FL Evidence Distinctions Flashcards
A judge may not summarize evidence or otherwise comment to the jury about
- the weight of the evidence,
- credibility of witnesses, or
- guilt of the accused.
A Florida court may, at its discretion, take judicial notice of:
- Special, local, and private acts of the Florida Legislature and U.S. Congress;
- All other states’ and U.S. territories’ decisional, constitutional, and public statutory law;
- Contents of the Federal Register;
- Foreign nations’ and organizations of nations’ laws;
- Federal and state official legislative, executive, and judicial actions;
- Federal and state court rules and records;
- Florida municipal and county charter provisions, amendments, ordinances, and resolutions;
- Promulgated governmental rules that are published in the Florida Administrative Code or other bound written copies;
- Generally known facts within the territorial jurisdiction of the court;
- Generally known facts or facts capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned; and
- Governmental agencies and departments’ official seals.
Prior to requesting judicial notice, a party must..
- give adverse parties timely written notice of the request
- furnishes the court with sufficient information to enable it to take judicial notice of the matter.
When deciding on judicial notice, the court must ..
- afford each party reasonable opportunity
- to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.
When deciding on judicial notice, the court MAY ..
- use any source of pertinent and reliable information, whether or not furnished by a party, without regard to any exclusionary rule
- except a valid claim of privilege and the Rule 403 exclusions.
When the court denies judicial notice, it must …
- inform the parties at the earliest practicable time and
- must indicate for the record the denial of the request
May the court provide judicial notice to a jury?
Yes in civil
NO in criminal
Is the appellate court bound by lower court’s decision on judicial notice?
NO
The court, in subsequent proceedings, is not required to give effect to an earlier court’s refusal or failure to take judicial notice of a matter.
What witnesses may not be excluded from the courtroom for testimony in a criminal proceeding?
in Florida a witness in a criminal case may not be excluded if
- the witness is 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 of a party or the court, the court determines that the person’s presence would be prejudicial.
A presumption is …
rebuttable
unless it is conclusive under the law from which it arises. Fla. Stat. § 90.301.
An example of a conclusive presumption is a statute that sets forth the age below which a person is deemed to be able to consent to sexual intercourse.
In civil cases, every rebuttable presumption is either:
i) A presumption that affects the burden of producing evidence and requires the trier of fact to assume the existence of a presumed fact unless contrary credible evidence is introduced (at which point the presumption’s “bubble bursts”); or
ii) A more powerful presumption that affects the burden of proof—it places the burden of proof on the party it operates against to show the nonexistence of the presumed fact (meaning that the presumption doesn’t go away, i.e., the bubble doesn’t burst, merely because contrary evidence is produced).
Can character evidence be in the form of an opinion?
NO
Contrary to the federal rule, in Florida, proof of character cannot be in the form of opinion testimony.
Only evidence in the form of reputation testimony is permitted.
If a defendant offers evidence of a victim’s character, may the state rebut or show def’s character?
NO
- the Florida rule does not allow the prosecution to rebut with the defendant’s character trait when the defendant offers a victim’s character trait
- It may only rebut with evidence of victim’s character trait of peacefulness. See Fla. Stat. § 90.404.
When is evidence of other crimes, wrongs or acts admissible?
- when relevant
- to prove a material fact
- in issue
like identity, preparation, motive, intent, opportunity, plan, absence of mistake or accident, or knowledge (e.g., MIMIC evidence). Fla. Stat.
NOTE - A material fact is not at issue simply because it relates to an element of the charged crimes and the defendant has pled not guilty.
If the purpose of introducing prior bad act evidence is to prove identity, then it must
must be “identifiable points of similarity” that establish, when also considering dissimilarities, a “sufficiently unique pattern of criminal activity.”
When may prior bad acts of sexual battery or child molestation be introduced?
This evidence may be considered for its bearing on any matter to which it is relevant,
but it is inadmissible when relevant solely to prove bad character or propensity
When must the state provide notice of intent to use prior bad acts evidence?
At least TEN (10) days before trial
When providing notice of intent to use prior bad acts as evidence, what must the notice inculde?
This notice must describe the acts the state seeks to admit as evidence with particularity
