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Florida Distinctions > FL Evidence > Flashcards

FL Evidence Flashcards

1
Q

can inadmissible material be considered in prelim Qs of admissibility?

A

no

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2
Q

What cant a judge do after the Presentation of Evidence

A

A Florida judge CANNOT:

> Summarize or comment the evidence;
Comment on a witnesses’ credibility
Comment on the guilt of the accused

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3
Q

What legislative facts can a FL judge take judicial notice of

A

> MUST take notice of U.S./FL statewide laws
MAY take notice of other laws (not state, foreign etc.)

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4
Q

Do FL judges have to take judicial notice of adjudicative fact?

A

> Judge MAY take judicial notice of other adjudicative facts not subject to dispute

Judge MUST when:
> A party requests judicial notice of an adjudicative fact + provides notice to OC + presents sufficient info to court

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5
Q

When the court does take judicial notice of a fact, what do they instruct the jury?

A

Civil cases:
> either that the jury:
- MUST or MAY accept accept a fact true
(so they take it but jury doesn’t have to)

Criminal cases:
> that the jury MAY accept a fact true

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6
Q

Sometimes witnesses may be excluded from the court during
the testimony of other witnesses.

In FL, who cannot be excluded?

A

Civil cases:
> a natural person party
> Designated officer or employee of a non-natural party (ex: a corp)
> A person whose presence is
necessary to the presentation of the party’s case.

Criminal cases:
> the victim + their next of kin
> parent/guardian of a minor victim
> the victim’s lawful representative
**BUT CAN be excluded if determined that it’d be prejudicial to the accused)

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7
Q

what are the 3 types of presumptions in FL

A

(1) conclusive presumptions
(2) bursting bubble presumptions (boom proved u wrong)
(3) burden shifting presumptions (boom, now u have to boom back)

(the last 2 are both types of rebuttable presumptions)

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8
Q

How can Character Evidence be proven when admissible?

A

Reputation only, not opinion testimony

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9
Q

what can the prosecution do after the defendant attacks the character of the victim? who does the door open to?

A

The prosecutor can use reputation evidence of the victim’s character to rebutt

> the door DOES NOT open for character evidence on defendant

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10
Q

in a case where character is an essential element of a charge/claim/defense, what is the required evidence standard of specific acts?

A

CIVIL:
Specific acts will only be admissible if the jury could find the act actually occurred by CLEAR AND CONVINCING

CRIMINAL:
To use specific acts for MIMIC
- the prosecution has to give D at least 10 DAYS NOTICE!!!
- describe which acts they intend to use
- Judge has to hold a Williams hearing to determine if a jury could make a finding by clear and convincing evidence + probative value is subs outweighed by prejudice
(Williams hearing is not required to use MIMIC as impeachment or rebuttal)

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11
Q

Reverse Williams Rule:

If D wants to claim someone else did it, by showing specific acts, what’s the evidentiary standard to meet?

A

D say: no look he did it !!!
the acts are strikingly similar !!!!

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12
Q

Routine or Habit Evidence

A

Organization:
> habit evidence admissible to prove they acted in accordance

Person’s habit: (only as support)
> habit evidence is only admissible to corroborate (not prove) other evidence that already shows the habit was followed

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13
Q

Child as Witness

A

oath may not be required if the court determines the child understands duty:
- to tell the truth
- to not lie

minor under age of 18 can be assisted in sexual case cases w service animals

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14
Q

Interpreters

A

Interpreters may be used for any witness who needs assistance understanding or communicating

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15
Q

Impeachment:
Character for Truthfulness

A

Can’t use specific acts of untruthfulness on cross-examination, unless
they amount to a conviction

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16
Q

how can an attacked witness be rehabilitated

A

Only by a reputation witness

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17
Q

Use of Prior Convictions to impeach

A

civil:
prior convictions ok if judge decide its not too remote in time to have bearing on the witness’s character

crim:
- admissible if probative value > unfair prejudice
- no 10 yr restriction

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18
Q

Impeachment:
pardons

A

you can use convictions that have been pardoned

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19
Q

Impeachment:
Juvenile convictions

A

CANT use of juvenile convictions for impeachment

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20
Q

Impeachment:
Procedure in Florida for use of prior convictions

A

Have you ever been convicted of a felony? Or misdemeanor involving dishonesty
How many times?

Can’t ask about the specifics of the prior conviction (including naming the crime) unless the accused is either
>untruthful
> denies the conviction

D’s reputation character witnesses can be cross-examined as to if they heard of specific arrests or convictions of the defendant

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21
Q

Impeachment:
Prior Inconsistent Statements of the Witness

A

before attacking the witnesses’ credibility w the use of prior inconsistent statements, the witness has to be give those statements IF the ad verse party requests so

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22
Q

Impeachment:
Prior Inconsistent Statements of the Witness through extrinsic evdience

A

before using extrinsic evidence of
the prior statement, the non-party witness must be shown the statement and allowed an opportunity to explain or deny

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23
Q

true or false:
Generally, before extrinsic evidence of a prior statement is permitted in Florida, the non-party witness must be shown the statement and allowed an opportunity to explain or deny.

A

true

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24
Q

When is lay Witnesses Opinion Testimony admissible

A

If
(i) the witness cannot adequately or accurately communicate her
perception without providing an opinion, and
(ii) the opinion does not
mislead the jury

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25
Q

can an expert witness give an opinion on D’s mental state?

A

Yes, expert can give opinion on whether D had the required mental state
* cant give opinion that amounts to legal conclusion though (whether D had depraved mind etc)

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26
Q

Can A qualified expert opinion can be given as to negligence, even if the opinion goes to the ultimate issue?

A

yes

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27
Q

Tangible Evidence
can you let a picture in instead of the property when proving theft of that item

A

yes but the pic must include:
> description
> name of owner
> where pic was taken
> name of officer investigating
> date of pic
> name/signature of photographer
> made under oath by officer

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28
Q

Best Evidence Rule

A

Follows FRE:
Requires that an original or reliable duplicate of a recording, writing, or photograph be produced to prove its contents

unless the document is a duplicate of a writing evidencing a right to the payment of money like a negotiable interest/a security. Then it is NOT admissible

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29
Q

Under the Best Evidence Rule when will other evidence of the originals be admissible in lieu of the originals?

A

When all of the originals are lost or destroyed
and
its loss or destruction is not the result of the proponent acting in bad faith.

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30
Q

Tangible Evidence:
FL Business Records

A

> business records can be admitted w/out calling witness if:

> it contains and affidavit starting the regularity and maintenance of the business record AND
the affidavit is made by the custodian of the record or another qualified person

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31
Q

how many privileges does FL have listed in the code

A

10

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32
Q

Florida Husband-Wife Privilege (Marital Communications Privilege)

A

> protects confidential ingo between spouses made during marriage
both hold the privilege even after marriage so one can prevent the other
Doesn’t apply if:
- suing each other
- crim case regarding them/property/a child
- In a crim case, the privilege doesn’t apply introduced by the defendant spouse

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33
Q

Does FL have the Spousal Immunity Privilege?

A

No, FL only recognizes the Marital Communications Privilege

aka Husband-wife privilege

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34
Q

Florida Lawyer-Client Privilege

A

in addition to FRE rules, it also protects:
> communications between w dept of revenue child enforcement lawyer
> a fiduciary/guardian for another person and the lawyer

Doesn’t apply to:
> parties claiming through same deceased client
> anytime a lawyer is also the attesting witness to the signing of a doc

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35
Q

Florida Physician-Patient Privilege

A

FRE + doesn’t apply when its the condition of the patient is at issue or in malpractice cases by patient against the doctor

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36
Q

Florida Psychotherapist-Patient Privilege

A

protects communication for the diagnosis/treatment of:
> mental/emotional conditions
> alcoholism/drug addition (group meetings aren’t confidential)
> Patient holds the privilege, but psychotherapist asserts it
> doesn’t apply to court ordered exams/commitment proceedings

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37
Q

Other privileges

A

Florida Clergy-Penitent
> Protects comm. seeking spiritual counsel except if in group

Florida Accountant-Client
> Protects client/accountant comm. + exceptions same as attny/client

Florida Journalist Privilege
> Professional journalists have piv to not disclose info/ID of sources
> unless of physical evidence, eyewitness observation, or recordings of crimes
> if compelling interest, court can order disclosure
> Priv isn’t waived just bc they publish or broadcast the info
> doesn’t apply to nonprofessional journalists

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38
Q

Are Statements made during mediation confidential?

A

yes unless waived by all parties

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39
Q

are the FL mandatory accident reports admissible in court

A

No, excluded in both civil and criminal cases
we dont want ur little cop report

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40
Q

Are statements of sympathy admissible?

A

No, but but statements indicating fault ARE admissible

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41
Q

What type of privilege do victims of sexual assault or domestic violence have

A

Privilege to:
> not disclose comm. with a sexual assault or DV counselor
> Can prevent the counselor from disclosing such communications

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42
Q

FL Rape Shield

A

Victim’s past consensual sexual activity w/ others is not admissible unless:
> conduct is so similar to present case that it becomes relevant as to consent
> to prove D wasn’t the source of semen, pregnancy, injury, disease

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43
Q

Admissions Exception
(statement by party opponent)

A

same as FRE + D can use statements made by govt agents against the prosecution

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44
Q

Co-Conspirator Statements

we dont trust words, first action that there was conspiracy

A

FL doesn’t allow the statements of co-conspirators to come in to prove there was a conspiracy

In FL, a judge is required to first find that there is evidence INDEPENDENT of the statements to prove the conspiracy before admitting co-conspirator’s statements

same w/ Defendants. they’re statements wont come in to prove conspiracy, the conspiracy needs to be proven first

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45
Q

James hearing

A

The hearing where the judge determines whether a
conspiracy exists for the purpose of admitting the statements by co-conspirators/defendant

46
Q

Declarant Unavailable:
Former testimony

A

FRE: former testimony of an unavailable declarant ok if there was an opportunity & similar motive to have developed that testimony that first time by predecessor-in-interest

FL: same but also allows ok if a person w a similar interest had an opportunity and motive to develop the testimony
(ONLY in civil cases not crim)

47
Q

Dying Declaration

A

FRE: applies only homicide and civil

FL: applies in ALL cases

48
Q

Florida—Statement by Deceased or Ill Declarant Similar to One Previously Admitted

A

> sued an estate or dead person
then one party offers statements of the unavailable declarant

Now,
a written/oral statements made by that declarant about the
same subject mater may be offered by another party.

(the admission of a will is not a statement of the decedent that would open the door to rebuttal)

both parties can offer what dead person said

49
Q

Present Sense Impressions (FRE) or Spontaneous Statements (FL)

A

not allowed if judge determines that the circumstances
indicate a lack of trustworthiness, like:
- a lack of personal knowledge
- an improper motive

50
Q

Then-Existing Condition

A

allowed except when statement indicate a lack of trustworthiness, such as motive

> State of mind is allowed to show the intent of the declarant only

51
Q

Statement for Medical Diagnosis or Treatment

A

FRE: Permits the statement to be made by either the patent or by someone else on the
patient’s behalf

FL: Generally only permits statement by the patient
UNLESS: its someone who has legal responsibility for the patient + knowledge of their condition + patient is unable to communicate

*be careful w double hearsay
*Statements of victims of child sexual abuse identifying an abuser are NOT admissible as
statements for medical diagnosis or treatment

52
Q

Recorded Recollection

only the witnesses statements! secret journal vibez

A

FRE: lets in statements that were made or adopted by the witness even if not their own

FL: cant use adopted statements made by anyone other than the witness

(ex: statements written by insurance adjuster, police officer, or investigator that were then signed by the witness)

53
Q

Business Records Containing an Opinion or Diagnosis

A

FRE: sometimes there’s an opinion in the business record and that is fine

FL: lay and expert opinions/diagnoses in a business record only admitted if they’re made by the person who made the opinion

54
Q

Public Records and Reports

A

FRE: police reports not admissible

FL: in DUI cases when the observations relate to testing for alcohol or drugs

*careful bc may be excluded if they
violate the Confrontation Clause

55
Q

Use of a Learned Treatise

A

No learned treatise hearsay exception

Only allows an authoritative treatise to be used for impeachment during cross-examination of an expert witness if:
> That expert says the treatise or its author is authoritative; or
> The judge finds that the treatise or its author is authoritative by judicial notice

56
Q

Market Reports and Commercial Publications

A

Requires the court to find that the sources of the information and method of preparation justify admission

57
Q

Special Florida Hearsay Exceptions:
Child Victim Statements

A

statements of a child victim/developmental age of 16 or less will be admitted in child abuse/neglect/SA cases after there’s an in camera proceeding where the court finds the statement is reliable AND either:
> the child can testify
> if child unavailable then there’s corroborated evidence of the abuse

58
Q

Special Florida Hearsay Exceptions:
Elderly Person or Disabled Adult

A

Allows statements of an elderly or disabled adult victim in abuse, neglect, exploitation, assault, battery, or sex cases of the declarant

if the court finds in an in camera proceeding that the statement is reliable, and either:
> the victim can testify or
> if they’re unavailable then there’s corroborated evidence of the abuse

59
Q

Does FL have a catch all exception for hearsay?

A

No, Florida has NOT adopted a catch-all or residual exception for hearsay not otherwise covered by the rules

60
Q

Corpus Delicti Rule

A

D’s confession/other statements isn’t enough to prove a crime, there needs to be more evidence

exception: doesnt apply in sex abuse or money laundering cases

61
Q

true or false:
The Florida hearsay rules are subject to U.S. Supreme Court decisions regarding the
Confrontation Clause.

A

true

62
Q

Closed Circuit or Video-Recorded Testimony

A

victims/witnesses under the age of 18 or developmentally disabled can testify via either closed circuit or video-recorded testimony

subject to motion and specific findings that the child and defendant’s rights are protected

63
Q

In Florida, is the prosecution permitted to rebut with evidence of Defendant’s character trait when Defendant offers evidence of a victim’s character trait?

A

no

64
Q

When are learned treatises admissible

A

They are admissible only on cross-examination to attack the credibility of an expert (there is no exception to the hearsay rule for learned treatises in Florida).

65
Q

Are prior consistent statements admissible to rehabilitate the declarant’s credibility as a witness when attacked on another ground in Florida?

A

no

66
Q

Under the Florida recorded recollection hearsay rule, if the witness cannot remember making the record, then what must the witness testify about?

A

The witness must testify that
(1) the witness has a habit of recording such matters correctly, or
(2) the statement is correct because the witness would have been truthful in providing the statement.

67
Q

can The juvenile adjudication of any witness be used impeach that witness’s character for truthfulness?

A

no it cannot

68
Q

Extrinsic evidence of a non-party witness’s prior inconsistent statement is inadmissible to impeach that witness’s material testimony unless what?

(ex: bf got arrested, gf said i told u to not drink and drive. then at trial she is saying he wasnt drinking)

A

> the witness first has an opportunity to explain or deny the prior statement and the opposing party has an opportunity to interrogate the witness on it
or
the interests of justice otherwise require its admission.

If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

69
Q

True or False:
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.

A

true

70
Q

would a duplicate of a note and mortgage be admissible under best evidence?

A

mortgage yes/note no bc

Although the best evidence rule generally permits the admissibility of a duplicate to the same extent as an original, Florida specifically prohibits the use of a duplicate negotiable instrument.

71
Q

Can a witness’s character for truthfulness be impeached with evidence that the witness has been convicted of a crime?

A

yes a witness can be impeached with:
> evidence of conviction for any crime punishable by death or imprisonment for more than one year
OR
> any crime of dishonesty/false statement

72
Q

offer of proof

A

> preserves an appeal based on excluded evidence
its an oral or written explanation of the relevance and admissibility of the evidence made on the record.

73
Q

during medical diagnosis/treatment are statements of the cause for the injuries admissible under the medical exception?

A

yes if it is reasonably pertinent to diagnosis or treatment.

74
Q

true or false:
A statement that describes, but does not identify, a person does not qualify as non-hearsay under the statement-of-identification hearsay exclusion.

A

true

75
Q

are guilty verdicts admissible as evidence in civil cases?

A

No, a guilty verdict is rendered in court, it is an out-of-court statement with respect to a civil action

76
Q

remember that just bc something is adverse doesn’t mean its prejudicial

A
77
Q

is character evidence admissible in a civil case?

A

usually not to prove that the person acted in accordance with that character (in conformity)

78
Q

When is a spontaneous statement, (a statement describing or explaining an event or condition that is made while or immediately after the declarant perceived the event or condition,) inadmissible?

A

when it lacks trustworthiness

79
Q

what’s an example of improper expert witness’s opinion that’s not based on scientific, technical, or other specialized knowledge

A

if a cop is testifying as an expert and gives an opinion based on his personal observations on the day of the incident bc he isn’t relying on science for it

80
Q

Under Florida law, the State can impeach a witness with a prior conviction on cross examination by inquiring whether the witness has been convicted of a felony.

What happens if the witness denies?

what happens if they admit?

A

Denies:
If the witness denies that he has been convicted of such a crime, the State can then enter the record of any such conviction into evidence.

Admits:
If the witness admits to his prior conviction, the inquiry must end, and the witness is not required to disclose the crime he was convicted of

81
Q

what makes a statement testimonial?

A

A statement is testimonial if the declarant would reasonably expect it to be used in a prosecution.

(ex: lab report)

82
Q

when can judicial notice be taken?

A

(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 in a civil matter at any time during a proceeding, even on appeal.

83
Q

Can evidence of past sexual assault or child molestation committed by a defendant be admissible in criminal cases against that defendant?

A

Yes but only for subsequent charges of sexual assault or child molestation.

84
Q

what can party admissions be admitted for?

A

> impeachment
substantive evidence

85
Q

what is the intent hearsay exception called?

A

then existing state of mind

86
Q

can a witness’s credibility be bolstered?

A

no

87
Q

true or false:
a defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged, so long as the defendant’s character evidence is pertinent to the crime charged.

A
88
Q

can a witness that has been previously convicted of a felony disclose that on direct examination to mitigate ffects?

A

yes; a witness doesn’t have to wait for the adverse party to introduce evidence of his prior conviction to get ahead of it

*just cant bolster

89
Q

In Florida, a duplicate is generally admissible to the same extent as the original unless an exception (e.g., questionable authenticity, unfair circumstances) applies.

A
90
Q

contract terms arent hearsay bc they’re legally operative facts

A
91
Q

a statement made by an unavailable declarant is admissible as an exception if it is about the same subject as another statement offered by an adverse party in a case against the unavailable declarant.

A
92
Q

D can introduce evidence of his good character only through REPUTATION

A
93
Q

uses of prior inconsistent statements

A

(1) when a prior inconsistent statement is made under oath it can be used both substantively and to impeach

(2) A prior inconsistent statement may be used for impeachment if the witness has an opportunity to explain and the opposing party can examine the witness about the statement.

*watch out bc if they rested their case then they cant go back and cross

94
Q

a FL court can only take judicial notice of official stuff like from statutes, local laws, laws of other states, rules from administrative agencies

A

cant take notice of deeds bc that doesn’t come from the govt records; not official enough bc not verified by govt

95
Q

hearsay exception for medical diagnosis or treatment admissible when made:

(1) by the person seeking the diagnosis or treatment or
(2) by someone with knowledge of the facts + who is legally responsible for a person who is unable to communicate the facts

A

so a friend talking to a doctor for u wouldn’t work bc they’re not legally responsible for you

96
Q

a confidential communication between a client and an accountant for the purpose of obtaining or providing accounting assistance is privileged

A

same as attorney/client privilege

> needs to be asserted by the accountant

97
Q

in what type of cases is dying declaration ok?

A

MBE:
> homicide and civil

Florida:
> any case

(1) while reasonably believing that death was imminent an
(2) statement about the death

98
Q

all communications made during the course of mediation are confidential unless:

A

(1) all parties waive confidentiality, (2) there is a signed, written agreement, or
(3) the communication involves an ongoing, attempted, or upcoming criminal activity or threatens violence.

99
Q

what do you need to have against a rebuttable presumption?

A

contrary credible evidence

100
Q

habit evidence of an organization’s routine practice is ok without corroboration and the presence of an eyewitness.

A

But evidence of a person’s habit is not admissible as direct evidence unless it is corroborated by other evidence.

101
Q

In FL you can impeach a non-party witnesses’ testimony w extrinsic evidence of prior inconsistent statements if:

A

> The witness was given the chance to explain or deny the statement
The opposing party (the one not trying to impeach) is given the chance to question him
Witness denies making the statement or say they don’t remember
- Then you can bring in what they said before

102
Q

character evidence is not admissible in civil cases unless

A

proving an essential element of a claim/defense

> defamation, neg hiring, neg entrustment, child custody

103
Q

are newspaper and periodicals self-authenticating?

A

yes

104
Q

you can’t impeach a witness with extrinsic evidence on a collateral/irrelevant matter

A

otherwise yes

105
Q

attorney client privilege doesn’t apply to confidential communications that are now relevant to a dispute between parties claiming through the same deceased client

A

cus ur the tie breaker

106
Q

a learned treatise is inadmissible hearsay unless what?

A

its being used during cross-examination to attack an expert’s credibility
and established as authoritative

107
Q

testimony through closed circuit tv ok when:

A

(1) vic/witness is a minor or has intellectual disability
(2) court finds witness will suffer at least moderate emotional harm bc of of Ds presence

107
Q

under best evidence rule, a duplicate is ok if

A

> there’s no Q about its authenticity
it wouldn’t be unfair to admit only the duplicate

107
Q

during an inquiry a juror cant testify about anything that went on inside the jury room

A

just things like outside influence, mistake on verdict form, and extraneous prejudicial info

108
Q

If D opens the door about himself w evidence of his good character then OC can rebut by attacking his character

A

reputation evidence

109
Q

> offers to compromise/settle
statements during negotiations
offer to pay medical expenses

A

all inadmissible

Florida Distinctions (17 decks)

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