatment of mental or emotional condition, including alcholism and other drug addiction
* group meetings are not confidential.
The patient holds the privilege, but the psychotherapist must assert the privilege on the patient’s behalf.
Does not apply to cases where condition is in issue, court-ordered exams, or during commitment proceedings
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Other Privileges
- Florida Clergy-Penitent—Protects confidential communications “made privately for the purpose of seeking spiritual counsel and advice,” not those made in group settings
- Florida Accountant-Client—Protects confidential communications made by a client to his accountant for the purpose of obtaining or providing accounting assistance; exceptions are similar to attorney-client privilege, the privilege does not protect communications made to enable or aid the commission of what the client knew or should have known was a crime or fraud
- Florida Journalist Privilege
* Professional journalists have a qualified privilege to not disclose information or the identity of sources
* BUT Does not apply to physical evidence, eye-witness observations, or recordings of crimes
* When there is a compelling state interest presented to the court, the court may order disclosure.
* The privilege is not waived if the journalist publishes or broadcasts the information.
* Does not extend to non-professional journalists (e.g., bloggers, book authors, statements on social media, etc.) - trade secret privilege
* owner of a trade secret has the right to refuse to disclose and prevent another from disclosing a trade secret.
* However, this privilege is not allowed if asserting such would:
* conceal fraud or
* otherwise work an injustice.
* This privilege may be claimed by the owner or the owner’s agent or employee.
* When the privilege is asserted in response to a discovery request, the court must balance the requesting party’s need for the information with protection of the trade secret
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Other Public Policy Exclusions in Florida
Mediation—Statements made during mediation are confidential (PRIVILEGED) unless waived by all parties.
* A written agreement signed by the parties as part of mediation is not protected.
statements made while negotiating a plea with a prosecutor and statements made during plea proceeding are excluded
* can be used in perjury case if they were false statements, under oath, on record, with counsel
Mandatory Florida Accident Reports—Excluded in both civil and criminal cases
Inadmissible to prove fault in civil action:
* an offer to pay medical expenses resulting from an injury
* Statements of sympathy (saying sorry, sending flower arrangement)
* BUT statements indicating fault made in conjunction with these statements ARE admissible (“I will never drink again, the tree should have been taken down years ago)
victim of sexual assault or domestic violence—Privilege to:
* Refuse to disclose communications with a sexual assault or domestic violence counselor; and
* Prevent the counselor from disclosing such communications
FL Rape Shield—Prior consensual sexual activity of a victim and a person other than the defendant is not admissible unless it is shown that the other instances are so similar to the conduct or behavior in the present case that it becomes relevant to the issue of consent.
hearsay and hearsay exceptions: admissions exception
Admissions Exception
* FRE—Statements of a party opponent are excluded from hearsay.
* FL—Statement of a party opponent exclusion is called the admissions exception. (girlfriend goes to witness stand and says defendant told me ABC)
* FL—The accused may use statements by the government’s agents (including state forensic lab reports) against the prosecution under the admissions exception. can be used substantively and for impeachment (example, where defense brings up state forensic lab report showing the prosecution’s witness had gun residue on his own hands, its a statement by the state offered against the state and calls into credibility the state’s witness)
(1) Co-Conspirator Statements
FRE—So long as there was a conspiracy, and the statement was made (i) by a co- conspirator, and (ii) during and in furtherance of the conspiracy, it is admissible as the statement of a co-conspirator.
FL—Requires a judge to find that there is evidence independent of the statements to prove the conspiracy before admitting the co-conspirator’s statements
* Unlike FRE, which allows the co-conspirator statement to establish the conspiracy (i.e., bootstrapping)
* FRE—Permits use of defendant’s own statements to prove the conspiracy
* FL—statement is only admissible if the proponent can show by a preponderance of the evidence that a conspiracy existed without using the statements themselves, otherwise it is hearsay
nonhearsay:
out of court identification of a person is not hearsay and may be admissible as substantive evidence if the individual making the identification testifies and is subject to cross-examination
hearsay and hearsay exceptions: declarant unavailable
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Declarant Unavailable
(1) Former Testimony
* FRE—Permits former testimony of an unavailable declarant to be used in a subsequent civil trial if the party or a predecessor-in-interest had an opportunity and similar motive to develop the testimony
* FL—Similar rule, but also permits former testimony( regardless of the availability of the declarant) to be used in a subsequent civil trial if the party, a predecessor in interest, or a person with a similar interest had an opportunity and motive to develop the testimony
(2) Dying Declaration
* FRE—Only applies in homicide cases and civil cases
* FL—Applies in civil cases and all criminal cases
(3) Florida—Statement by Deceased or Ill Declarant Similar to One Previously Admitted
* No equivalent exception under the FRE
* In suits against an estate of a deceased person, if statements of the unavailable declarant are offered by one party, written or oral statements made by that declarant regarding the same subject matter may be offered by another party.
* for example, one party calls a witness who says deceased told her she owed money to one party, the other party brings in letter where deceased is saying that the money was a gift. admissible.
* In a will contest case, the admission of a will is not a statement of the decedent that would open the door to rebuttal statements of the decedent.
* other party can rebut with response-letter
(4) statement against interest
* statement that was against a declarant’s proprietary or pecuniary interest at the time it was made when the declarant is unavailable to testify.
* ex: A makes statement implicating herself and B in a crime. A dies. At B’s trial, prosecutor can use A’s statement against interest which also implicated B as a hearsay exception
B
hearsay and hearsay exceptions: declarant’s availability immaterial
(1) Present Sense Impressions (FRE) or Spontaneous Statements (FL)
* FRE—A statement describing or explaining an event while it is being perceived or immediately after is admissible, without any consideration of trustworthiness
* FL—Allows “spontaneous statements,” unless the judge determines that the circumstances indicate a lack of trustworthiness, such as lack of personal knowledge or an improper motive.
(2) Then-Existing Condition
* FRE—Allows statements of then-existing state of mind or physical condition, without any consideration of trustworthiness
* FL—Allows these statements except when the judge determines that the circumstances of the statement indicate a lack of trustworthiness, such as motive
* State of mind is allowed to show the intent of the declarant only
(3) Statement for Medical Diagnosis or Treatment
FRE—Permits the statement to be made by either the patient or by someone else on the patient’s behalf
FL—Generally only permits statement by the patient
* Allows statements of a person who has legal responsibility for the patient and who has knowledge of the patient’s condition, but only if the patient is unable to communicate
* Statements of victims of child sexual abuse identifying an abuser are NOT admissible as statements for medical diagnosis or treatment, but may be admissible under the special Florida exception for those type of cases.
* the exception is that the out-of-court statement made by the child victim (under 16) describing abuse (like identifying abuser) is admissible if there judge derermines in camera that the statement’s circumstances are reliable and child testifies or (if unavailable) there is corrobrative evidence of offense (like medical records)
(4) Recorded Recollection
* FRE—Permits statements to be used in place of the witness’s testimony when the witness no longer remembers the facts, so long as the statement was either made by the witness or adopted by the witness
* FL—Does not permit the use of adopted statements made by someone other than the witness
if witness is unable to testify about a matter for which a record exists, the record is not excluded as hearsay if the following is established:
* the record in on a matter that the witness once knew about
* the record was made or adopted by the witness when the matter was fresh in the witness’s memory
* the record accurately reflects the witnesses’ knowledge and
* the witness states that she cannot recall the event well enough to testify fully and accurately
under this exception, the record, if admitted, may be read into evidence BUT it may be received as an exhibit only if offered by an adverse party
(5) Business Records Containing an Opinion or Diagnosis (includes physician’s report)
* FRE—Permits opinions or diagnoses contained in a business record to be admitted
* FL—Permits opinions or diagnoses contained in a business record to be admitted ONLY if the opinion would be admissible if made by the person who made the opinion under the Florida opinion rules (layperson who makes a statement to dr saying she thinks her child has fetal alcohol syndrome, would not be admissible under business record)
(6) Public Records and Reports
* FRE—Does not permit observations of a law enforcement officer contained in the officer’s report to be considered as a public record in a criminal case
* FL—In criminal cases involving DUI for alcohol or drugs, allows admission of an officer’s observations contained in a police report when the observations relate to testing for alcohol or drugs
(7) Use of a Learned Treatise
FRE—Allowed so long as it is established by either the judge or an expert that the treatise is authoritative
FL—No learned treatise hearsay exception (cant be admitted as evidence)
Only allows an authoritative treatise to be used for impeachment during cross- examination of an expert witness to attack their credibility if:
* That expert admits that the treatise or its author is authoritative; or
* The judge finds that the treatise or its author is authoritative by judicial notice.
(8) Market Reports and Commercial Publications
* FRE—Presumes the reliability of these publications
* FL—Requires the court to find that the sources of the information and method of
preparation justify admission
