FL Evidence Distinctions

Question 1

In a criminal case in Florida, evidence of a defendant’s prior act of misconduct that is relevant to an issue other than his character (e.g., to prove motive, intent, etc.) is __________.

A Not admissible

B Admissible, regardless of whether the defendant received notice

C Admissible only if the defendant received reasonable notice upon his request

D Admissible only if the defendant received 10 days’ notice prior to trial

Answer 1

D Admissible only if the defendant received 10 days’ notice prior to trial

In a criminal case in Florida, evidence of specific acts of misconduct that are relevant to an issue other than the defendant’s character is admissible, but the prosecution must give the defendant 10 days’ notice of its intent to use the other crimes or acts as evidence. (In contrast, the Federal Rules state that upon request by the accused, the prosecution must provide reasonable notice prior to trial of the general nature of any such evidence that the prosecution intends to introduce at trial.)

Question 2

In Florida, when a court takes judicial notice of a fact, it is __________.

A Conclusive

B Within the court’s discretion to determine whether it is conclusive

C Conclusive in a civil case, but not in a criminal case

D Not conclusive

Answer 2

B Within the court’s discretion to determine whether it is conclusive

In Florida, when a court takes judicial notice of a fact, it is within the court’s discretion to determine whether it is conclusive. (Under the Federal Rules, however, a judicially noticed fact is conclusive in a civil case but not in a criminal case. In a federal criminal trial, the judge must instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noted.)

Question 3

In Florida, a witness can be impeached based on all of the following, EXCEPT:

A A prior act of misconduct (not resulting in a conviction) that is probative of truthfulness.

B Bias.

C A prior criminal conviction.

D Reputation testimony regarding the witness’s untruthfulness.

Answer 3

A A prior act of misconduct (not resulting in a conviction) that is probative of truthfulness.

In Florida, witnesses cannot be impeached with specific instances of misconduct not resulting in a conviction. (This is contrary to the Federal Rule, which allows a witness to be impeached on cross-examination with prior instances of misconduct that are probative of truthfulness.) All of the other listed impeachment methods are permissible.

Question 4

Tom told his neighbor that he had seen Sean kill a man at 9:00 pm, but then testifies during Sean’s murder trial that the homicide occurred at 11:00 pm. Which of the following best describes the prosecution’s ability to call the neighbor to testify as to Tom’s prior inconsistent statement?

A Before the neighbor is called to testify, Tom must be asked to explain or deny the statement, and the neighbor’s testimony is then admissible even if Tom admits the inconsistency

B The prosecution is free to call the neighbor to testify about Tom’s inconsistent statement, and is not required to ask Tom to explain or deny the statement

C Before the neighbor is called to testify, Tom must be asked to explain or deny the statement, and he must deny it or remain silent

D At any time before or after the neighbor’s testimony, Tom must be asked to explain or deny the statement

Answer 4

C Before the neighbor is called to testify, Tom must be asked to explain or deny the statement, and he must deny it or remain silent

The prosecution may introduce the neighbor’s testimony regarding Tom’s prior inconsistent statement if he is first asked to explain or deny it, and he denies it or remains silent. 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 given an opportunity to question the witness on it, or the interest of justice otherwise requires. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of the statement is admissible. (In contrast, under the Federal Rules, the witness may be asked to explain or deny the inconsistent statement at any time–even after the introduction of extrinsic evidence.) Florida also requires that a prior statement that is written must be shown to the witness who wrote it before he can be examined about it.

Question 5

In Florida, an admission by a party-opponent is ___________.

A Inadmissible hearsay

B An exception to the hearsay rule, regardless of the declarant’s availability

C Considered nonhearsay, but only if the declarant is unavailable

D Considered nonhearsay, regardless of the declarant’s availability

Answer 5

B An exception to the hearsay rule, regardless of the declarant’s availability

In Florida, an admission by a party-opponent (i.e., a statement made by a party and offered against that party) is an exception to the hearsay rule and is admissible regardless of the declarant’s availability. (The Federal Rules refer to this type of statement as an “opposing party’s statement” and treat it as nonhearsay.)

Question 6

In Florida, the hearsay exception for dying declarations applies in __________.

A Civil cases and homicide cases only

B Homicide cases only

C Civil cases only

D All criminal and civil cases

Answer 6

D All criminal and civil cases

In Florida, dying declarations are admissible in all civil and criminal cases. (The federal exception applies only to homicide cases and civil cases.)

Question 7

In a breach of contract action, Kent seeks to introduce into evidence a letter that he alleges was written by Alex, and which demonstrates that Alex accepted Kent’s offer to buy Mustang, a racehorse.

Which of the following is an incorrect statement regarding how Kent may authenticate the letter?

(A) The letter may be authenticated by the testimony of Mary, who saw Alex signing the letter.
(B) The letter may be authenticated by the testimony of Matt, who heard Alex state that he had signed the letter.
(C) The letter may be authenticated by the jury who can compare the letter with another writing sample purportedly to have been written by Alex.
(D) The letter may be authenticated through Alex’s failure to specifically deny Kent’s allegation, where such allegation was contained in a pleading in the present action, that the letter was signed by Alex.

Answer 7

(C) The letter may be authenticated by the jury who can compare the letter with another writing sample purportedly to have been written by Alex.

A jury can determine the geniuses of a writing by comparing the questioned writing with another writing PROVED, not just alleged, to be genuine.

Question 8

On cross-examination of Jane’s husband, ∆’s attorney asked, “Isn’t it true that Jane is being treated for severe depression and that this contributed to the accident that day?” Jane’s attorney should object because the testimonial evidence is:

(A) Arguably hearsay
(B) Arguably privileged
(C) Irrelevant and a compound question
(D) None of the above; any objection would be overruled

Answer 8

(B) Arguably privileged

FL recognizes confidential communications between a husband and wife. Thus, Jane’s conversation with her husband regarding her diagnosis and treatment for depression may be considered confidential and is, arguably, privileged.

Question 9

Bert’s Bar introduces statements made by Able contained in a written Department of Highway Safety accident report. A timely objection to such evidence should be:

(A) Sustained, as hearsay falling under no exception.
(B) Sustained, as statutory privilege.
(C) Overruled, as an admission.
(D) Overruled, if relevant to Able’s driving ability.

Answer 9

(B) Sustained, as statutory privilege.

FL recognizes a privilege for written reports made by persons involved in motor vehicle accidents, which includes statements made in the report itself, as well as statements made for the purpose of completing the report.

Question 10

Able introduces the result of a blood alcohol test conducted as part of the traffic accident investigative report. A timely objection to this evidence should be:

(A) Sustained, as hearsay falling under no exception.
(B) Sustained, as statutory privilege.
(C) Overruled, but only in a civil case.
(D) Overruled, if a proper foundation has been laid for its introduction.

Answer 10

(D) Overruled, if a proper foundation has been laid for its introduction.

The accident report privilege does NOT apply to blood alcohol tests conducted as part of a traffic accident investigative report.

Question 11

Chevy is asked on cross-examination if he had been charged with drunk driving approximately one year prior to the accident. Chevy’s counsel objects before he can answer. The objection should be:

(A) Sustained.
(B) Overruled, but only if the prior charge is probative of truthfulness.
(C) Overruled, but only if the examining counsel had inquired in good faith.
(D) Overruled, for the reasons stated in both (B) and (C).

Answer 11

(A) Sustained.

Under FL law, a witness may not be asked about prior specific acts of misconduct for which he was not convicted.

Question 12

As a result of Bart’s hypnosis, he remembered that the person exiting Vaughn’s window on June 11 jumped into a car which bore the license plate “DAS.” Dave’s timely objection tot he introduction of Bart’s testimony regarding the license plate should be:

(A) Overruled, fi Bart presently remembers that the license plate read “DAS.”
(B) Overruled, because the fact that Bart’s memory has been refreshed by hypnosis will go to the weight, and not the admissibility, of his testimony.
(C) Overruled, for the reasons stated in both (A) and (B).
(D) Sustained.

Answer 12

(D) Sustained.

Bart would be testifying as to a new mater discovered through hypnosis. Such testimony, based on memory refreshed or enhanced through hypnosis, is inadmissible per se in a criminal trial.

Question 13

If Dave seeks to impeach Bart on cross-examination with evidence that Bart has used illegal drugs, which of the following, at a minimum, must he establish?

(A) That regardless of whether Bart was under the influence of the drug on June 11, Bart’s drug use affected his ability to observe, remember, and recount events occurring on that date.
(B) That Bart had taken the drug in the past, and that several times while under the drug’s influence, his ability to observe, remember, or recount events has been impaired.
(C) That Bart was under the influence of the drug on June 11 when he provided the police with the description of the person he had seen exiting Vaughn’s window.
(D) Both (B) and (C).

Answer 13

(A) That regardless of whether Bart was under the influence of the drug on June 11, Bart’s drug use affected his ability to observe, remember, and recount events occurring on that date.

Under FL law, prior drug use is admissible for impeachment purposes where it is expressly shown by other relevant evidence that prior drug use affects the ability to observe, remember, and recount.

Question 14

At Clint’s trial, the prosecution established that Wes, an eyewitness to the battery, told a police officer that he heard Clint say, “Die, Hill, die,” as Clint repeatedly struck Hill over the head with a large wrench. When Wes is called by the prosecution to testify, however, he claims that he really did not see who struck Hill, could not positively identify Clint as the assailant, and he doesn’t remember Clint saying anything. The prosecutor then asks Wes if Wes had previously told a police officer that he had seen Clint repeatedly strike Hill over the head with a large wrench. Clint’s timely objection to this question should be:

(A) Sustained, because the prosecution cannot impeach its own witness by proof of extrinsic evidence.
(B) Sustained, because Wes’s out-of-court statement constitutes hearsay falling under no exception.
(C) Overruled, as a hearty exception.
(D) Overruled.

Answer 14

(D) Overruled.

Here, the statement the prosecutor seeks to elicit from Wes is offered not for the truth of the matter asserted, but rather to impeach Wes with evidence of a prior inconsistent statement. Accordingly, answers (B) and (C) are incorrect because the out-of-court statement Wes made tot he police officer is not hearsay since it is not being offered to prove the truth of the matter asserted, but rather to impeach Wes. (A) is incorrect because the prosecution can impeach its own witness in this fashion. Moreover, Wes’s prior statement identifying Clint is not hearsay.

Question 15

If the prosecution offers Officer Goodbody’s nots of the investigation into evidence, Clint’s timely objection to their introduction should be:

(A) Sustained.
(B) Sustained, because the content of the notes is hearsay falling under no exception.
(C) Sustained, unless the notes are contained in Goodbody’s official police report.
(D) Overruled, as hearsay falling under an exception.

Answer 15

(A) Sustained.

Officer Goodbody’s notes may be READ into evidence under the past recollection recorded exception to the hearsay rule, but may not be ADMITTED into evidence, as the prosecution seeks to do here. F.E.C. § 90.803(5): A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly, may be read to the jury under this exception to the hearsay rule. A party may read into evidence such memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by the adverse party.

Question 16

To prove the extent of her physical injuries, Verna seeks to introduce the affidavit of Dr. Winston, who is presently unavailable as a witness. In the affidavit, Dr. Winston states that he examined Verna within 2 hours of the accident and concluded that a heavy object had fallen onto her, breaking 3 bones in her foot and fracturing her leg. Don’s timely objection to the introduction of the affidavit into evidence should be:

(A) Sustained.
(B) Overruled, because the affidavit falls under the business record exception to the hearsay rule.
(C) Overruled, because the affidavit falls under the declaration of present bodily condition exception to the hearsay rule.
(D) Overruled, because the affidavit falls under the declaration of past bodily condition exception to the hearsay rule.

Answer 16

(A) Sustained.

The affidavit is multiple hearsay (Verna’s statements are contained within the doctor’s affidavit) and does not fall within an exception. Although Verna’s statements made to her doctor concerning a presently bodily condition would be admissible as an exception to the hearsay rule, the doctor’s affidavit in this case is hearsay that falls under no exception. The affidavit is not a proper business record, nor is it former testimony.

Question 17

To prove Balmart’s liability, Verna offers the testimony of Wilson, a witness who heard Don say right after the accident, “I sure didn’t see that display, and I certainly didn’t expect it to come tumbling down at the slightest touch.” Blamer’s timely objection to this testimony should be:

(A) Sustained, if Don is an employee of Balmart.
(B) Sustained, if Don is not an employee of Balmart.
(C) Sustained, whether or not Don is an employee of Balmart.
(D) Overruled.

Answer 17

(B) Sustained, if Don is not an employee of Balmart.

Although if used against Don, Wilson’s statement would be admissible under the admission exception to the hearsay rule, the same does not apply as against Balmart, unless Balmart and Don have a principal-agent relationship. Admissions of a party are not admissible against a co-∆ merely because they happen to be joined as parties to the action. If there are 2 or more parties, the admission of one party is receivable as against that party, but int he absence of authority, not against the co-party. Thus, if Don is Balmart’s employee, then the statement he made would be admissible against Balmart. If such a relationship does not exist, then Don’s admission is not admissible against Balmart.

Question 18

Waldo submitted an employment application for a position as a truck driver with Ace Trucking Company. Prior to hiring Waldo, Ace requested that Waldo submit to a medical examination by Dr. Feel. During this examination, Waldo told Dr. Feel that he had a bad back. Waldo was hired by Ace. Sometime later, Waldo believed that he had injured his back loading a truck for Ace. After his worker compensation claim was denied, Waldo sued Ace. Ace wanted to obtain a copy of Dr. Feels’ pre-employment physical report which included her notes as to Waldo’s statement. Which of the following statements is true?

(A) Ace cannot obtain a copy of the report due to patient-doctor privilege.
(B) The patient-doctor privilege does not apply to pre-employment medical examinations.
(C) Ace can obtain a copy of the report.
(D) Ace can obtain a copy of the report only with a court order.

Answer 18

(C) Ace can obtain a copy of the report.

Rule 1.351 provides for discovery of documents from nonparties, upon notice in proper form. Because Waldo has placed his physical condition in issue, Ace is entitled to Discover Dr. Feel’s report.

Question 19

Dobb is being prosecuted for sexually assaulting Victim; however, Dobb claims that Vitim consented to all of the alleged sexual activity.

Robb’s counsel calls as witnesses the following 3 people: Victim’s physician, to testify regarding Victim’s physical injuries; and Victim’s sexual assault counselor & Victim’s psycho-therapist, to testify regarding Victim’s emotional condition. The prosecutor’s timely objection to these witnesses probably should be:

(A) Sustained as to all 3.
(B) Sustained as to the physician and the psychotherapist, but overruled as to the counselor.
(C) Sustained, but only as to the counselor and psychotherapist.
(D) Overruled as to all 3.

Answer 19

(C) Sustained, but only as to the counselor and psychotherapist.

FL recognizes a privilege for confidential communications between a sexual assault counselor and a sexual assault victim and between a psychotherapist and a patient, but does not recognize a general physician-patient privilege in criminal proceedings.

Question 20

Dobb is being prosecuted for sexually assaulting Victim; however, Dobb claims that Vitim consented to all of the alleged sexual activity.

Assume that the court allowed Dobb’s wife, Wilma, to testify. Over counsel’s timely objection Wilma testified (i) that Dobb had not been with her not he night Victim was sexually assaulted and (ii) that Dobb told her he had been out drinking with his buddies that entire night. The court should:

(A) Sustain the objections as to both statements.
(B) Sustain the objection to the first statement; overrule the objection to the second statement.
(C) Overrule that objection to the first statement; sustain the objection to the second statement.
(D) Overrule the objections as to both statements.

Answer 20

(C) Overrule that objection to the first statement; sustain the objection to the second statement.

The second statement is privileged as a confidential marital communication. However, the first statement was not a communication. Therefore, Wilma may be able to testify that her husband was not with her on the night of the assault.

Question 21

Alex is suing Burton for serious injuries Alex sustained to his back when the car Burton was driving ran a red light and crashed into Alex’s vehicle.

To prove that Burton had run the red light, Alex’s counsel seeks to introduce the testimony of Wilbert, a witness to the accident, who will testify, “I told my daughter I saw Burton run that light.” A timely objection tot his testimony should be:

(A) Sustained, because the testimony is an admission against interest.
(B) Sustained, because the testimony is hearsay falling under no exception.
(C) Overruled, because the testimony is hearsay that falls within an exception.
(D) Overruled, because the testimony is an admission against interest.

Answer 21

(B) Sustained, because the testimony is hearsay falling under no exception.

The testimony is hearsay because it is being used as substantive evidence. The fact that the witness is relating his own statement is irrelevant. The testimony does not fall under a hearsay exception.

Question 22

Assuming that the evidence below is otherwise admissible, under which of the following circumstances would the best evidence rule be inapplicable?
I. Henk seeks to testify orally that he paid $200 for nails, which he claims he never received, and does not produce any written receipt.
II. Bernie, on trial for murder, wrote a written confession. Instead of introducing that confession, the prosecutor seeks to prove the content of the confession by introducing into evidence the oral testimony of the police detective who heard Bernie’s confession.
III. Gilbert seeks to testify orally that he has been divorced from he ex-wife for 3 years, and does not produce a written divorce decree.
IV. Barney seeks to testify orally that he has been married to Glenda for 6 months, and does not produce a written marriage license or certificate.

(A) I and IV
(B) II only
(C) I, II, and III
(D) I, II, and IV

Answer 22

(D) I, II, and IV

Where the fact to be proved has an existence independent of any writing (as in items I, II and IV), the best evidence rule does not apply. however, because a divorce (item III) is effective only by a judicial decree, the best evidence rule requires that the fact of the divorce be proved by the decree itself.

Question 23

Dexter is on trial for the murder of Victor. At trial, Dexter’s attorney seeks to impeach a prosecution witness. Which of the following questions would be proper?

(A) “Have you ever been convicted of disorderly conduct?”
(B) “Weren’t you once indicted for perjury?”
(C) “Weren’t you convicted of a felony, even though you were later pardoned for the crime?”
(D) None of the above

Answer 23

(C) “Weren’t you convicted of a felony, even though you were later pardoned for the crime?”

In FL, a conviction is admissible, even though it has been pardoned. (A) is inadmissible because disorderly conduct is neither a felony nor a misdemeanor involving dishonesty or false statement. (B) is inadmissible because it asks whether the witness had been “indicted” for perjury, not whether the ever committed perjury.

Question 24

At trial, Sarah seeks to introduce the testimony of Ben, who just prior to Sarah’s entry into the cab told Dexter, “Your there looks like it’s about to blow.” Over Dexter’s timely objection, the court should rule that Ben’s testimony is:

(A) Admissible nonhearsay if used to show Dexter’s knowledge of the tire’s possible conditions.
(B) Admissible hearsay within an exception if used to show that the tire was about to burst.
(C) Either (A) or (B).
(D) Inadmissible.

Answer 24

(C) Either (A) or (B).

The statement may be admitted as nonhearsay to show the effect of the statement on the hearer. Thus, Ben’s statement, if used to show Dexter’s knowledge of the tire’s possible condition, is admissible nonhearsay. The statement may also be admitted under the present sense impression exception to the hearsay rule and may be used as substantive evidence that the tire was about to burst.

Question 25

Sarah seeks to enter into evidence a certified copy of jury verdict and conviction finding Dexter guilty of reckless driving for the incident that caused Sarah’s injuries. Dexter’s timely objection to this evidence should be:

(A) Sustained, as hearsay without any exception.
(B) Sustained, on public policy grounds.
(C) Overruled, a hearsay but within an exception.
(D) Overruled, as nonhearsay.

Answer 25

(A) Sustained, as hearsay without any exception.

Because the certified copy of the conviction is offered as substantive evidence to prove the truth of the matter asserted therein, it is hearsay. It does not fall within any exception to the hearsay rule because, unlike the Federal Rules, FL does NOT recognize an exception for criminal conviction judgments and such judgments are not admissible as substantive evidence.

Question 26

Victor was discovered l dying not he floor in his home by his wife Wanda after she returned from a shopping trip. Victor had been badly beaten. Dale, Victor’s son, was arrested and charged with aggravated battery upon Victor. During a deposition, Victor testified that Dale was not the person who committed the battery. After Victor’s deposition, Dale (who had been released bond) returned to Victor’s home and shot him. Victor died from the gunshot wound. At Dale’s trial for aggravated battery, may Dale admit Victor’s deposition testimony?

(A) Yes, because Victor is unavailable.
(B) Yes, because Victor’s deposition testimony is not hearsay.
(C) No, because Victor’s deposition testimony is inadmissible hearsay.
(D) No, because Dale caused Victor’s unavailability.

Answer 26

(D) No, because Dale caused Victor’s unavailability.

§ 90.804 provides a hearsay exception for: “Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law int he course of the same or another proceeding, fi 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.” In order for the exception to apply, the declarant must be unavailable. Although Victor is now deceased, however, a declarant is not unavailable if his “unavailability” was procured by the proponent of the statement.