FL Evidence Flashcards
can inadmissible material be considered in prelim Qs of admissibility?
no
What cant a judge do after the Presentation of Evidence
A Florida judge CANNOT:
> Summarize or comment the evidence;
Comment on a witnesses’ credibility
Comment on the guilt of the accused
What legislative facts can a FL judge take judicial notice of
> MUST take notice of U.S./FL statewide laws
MAY take notice of other laws (not state, foreign etc.)
Do FL judges have to take judicial notice of adjudicative fact?
> 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
When the court does take judicial notice of a fact, what do they instruct the jury?
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
Sometimes witnesses may be excluded from the court during
the testimony of other witnesses.
In FL, who cannot be excluded?
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)
what are the 3 types of presumptions in FL
(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)
How can Character Evidence be proven when admissible?
Reputation only, not opinion testimony
what can the prosecution do after the defendant attacks the character of the victim? who does the door open to?
The prosecutor can use reputation evidence of the victim’s character to rebutt
> the door DOES NOT open for character evidence on defendant
in a case where character is an essential element of a charge/claim/defense, what is the required evidence standard of specific acts?
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)
Reverse Williams Rule:
If D wants to claim someone else did it, by showing specific acts, what’s the evidentiary standard to meet?
D say: no look he did it !!!
the acts are strikingly similar !!!!
Routine or Habit Evidence
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
Child as Witness
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
Interpreters
Interpreters may be used for any witness who needs assistance understanding or communicating
Impeachment:
Character for Truthfulness
Can’t use specific acts of untruthfulness on cross-examination, unless
they amount to a conviction
how can an attacked witness be rehabilitated
Only by a reputation witness
Use of Prior Convictions to impeach
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
Impeachment:
pardons
you can use convictions that have been pardoned
Impeachment:
Juvenile convictions
CANT use of juvenile convictions for impeachment
Impeachment:
Procedure in Florida for use of prior convictions
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
Impeachment:
Prior Inconsistent Statements of the Witness
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
Impeachment:
Prior Inconsistent Statements of the Witness through extrinsic evdience
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
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.
true
When is lay Witnesses Opinion Testimony 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
can an expert witness give an opinion on D’s mental state?
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)
Can A qualified expert opinion can be given as to negligence, even if the opinion goes to the ultimate issue?
yes
Tangible Evidence
can you let a picture in instead of the property when proving theft of that item
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
Best Evidence Rule
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
Under the Best Evidence Rule when will other evidence of the originals be admissible in lieu of the originals?
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.
Tangible Evidence:
FL Business Records
> 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
how many privileges does FL have listed in the code
10
Florida Husband-Wife Privilege (Marital Communications Privilege)
> 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
Does FL have the Spousal Immunity Privilege?
No, FL only recognizes the Marital Communications Privilege
aka Husband-wife privilege
Florida Lawyer-Client Privilege
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
Florida Physician-Patient Privilege
FRE + doesn’t apply when its the condition of the patient is at issue or in malpractice cases by patient against the doctor
Florida Psychotherapist-Patient Privilege
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
Other privileges
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
Are Statements made during mediation confidential?
yes unless waived by all parties
are the FL mandatory accident reports admissible in court
No, excluded in both civil and criminal cases
we dont want ur little cop report
Are statements of sympathy admissible?
No, but but statements indicating fault ARE admissible
What type of privilege do victims of sexual assault or domestic violence have
Privilege to:
> not disclose comm. with a sexual assault or DV counselor
> Can prevent the counselor from disclosing such communications
FL Rape Shield
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
Admissions Exception
(statement by party opponent)
same as FRE + D can use statements made by govt agents against the prosecution
Co-Conspirator Statements
we dont trust words, first action that there was conspiracy
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
James hearing
The hearing where the judge determines whether a
conspiracy exists for the purpose of admitting the statements by co-conspirators/defendant
Declarant Unavailable:
Former testimony
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)
Dying Declaration
FRE: applies only homicide and civil
FL: applies in ALL cases
Florida—Statement by Deceased or Ill Declarant Similar to One Previously Admitted
> 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
Present Sense Impressions (FRE) or Spontaneous Statements (FL)
not allowed if judge determines that the circumstances
indicate a lack of trustworthiness, like:
- a lack of personal knowledge
- an improper motive
Then-Existing Condition
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
Statement for Medical Diagnosis or Treatment
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
Recorded Recollection
only the witnesses statements! secret journal vibez
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)
Business Records Containing an Opinion or Diagnosis
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
Public Records and Reports
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
Use of a Learned Treatise
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
Market Reports and Commercial Publications
Requires the court to find that the sources of the information and method of preparation justify admission
Special Florida Hearsay Exceptions:
Child Victim Statements
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
Special Florida Hearsay Exceptions:
Elderly Person or Disabled Adult
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
Does FL have a catch all exception for hearsay?
No, Florida has NOT adopted a catch-all or residual exception for hearsay not otherwise covered by the rules
Corpus Delicti Rule
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
true or false:
The Florida hearsay rules are subject to U.S. Supreme Court decisions regarding the
Confrontation Clause.
true
Closed Circuit or Video-Recorded Testimony
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
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?
no
When are learned treatises admissible
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).
Are prior consistent statements admissible to rehabilitate the declarant’s credibility as a witness when attacked on another ground in Florida?
no
Under the Florida recorded recollection hearsay rule, if the witness cannot remember making the record, then what must the witness testify about?
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.
can The juvenile adjudication of any witness be used impeach that witness’s character for truthfulness?
no it cannot
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)
> 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.
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.
true
would a duplicate of a note and mortgage be admissible under best evidence?
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.
Can a witness’s character for truthfulness be impeached with evidence that the witness has been convicted of a crime?
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
offer of proof
> 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.
during medical diagnosis/treatment are statements of the cause for the injuries admissible under the medical exception?
yes if it is reasonably pertinent to diagnosis or treatment.
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.
true
are guilty verdicts admissible as evidence in civil cases?
No, a guilty verdict is rendered in court, it is an out-of-court statement with respect to a civil action
remember that just bc something is adverse doesn’t mean its prejudicial
is character evidence admissible in a civil case?
usually not to prove that the person acted in accordance with that character (in conformity)
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?
when it lacks trustworthiness
what’s an example of improper expert witness’s opinion that’s not based on scientific, technical, or other specialized knowledge
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
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?
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
what makes a statement testimonial?
A statement is testimonial if the declarant would reasonably expect it to be used in a prosecution.
(ex: lab report)
when can judicial notice be taken?
(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.
Can evidence of past sexual assault or child molestation committed by a defendant be admissible in criminal cases against that defendant?
Yes but only for subsequent charges of sexual assault or child molestation.
what can party admissions be admitted for?
> impeachment
substantive evidence
what is the intent hearsay exception called?
then existing state of mind
can a witness’s credibility be bolstered?
no
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.
can a witness that has been previously convicted of a felony disclose that on direct examination to mitigate ffects?
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
In Florida, a duplicate is generally admissible to the same extent as the original unless an exception (e.g., questionable authenticity, unfair circumstances) applies.
contract terms arent hearsay bc they’re legally operative facts
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.
D can introduce evidence of his good character only through REPUTATION
uses of prior inconsistent statements
(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
a FL court can only take judicial notice of official stuff like from statutes, local laws, laws of other states, rules from administrative agencies
cant take notice of deeds bc that doesn’t come from the govt records; not official enough bc not verified by govt
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
so a friend talking to a doctor for u wouldn’t work bc they’re not legally responsible for you
a confidential communication between a client and an accountant for the purpose of obtaining or providing accounting assistance is privileged
same as attorney/client privilege
> needs to be asserted by the accountant
in what type of cases is dying declaration ok?
MBE:
> homicide and civil
Florida:
> any case
(1) while reasonably believing that death was imminent an
(2) statement about the death
all communications made during the course of mediation are confidential unless:
(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.
what do you need to have against a rebuttable presumption?
contrary credible evidence
habit evidence of an organization’s routine practice is ok without corroboration and the presence of an eyewitness.
But evidence of a person’s habit is not admissible as direct evidence unless it is corroborated by other evidence.
In FL you can impeach a non-party witnesses’ testimony w extrinsic evidence of prior inconsistent statements if:
> 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
character evidence is not admissible in civil cases unless
proving an essential element of a claim/defense
> defamation, neg hiring, neg entrustment, child custody
are newspaper and periodicals self-authenticating?
yes
you can’t impeach a witness with extrinsic evidence on a collateral/irrelevant matter
otherwise yes
attorney client privilege doesn’t apply to confidential communications that are now relevant to a dispute between parties claiming through the same deceased client
cus ur the tie breaker
a learned treatise is inadmissible hearsay unless what?
its being used during cross-examination to attack an expert’s credibility
and established as authoritative
testimony through closed circuit tv ok when:
(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
under best evidence rule, a duplicate is ok if
> there’s no Q about its authenticity
it wouldn’t be unfair to admit only the duplicate
during an inquiry a juror cant testify about anything that went on inside the jury room
just things like outside influence, mistake on verdict form, and extraneous prejudicial info
If D opens the door about himself w evidence of his good character then OC can rebut by attacking his character
reputation evidence
> offers to compromise/settle
statements during negotiations
offer to pay medical expenses
all inadmissible
