FL - Evidence

Question 1

EVIDENCE

Preliminary Questions

Answer 1

(1)  Except as provided in subsection (2), the court shall determine preliminary questions concerning the (i) qualification of a person to be a witness, (ii) the existence of a privilege, (iii) or the admissibility of evidence.
(2)  When the relevancy of evidence depends upon the existence of a preliminary fact, the court shall admit the proffered evidence when there is prima facie evidence sufficient to support a finding of the preliminary fact. If prima facie evidence is not introduced to support a finding of the preliminary fact, the court may admit the proffered evidence subject to the subsequent introduction of prima facie evidence of the preliminary fact.
(3)  Hearings on the admissibility of confessions shall be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be similarly conducted when the interests of justice require or when an accused is a witness, if he or she so requests.

Question 2

EVIDENCE

Summing Up and Comment By Judge

Answer 2

A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.

“Not much weight”

“Did the right thing”

Question 3

EVIDENCE

Limited Admissibility

Answer 3

When evidence that is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose, is admitted, the court, upon request, shall restrict such evidence to its proper scope and so inform the jury at the time it is admitted.

Question 4

EVIDENCE

Introduction of related writings or recorded statements. (Fairness)

Answer 4

(1)  When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.
(2)  The report of a court reporter, when certified to by the court reporter as being a correct transcript of the testimony and proceedings in the case, is prima facie a correct statement of such testimony and proceedings.

Question 5

EVIDENCE

Matters which MUST be Judicially Noticed

Answer 5

1)  Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States.
(2)  Florida rules of court that have statewide application, its own rules, and the rules of United States courts adopted by the United States Supreme Court.
(3)  Rules of court of the United States Supreme Court and of the United States Courts of Appeal.

“Rules, Statutes, Constitution”

Question 6

EVIDENCE

Matters which MAY be Judicially Noticed

Answer 6

A court may take judicial notice of the following matters, to the extent that they are not embraced within s. 90.201:

***(1) Special, local, and private acts and resolutions of the Congress of the United States and of the Florida Legislature.

***(2) Decisional, constitutional, and public statutory law of every OTHER STATE, territory, and jurisdiction of the United States.

(3) Contents of the Federal Register

***(4) Laws of FOREIGN nations and of an organization of nations.

(5)  Official actions of the legislative, executive, and judicial departments of the United States and of any state, territory, or jurisdiction of the United States.
(6)  Records of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.
(7)  Rules of court of any court of this state or of any court of record of the United States or of any other state, territory, or jurisdiction of the United States.
(8)  Provisions of all municipal and county charters and charter amendments of this state, provided they are available in printed copies or as certified copies.
(9)  Rules promulgated by governmental agencies of this state which are published in the Florida Administrative Code or in bound written copies.
(10)  Duly enacted ordinances and resolutions of municipalities and counties located in Florida, provided such ordinances and resolutions are available in printed copies or as certified copies.

***(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.

           (1-95 is a highway) 

***(12) Facts that are not subject to dispute because they are capable of accurate and ready determination by resort to SOURCES whose accuracy cannot be questioned.

            (almanac, newspaper, price of stock, sun, rain)

(13) Official seals of governmental agencies and departments of the United States and of any state, territory, or jurisdiction of the United States.

Question 7

EVIDENCE

Compulsory judicial notice upon request

Answer 7

A court shall take judicial notice of any matter in s. 90.202 when a party requests it and:

(1)  Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request.
(2)  Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

Question 8

EVIDENCE

Statements expressing sympathy; admissibility; definitions

Answer 8

(1)  As used in this section:
(a)  “Accident” means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.
(b)  “Benevolent gestures” means actions that convey a sense of compassion or commiseration emanating from human impulses.
(c)  “Family” means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half-brother, half-sister, adopted child of parent, or spouse’s parent of an injured party.
(2)  The PORTION of statements, writings, or benevolent gestures expressing 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 to the family of that person shall be INADMISSIBLE as evidence in a CIVIL action. A STATEMENT OF FAULT, however, which is part of, or in addition to, any of the above shall be ADMISSIBLE pursuant to this section.

Question 9

EVIDENCE

Exclusion on grounds of prejudice or confusion

Answer 9

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. This section shall not be construed to mean that evidence of the existence of available third-party benefits is inadmissible.

Cant bring in evidence that you had insurance to show liability

Question 10

EVIDENCE

Character evidence; when admissible

Answer 10

(1)  CHARACTER EVIDENCE GENERALLY.—Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:
(a)  CHARACTER OF ACCUSED—Evidence of a pertinent trait of character OFFERED BY AN ACCUSED (opens door), or by the prosecution to rebut the trait (tried for homicide, show peaceful).
(b)  CHARACTER OF VICTIM
1.  Except as provided in s. 794.022, evidence of a pertinent trait of character of the victim of the crime OFFERED BY AN ACCUSED, or by the prosecution to rebut the trait; or
2.  Evidence of a character trait of peacefulness of the victim offered by the prosecution in a HOMICIDE case to rebut evidence that the victim was the aggressor (SELF DEFENSE SAYS VICTIM IS AGGRESSOR AND VICTIM IS DEAD HERE. (REPUTATION ONLY – NOT OPINION – IN FL GOSSIP IS GOOD)
(c)  CHARACTER OF WITNESS—Evidence of the character of a witness, as provided in ss. 90.608-90.610.

(2)  OTHER CRIMES, WRONGS, OR ACTS.— (MIMIC)
(a)  Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, or ABSENCE OF MISTAKE OR ACCIDENT, but it is INADMISSABLE when the evidence is relevant solely to prove bad character or propensity.

(b) 1. In a criminal case in which the defendant is charged with a crime involving CHILD MOLESTATION, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is ADMISSABLE and may be considered for its bearing on any matter to which it is relevant.
2.  For the purposes of this paragraph, the term “child molestation” means conduct proscribed by s. 787.025(2)(c), s. 787.06(3)(g), former s. 787.06(3)(h), s. 794.011, excluding s. 794.011(10), s. 794.05, former s. 796.03, former s. 796.035, s. 800.04, s. 827.071, s. 847.0135(5), s. 847.0145, or s. 985.701(1) when committed against a person 16 years of age or younger.

(c)1. In a criminal case in which the defendant is charged with a SEXUAL OFFENSE, evidence of the defendant’s commission of other crimes, wrongs, or acts involving a sexual offense is ADMISSABLE and may be considered for its bearing on any matter to which it is relevant.

Question 11

EVIDENCE

Methods of Proving Character

Answer 11

(1)  REPUTATION.—When evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation.
(2)  SPECIFIC INSTANCES OF CONDUCT.—When character or a trait of character of a person is an ESSENTIAL ELEMENT of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.

* NO OPINION IN FL ***

Question 12

EVIDENCE

Routine Practice

Business Organizations and Humans

Answer 12

Evidence of the routine practice of an ORGANIZATION, WHETHER CORROBORATED OR NOT and REGARDLESS OF THE PRESENCE OF EYEWITNESSES, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.

Examples: Receipt, phone record

HUMAN HABITS - Need corroboration (very little)

Question 13

EVIDENCE

Subsequent Remedial Measures

Answer 13

Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is NOT ADMISSIBLE TO PROVE NEGLIGENCE, THE EXISTENCE OF PRODUCT DEFECT, OR CULPABLE CONDUCT IN CONNECTION WITH THE EVENT.

This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as PROVING OWNERSHIP, CONTROL, or the FEASIBILITY OF PRECAUTIONARY MEASURES, IF CONTROVERTED, or IMPEACHMENT.

Question 14

EVIDENCE

Compromise and offers to compromise

Answer 14

Evidence of an offer to compromise a claim WHICH WAS DISPUTED AS TO VALIDITY OR AMOUNT, as well as any relevant conduct or statements made IN NEGOTIATIONS concerning a compromise, is INADMISSIBLE to prove LIABILITY or absence of liability for the claim or its value.

Question 15

EVIDENCE

Payment of Medical or Similar Expenses

Answer 15

Evidence of furnishing, or offering or promising to pay, medical or hospital expenses or other damages occasioned by an injury or accident is INADMISSIBLE to prove LIABILITY for the injury or accident.

Question 16

EVIDENCE

Offer to Plead Guilty; Nolo Contendere; Withdrawn Please of Guilty

Answer 16

Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is INADMISSIBLE in any civil or criminal proceeding. Evidence of STATEMENTS made in connection with any of the pleas or offers is INADMISSIBLE, except when such statements are offered in a prosecution under chapter 837.

Question 17

EVIDENCE

Privileges recognized only as provided.

Answer 17

Except as otherwise provided by this chapter, any other statute, or the Constitution of the United States or of the State of Florida, no person in a legal proceeding has a privilege to:

(1)  Refuse to be a witness.
(2)  Refuse to disclose any matter.
(3)  Refuse to produce any object or writing.
(4)  Prevent another from being a witness, from disclosing any matter, or from producing any object or writing.

Question 18

EVIDENCE

Psychotherapist-patient privilege

Answer 18

(1)  For purposes of this section: (BROADER AND STRONGER THAN DR/PATIENT)
(a)  A “psychotherapist” is:

1.  A person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
2.  A person licensed or certified as a psychologist under the laws of any state or nation, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
3.  A person licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under the laws of this state, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
4.  Treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, or chapter 397, of facilities designated by the Department of Children and Families pursuant to chapter 394 as treatment facilities, or of facilities defined as community mental health centers pursuant to s. 394.907(1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; or
5.  An advanced practice registered nurse licensed under s. 464.012, whose primary scope of practice is the diagnosis or treatment of mental or emotional conditions, including chemical abuse, and limited only to actions performed in accordance with part I of chapter 464.

(b)  A “patient” is a person who consults, or is interviewed by, a psychotherapist for purposes of diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction.
(c)  A communication between psychotherapist and patient is “confidential” if it is not intended to be disclosed to third persons other than:
1.  Those persons present to further the interest of the patient in the consultation, examination, or interview.
2.  Those persons necessary for the transmission of the communication.
3.  Those persons who are participating in the diagnosis and treatment under the direction of the psychotherapist.
(2)  A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
(3)  The privilege may be claimed by:
(a)  The patient or the patient’s attorney on the patient’s behalf.
(b)  A guardian or conservator of the patient.
(c)  The personal representative of a deceased patient.
(d)  The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.
(4)  There is no privilege under this section:
(a)  For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.
(b)  For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
(c)  For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.

Question 19

EVIDENCE

Husband-wife privilege (CONFIDENTIAL MARITAL COMMUNICATIONS)

Answer 19

(1)  A spouse has a privilege DURING AND AFTER the marital relationship to refuse to disclose, and to PREVENT ANOTHER from disclosing, communications (NOT OBSERVATIONS) which were INTENDED TO BE MADE IN CONFIDENCE between the spouses WHILE they were husband and wife.
(2)  The privilege may be claimed by EITHER spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

(3)  There is NO PRIVILEGE under this section:
(a)  In a proceeding brought by or on behalf of one spouse against the other spouse.
(b)  In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.
(c)  In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

**Eavesdropping doesnt ruin unless so obviously negligent)

Question 20

EVIDENCE

Privilege with respect to communications to clergy

Answer 20

(1)  For the purposes of this section:
(a)  A “member of the clergy” is a priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed so to be by the person consulting him or her.
(b)  A communication between a member of the clergy and a person is “confidential” if made PRIVATELY for the purpose of seeking SPIRITUAL COUNSEL and ADVICE from the member of the clergy in the USUAL COURSE of his or her practice or discipline and NOT INTENDED for further disclosure EXCEPT to other persons PRESENT in furtherance of the communication.
(2)  A person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.

(3)  The privilege may be claimed by:
(a)  The person.
(b)  The guardian or conservator of a person.
(c)  The PERSONAL REPRESENTATIVE of a deceased person.
(d)  The member of the clergy, on behalf of the person. The member of the clergy’s authority to do so is presumed in the absence of evidence to the contrary.

Question 21

EVIDENCE

Who May Impeach? How?

Answer 21

Any party, including the party calling the witness, may attack the credibility of a witness by:

(1)  Introducing statements of the witness which are inconsistent with the witness’s present testimony.
(2)  Showing that the witness is biased.
(3)  Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610.
(4)  Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified.
(5)  Proof by other witnesses that material facts are not as testified to by the witness being impeached.

Question 22

EVIDENCE

Character of witness as impeachment

Answer 22

A party may attack or support the credibility of a witness, including an accused, by evidence in the form of REPUTATION, except that:

(1)  The evidence may refer only to character relating to truthfulness.
(2)  Evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence.

Question 23

EVIDENCE

Conviction of certain crimes as impeachment

Answer 23

(1)  A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime IF the crime was PUNISHABLE by death or IMPRISONMENT IN EXCESS OF 1 YEAR under the law under which the witness was convicted, or if the crime involved DISHONEST or a FALSE STATEMENT regardless of the punishment, with the following exceptions:
(a)  Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.
(b)  Evidence of JUVENILE adjudications are inadmissible under this subsection.
(2)  The pendency of an appeal or the granting of a pardon relating to such crime does not render evidence of the conviction from which the appeal was taken or for which the pardon was granted inadmissible. Evidence of the pendency of the appeal is admissible.
(3)  Nothing in this section affects the admissibility of evidence under s. 90.404 or s. 90.608.

Question 24

EVIDENCE

Refreshing the Memory of A Witness

Answer 24

When a witness uses a WRITING OR OTHER ITEM to REFRESH memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of an appeal. If a writing or other item is not produced or delivered pursuant to order under this section, the testimony of the witness concerning those matters shall be stricken.

Question 25

EVIDENCE

Prior Statements of Witnesses

Answer 25

(1)  When a witness is examined concerning the witness’s prior written statement or concerning an oral statement that has been reduced to writing, the court, on motion of the adverse party, shall order the statement to be shown to the witness or its contents disclosed to him or her.
(2)  EXTRINSIC evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is ADMISSIBLE. This subsection is not applicable to admissions of a party-opponent as defined in s. 90.803(18).

We’re Polite in FL – we let you discuss it first, then we will use it against you*

Question 26

EVIDENCE

Calling witnesses by the court

Answer 26

(1)  The court may call witnesses whom all parties may cross-examine.
(2)  When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.

Question 27

EVIDENCE

HEARSAY (NOT HEARSAY)

Answer 27

(1)  The following definitions apply under this chapter:
(a)  A “statement” is:
1.  An oral or written assertion; or
2.  Nonverbal conduct of a PERSON if it is intended by the person as an assertion.

(b)  A “declarant” is a person who makes a statement.
(c)  “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(2)  A statement is NOT hearsay if the DECLARANT TESTIFIES at the trial or hearing AND is subject to CROSS EXAMINATION concerning the statement and the statement is:
(a)  Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(b)  Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c)  One of identification of a person made after perceiving the person. (LINEUP)

Question 28

EVIDENCE

Hearsay Exceptions – AVAILABILITY OF DECLARATION IMMATERIAL (PRESENCE NOT REQUIRED)

Answer 28

(1)  SPONTANEOUS STATEMENT.—A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness. (commentator; 911 call)
(2)  EXCITED UTTERANCE.—A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (!)

(3)  THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.—
(a)  A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1.  Prove the declarant’s STATE OF MIND, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2.  Prove or explain acts of subsequent conduct of the declarant.
(b)  However, this subsection does not make admissible:
1.  An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will.
2.  A statement made under circumstances that indicate its lack of trustworthiness.

(4)  STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT.—Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts (PARENT), which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment. **(CAUSE DOESN’T COME IN)
(5)  RECORDED RECOLLECTION.—A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A PARTY may READ into evidence(jury can hear) a MEMORANDUM OR RECORD when it is admitted, but NO such memorandum or record is admissible as AN EXHIBIT unless offered by an ADVERSE PARTY (full document).

(6)  RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.—
(a)  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made AT OR NEAR THE TIME by, or from information transmitted by, a PERSON WITH KNOWLEDGE, if kept in the course of a REGULARLY CONDUCTED BUSINESS ACTIVITY and if it was the REGULAR PRACTICE of that business activity to make such memorandum, report, record, or data compilation, all as SHOWN BY THE TESTIMONEY OF THE CUSTODIAN OR OTHER QUALIFIED WITNESS, or as shown by a CERTIFICATION or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(b)  Evidence in the form of an opinion or diagnosis is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.
(c)  A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.

(7)  ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY.—Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness.
(8)  PUBLIC RECORDS AND REPORTS.—Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.
(9)  RECORDS OF VITAL STATISTICS.—Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if a report was made to a public office pursuant to requirements of law. However, nothing in this section shall be construed to make admissible any other marriage of any party to any cause of action except for the purpose of impeachment as set forth in s. 90.610.
(10)  ABSENCE OF PUBLIC RECORD OR ENTRY.—Evidence, in the form of a certification in accord with s. 90.902, or in the form of testimony, that diligent search failed to disclose a record, report, statement, or data compilation or entry, when offered to prove the absence of the record, report, statement, or data compilation or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation would regularly have been made and preserved by a public office and agency.
(11)  RECORDS OF RELIGIOUS ORGANIZATIONS.—Statements of births, marriages, divorces, deaths, parentage, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.
(12)  MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES.—Statements of facts contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, when such statement was certified by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and when such certificate purports to have been issued at the time of the act or within a reasonable time thereafter.

*****(13) FAMILY RECORDS.—Statements of fact concerning personal or family history in family BIBLES, charts, engravings in RINGS, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14)  RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY.—The record of a document purporting to establish or affect an interest in property, as proof of the contents of the original recorded or filed document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording or filing of the document in the office.
(15)  STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY.—A statement contained in a document purporting to establish or affect an interest in property, if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16)  STATEMENTS IN ANCIENT DOCUMENTS.—Statements in a document in existence 20 years or more, the AUTHENTICITY of which is established.
(17)  MARKET REPORTS, COMMERCIAL PUBLICATIONS.—Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations if, in the opinion of the court, the sources of information and method of preparation were such as to justify their admission.

(18)  ADMISSIONS.—A statement that is offered against a party and is:
(a)  The party’s own statement in either an individual or a representative capacity;
(b)  A statement of which the party has manifested an adoption or belief in its truth;
(c)  A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d)  A statement by the party’s AGENT or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
(e)  A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

(19) REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY.—Evidence of reputation:
(a) Among members of a person’s family by blood, adoption, or marriage;
(b) Among a person’s associates; or
(c) In the community,
concerning a person’s birth, adoption, marriage, divorce, death, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20)  REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY.—Evidence of reputation:
(a)  In a community, arising before the controversy about the boundaries of, or customs affecting lands in, the community.
(b)  About events of general history which are important to the community, state, or nation where located.

***(21) REPUTATION AS TO CHARACTER.—Evidence of reputation of a person’s character among associates or in the community.

*****(22) FORMER TESTIMONY.—Former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to s. 90.402 or s. 90.403.

(23)  HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.—
(a)  Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1.  The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
2.  The child either:
a.  Testifies; or
b.  Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).
(b)  In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c)  The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

(24)  HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR DISABLED ADULT.—
(a)  Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by an elderly person or disabled adult, as defined in s. 825.101, describing any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1.  The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the elderly person or disabled adult, the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, and any other factor deemed appropriate; and
2.  The elderly person or disabled adult either:
a.  Testifies; or
b.  Is unavailable as a witness, provided that there is corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the elderly person’s or disabled adult’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1).
(b)  In a criminal action, the defendant shall be notified no later than 10 days before the trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the elderly person’s or disabled adult’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c)  The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

Question 29

EVIDENCE

Hearsay (Declarant MUST BE Unavailable – i.e., PRESENCE REQUIRED)

Answer 29

(1) DEFINITION OF UNAVAILABILITY.—“Unavailability as a witness” means that the declarant:
(a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;
(b) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;
(c) Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial;
(d) Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or
(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.
However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.

(2)  HEARSAY EXCEPTIONS.—The following are not excluded under s. 90.802, provided that the DECLARANT IS UNAVAIBLE as a witness:
(a)  Former testimony.—Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(b)  Statement under belief of impending death.—In a CIVIL OR CRIMINAL trial, a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death. (DYING DECLARATION; on MBE just Homicide)
(c)  Statement against interest.—A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is INADMISSABLE, unless CORRORBOTATING circumstances show the trustworthiness of the statement.
(d)  Statement of personal or family history.—A statement concerning the declarant’s own birth, adoption, marriage, divorce, parentage, ancestry, or other similar fact of personal or family history, including relationship by blood, adoption, or marriage, even though the declarant had no means of acquiring personal knowledge of the matter stated.
(e)  Statement by deceased or ill declarant similar to one previously admitted.—In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence. (DEAD MAN STATUTE)
(f)  Statement offered against a party that wrongfully caused the declarant’s unavailability.—A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.

Question 30

EVIDENCE

Hearsay within Hearsay

Answer 30

Hearsay within hearsay.—

Hearsay within hearsay is not excluded under s. 90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.

Question 31

EVIDENCE

Exclusion of Witnesses (cant hear)

Answer 31

(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).

(2) A witness may not be excluded if the witness is:
(a) A party who is a natural person.
(b) In a civil case, an officer or employee of a party that is not a natural person. The party’s attorney shall designate the officer or employee who shall be the party’s representative.
(c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.
**(d) In a CRIMINAL case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.
History.—s. 2, ch. 90-174; s. 1, ch. 92-107; s. 493, ch. 95-147.

Question 32

EVIDENCE

Opinion of Lay Witnesses

Answer 32

If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1)  The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2)  The opinions and inferences do not require a special knowledge, skill, experience, or training.

** DRIVING SPEED, DRINKING, HANDWRITING (If previously familiar)

Question 33

EVIDENCE

Testimony by Expertss

Answer 33

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

Question 34

EVIDENCE

Basis of Opinion Testimony by Experts

Answer 34

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert AT OR BEFORE TRIAL. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

Question 35

EVIDENCE

Opinion on Ultimate Issue

Answer 35

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.

Question 36

EVIDENCE

Disclosure of facts or data underlying expert opinion

Answer 36

(1)  Unless otherwise required by the court, an expert may testify in terms of opinion or inferences and give reasons without prior disclosure of the underlying facts or data. On CROSS EXAMINATION the expert shall be required to specify the facts or data. (** CAN PROBE)
(2)  Prior to the witness giving the opinion, a party against whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for the witness’s opinion. If the party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.

Question 37

EVIDENCE

Authoritativeness of literature for use in cross-examination

Answer 37

Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.