FL EVIDENCE

Question 1

Judicial Notice of Common Knowledge Facts in Community

Answer 1

Judicial notice may be taken of facts that are not subject to reasonable dispute because they are generally known within the territorial jurisdiction of the trial court. The facts need not be known everywhere as long as they are known in the community where the court is sitting. The jury is not required to accept the fact as conclusive in a criminal trial.

Question 2

How Defendant Proves Character

Answer 2

Florida restricts the defendant’s witnesses to reputation evidence to prove the defendant’s character. Opinion evidence is not allowed.

Question 3

Prosecution Rebuttal on Defendant’s Character Evidence About Victim

Answer 3

In Florida, the prosecution can rebut the defendant’s bad character evidence of the victim only with reputation evidence of the victim’s good character for the same trait. No opinion evidence, no specific acts.

Question 4

Habit Evidence

Answer 4

In FL, evidence of a person’s habit is not automatically admissible to prove that the person acted in accordance with the habit. It is admissible only to corroborate other evidence that shows the habit occurred at the relevant time. There usually must be independent evidence that the person followed the habit on the occasion at issue.
BUT FL allows uncorroborated evidence of the routine practice of an organization to prove that the organization acted in accordance with its routine practice.

Question 5

Compromise Negotiations Regarding Civil Dispute w/ Governmental Authority

Answer 5

FL did not adopt the federal provision allowing evidence of conduct or statements made during compromise negotiations regarding a civil dispute with a governmental authority when offered in a criminal case. Will be excluded.

Question 6

Expressions of Sympathy

Answer 6

In a FL civil case, that portion of a statement, writing, or benevolent gesture that expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or their family is inadmissible. However, a statement of fault that is part of, or in addition to, any of the above will be admissible.

Question 7

FL Rape Shield Statute

Answer 7

Only applies to criminal sexual battery and human trafficking prosecutions.
The following are inadmissible (1) reputation evidence relating to the victim’s prior sexual conduct and (2) evidence presented to show victim’s manner of dress.
Evidence of specific instances of prior CONSENSUAL sexual activity between victim and persons OTHER than D is generally inadmissible, unless it is show that the evidence (1) tends to prove D was not source of physical evidence, pregnancy, injury, or disease or (2) tends to establish similar pattern of conduct by victim that tends to establish consent.

Question 8

Similar acts/Related Misconduct to prove opportunity, knowledge, or any relevant fact other than accused’s bad character or criminal disposition

Answer 8

In FL, to be admissible, similar acts must by STRIKINGLY SIMILAR to the act at issue in the case and share some unique characteristic or combination of characteristics that set them apart.

Question 9

MIMIC Evidence Notice

Answer 9

FL requires the prosecution give 10 days notice of intent to use other acts evidence.
Federal requires reasonable notice in writing that articulates the non-propensity purpose and the reasoning that supports the purpose. Or in any form during trial if the court excuses lack of pretrial notice.

Question 10

Prior Acts of Sexual Assault or Child Molestation

Answer 10

In FL, evidence of a Ds prior acts of sexual assault or child molestation is admissible only in criminal cases where the D is accused of committing the same type of act and there is a 10 day notice period.
Federal allows it in a civil or criminal case where D is accused of committing an act of sexual assault or child molestation and requires 15 day notice.

Question 11

Judicial Notice FL/FED

Answer 11

In FL, for judicial notice to be mandatory, FL additionally requires that the requesting party (1) provide each adverse party w/ timely written notice of the request and (2) file proof of such notice with the court.
Federal allows notice to be mandatory if party requests it and supplies the court with necessary information.

Question 12

Procedural Aspects of Judicial Notice (Documentary evidence)

Answer 12

FL specifies that if the court resorts to any documentary source of info not received in open court, the court must make the info and its source a part of the record. The court also must afford each party reasonable opportunity to challenge such info and to offer additional information, BEFORE judicial notice of the matter is taken.
When court denies, the court must inform the parties at earliest practicable time and must indicate for the record that it has denied the request.

Question 13

Conclusiveness of Judicial Notice

Answer 13

In FL, the court has discretion in ALL cases to determine whether judicial notice of a fact is conclusive. if such a finding is made, the jury is instructed to accept the fact as judicially noticed.
In Federal, in a civil case, the court instructs the jury that the judicial notice is conclusive, and in a criminal case, the jury is not required to accept as conclusive any fact judicially noticed.

Question 14

Mandatory Judicial Notice

Answer 14

in FL,
(1) decisional, constitutional, and public statutory law and resolutions of FL legislature and Congress of the US
(2) FL rules of court that have statewide applications, its own rules, and rules of the US court adopted by the Sup Ct
(3) Rules of court of Sup Ct and the US Ct of Appeals
IN Federal
(1) federal public law (US Constitution, treaties, public acts of congress, federal case law)
(2) state public law (the constitution, public statutes, and common law of the states)
(3) Official regulations (official compilation of codes and rules and regs of the forum state and fed govt except those relating to internal org or mgt of a state agency)

Question 15

Photographs of Wrongfully Taken Property

Answer 15

In any prosecution for a crime involving the wrongful taking of property, a photo of the property alleged to have been stolen may be deemed competent evidence of such property and may be admissible to the same extent as if such property were introduced.
Photo must
(1) bear written description of property (2) name of owner (3) location where taking occurred (4) name of investigating law enforcement officer (5) date photo was taken (6) name of photographer
^^ must be made under oath by investigating law enforcement officer

Question 16

Dead Man Acts

Answer 16

FL no longer has dead man acts.

Question 17

Hypnotically Refreshed Testimony

Answer 17

The fact that a witness has undergone hypnosis does not render them incompetent to testify to a fact recalled prior to hypnosis as long as it was recorded (writing or recording). But testimony on a memory refreshed or enhanced through hypnosis is inadmissible per se in criminal trial.
Exception for criminal Ds - might hinder their constitutional right to testify. Prosecution needs reasonable notice and the session should be recorded.

Question 18

Opinion Testimony of Law Witness

Answer 18

FL adopts a more restrictive view of opinions by lay witnesses. In FL, lay opinion is admissible when (1) the witness cannot readily, and with equal accuracy and adequacy, communicate what he perceived to the trier of fact without testifying in the form of opinions (2) the testimony will not mislead and (3) do not require special knowledge or training.

Question 19

Authoritative Texts and Treatises

Answer 19

In 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. Moreover, the publication cannot be used on direct to bolster witness credibility.
Federal allows the statements from treatise to be read into the record as substantive evidence, and may even be introduced on direct examination of parties own witness.

Question 20

Extrinsic evidence of prior inconsistent statement

Answer 20

FL has more specific requirements for introducing extrinsic evidence.
* the witness must be given opportunity to explain/deny the prior inconsistent statement, and opposing party must be given opportunity to examine the witness regarding the statement, BEFORE introduction of the statement by extrinsic evidence.
* If the statement was in writing, the proponent must SHOW IT to the witness on the opponent’s motion before the witness can be examined by it.
* Then, if the witness denies or does not admit making the statement, the extrinsic evidence is admissible.
Federal Law
(1) witness AT SOME POINT is given opportunity to explain/deny
(2) adverse party, is AT SOME POINT given opportunity to examine witness

Question 21

Conviction of a Crime for Impeachment

Answer 21

FL courts have held that a D witness or other witness may not be impeached w/ evidence of a prior guilty plea or guilty verdict if the trial court in that case withheld adjudication of guilty or did not enter a final judgment of conviction. A “withhold of adjudication” is a type of sentence where the D is sentenced to probation but is not formally convicted of the offense.
Federal Law
Actual conviction required

Question 22

Crimes Involving Dishonesty or False Statement or Felony

Answer 22

As the same under Federal Rules, in FL, 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. Further, the general rule 403 balancing test applies to ALL convictions regardless of the identity of the witness.
In Federal – trial court has no discretion to exclude impeachment by crimes of dishonesty or false statement.

Question 23

Crime Must not Be Too Remote

Answer 23

IN FL, a conviction is inadmissible in a civil case if it is “so remote in time as to have no bearing on the present character of the witness.” No definite time period. Does not apply to exclude remote convictions in criminal cases.
In Federal – inadmissible if more than 10 years have elapsed since conviction or release, whichever is later.

Question 24

Juvenile Adjudication for Impeachment

Answer 24

in FL, always inadmissible for impeachment purposes.

Question 25

Effect of Pardon

Answer 25

In FL< 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.
In Federal, a conviction may be shown unless based on innocence or if the person pardoned has not been convicted of a subsequent crime punishable by death or imprisonment in excess of one year.

Question 26

Means of Proof of Prior Conviction

Answer 26

In FL, the accepted procedure is to ask witness whether they have been convicted of felony or crime involving dishonesty/false statement and how many times. Party cannot impeach witness w/ specifics of the witness’s prior convictions UNLESS witness is untruthful about the existence or number. If untruthful, party can introduce certified copy of judgment.
In Federal, – prior conviction is shown by EITHER an admission on direct/cross or by introducing the record of judgment.

Question 27

Prior Bad Acts

Answer 27

FL does not recognize this method of impeachment. A witness may not be asked about prior specific acts of misconduct for which they were not convicted.
In Federal, a witness may be interrogated on cross w/ respect to any immoral, vicious, or criminal act in life that may affect their character and show them to be unworthy of belief.

Question 28

Opinion or Reputation Evidence of Untruthfulness

Answer 28

FL does not recognize opinion. Therefore, a witness scan be impeached only w/ reputation evidence of untruthfulness.

Question 29

Fiduciary Atty Client Privilege

Answer 29

Under this privilege in FL, a communication between a lawyer and a client who is acting as fiduciary (personal rep, trustee, GAL) is privileged to the same extent as if the client were not acting as a fiduciary. For purposes of this privilege, the fiduciary is treated as the attys only client (and joint rule does not apply). If a dispute arises between the fiduciary and beneficiary, the communications btwn the atty and fiduciary are privileged.
In Federal, where an atty acts for both parties to a transaction, no privilege can be invoked in lawsuit between the two parties.

Question 30

Atty Client Privilege Limitation

Answer 30

In FL< when an atty represents a public entity, under the FL Public Records Act, all public records must be available for inspection and copying and written communications between atty and public entity client are not protected. Under FLs Sunshine Law, meetings of govt bodies at which official actions will be taken are open to the public and statements btwn public officials and their attys at meetings are not protected.

Question 31

Physician Patient Privilege

Answer 31

FL does not recognize a general physician patient privilege. There is a statute that provides that patient records may not be furnished to, and the medical condition may not be discussed with, any person w/o the patient’s written authorization except in certain limited circumstances. This statute does not create an evidentiary privilege between physician and patient, but merely recognizes confidentiality of such info outside of judicial proceedings.
in Federal, the physician patient privilege is a statutory privilege where a physician is foreclosed from divulging in judicial proceedings info that he acquired while attending a patient in a professional capacity, which info was necessary to enable the physician to act in his professional capacity.

Question 32

Psychotherapist Patient Privilege

Answer 32

FL 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.

Question 33

Spousal Immunity

Answer 33

FL does NOT recognize the doctrine of spousal immunity (but does recognize the privilege for confidential marital communications)
Federal, allows immunity to be asserted during the marriage.

Question 34

Clergy Penitent Privilege

Answer 34

FL recognizes this privilege. A confidential communication btwn a person and cleric made privately for the purpose of spiritual counsel is privileged. The privilege may be claimed by (1) the person (2) the clergy member on behalf of the person (3) a conservator or guardian or (4) the personal rep of a deceased person.

Question 35

Accountant Client Privilege

Answer 35

FL recognizes this privilege which protects info and communications of a certified public accountant from a client in the rendition of services.
Federal law does not recognize.

Question 36

Professional Journalist Privilege

Answer 36

In FL, a professional journalist has a qualified privilege not to divulge info obtained which actively gathering news (does not apply to physical evidence, eyewitness observations, or visual or audio recordings of crimes). Party may overcome this by showing (1) information is relevant and material to unresolved issues (2) that the info cannot be obtains and (3) a compelling state interest exists requiring disclosure.
In Federal, Sup Ct held that there is no constitutional protection for a journalist’s source of info.

Question 37

Additional FL Privileges

Answer 37

• confidential communications btwn sexual assault counselor or trained volunteer and victim
• communications btwn human trafficking victim advocate or trained volunteer and victim
• communications btwn registered domestic violence advocate and victim concerning the incident of domestic violence
• written reports made by persons involved in car accidents - confidential use of Dept of Highway Safety and not admissible in criminal or civil trial

Question 38

Exclusion and Sequestration of Witnesses

Answer 38

In FL, a witness in a criminal case may not be excluded if they are the victim, the victim’s next of kin, the parent or guardian of a minor child victim, or lawful representative of such persons unless court determines presence to be prejudicial.
In Federal, upon party’s request, trial judge MUST order witnesses excluded from court room. But not (1) party or designated officer or employee of party (2) persons whose presence is essential to presentation of party’s claim or defense or (3) ppl statutorily authorized to be present

Question 39

Prior Consistent Statement

Answer 39

FL’s hearsay exclusion for prior consistent statements applies only to rebut a charge of lying or exaggerating due to some improper motive and was made before improper motive arose.
In Federal –
can use to (1) rebut express or implied charge of lying or exaggerating b/c of motive or (2) to rehabilitate witness whose credibility has been impeached on some non character ground other than a charge of recent motivation to lie or exaggerate

Question 40

Party Opponent Statement

Answer 40

In FL, an opposing party’s statement is called an admission and is treated as an exception to the hearsay rule
In Federal –
Is not hearsay.

Question 41

Vicarious Statements of Co Conspirators

Answer 41

In 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) must be established by independent evidence. Once the conspiracy’s established, the conspirator’s statements will qualify as vicarious admissions of co-conspirator.
In Federal –
Statements of one conspirator made to a 3rd party in furtherance of a conspiracy are admissible against co-conspirators. Must be at a time when declarant was participating in the conspiracy.

Question 42

Statement Against Interest

Answer 42

In FL, corroboration is required only where the statement against interest is being offered to exculpate the accused. (Statements offered by prosecution do not need to be corroborated)
In Federal –
In criminal cases, there must be corroborating circumstances indicating the trustworthiness of such statements to allow them in.

Question 43

Dying Declarations

Answer 43

In FL, dying declarations are admissible in all civil and criminal cases
In Federal —
Allowed in homicide or civil action.

Question 44

Present Sense Impressions

Answer 44

In FL, these are called spontaneous statements. Also, the exception does not apply if the statement was made under circumstances that indicate its lack of trustworthiness.
In Federal –
Believed to be safe from defects in memory and there is little or no time for calculated misstatement.

Question 45

Present State of Mind

Answer 45

In FL, not admissible if circumstances indicate lack of trustworthiness. PG 115