FL Evidence Part 1: §100-706 Flashcards
100 Questions covering Florida Evidence Code §100-706
When may a court predicate (declare) error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence ?
When a substantial right of the party is adversely affected and:
(a) When the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or
(b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.
If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party NEEDS / NEEDS NOT renew an objection or offer of proof to preserve a claim of error for appeal.
Needs Not.
A party need not renew an objection or offer of proof to preserve a claim of error for appeal, if the court has already made a definitive ruling on the record admitting or excluding evidence.
T/F. In cases tried by a jury, a court shall conduct proceedings, to the maximum extent practicable, in such a manner as to prevent inadmissible evidence from being suggested to the jury by any means.
True. In cases tried by a jury, a court shall conduct proceedings, to the maximum extent practicable, in such a manner as to prevent inadmissible evidence from being suggested to the jury by any means.
The Judge determines preliminary questions concerning: :
(a) ______________
(b) ______________
(c) ______________
(a) qualification of a person to be a witness,
(b) the existence of a privilege, and
(c) the admissibility of evidence.
A judge MAY/MAY NOT sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of witnesses, or the guilt of the accused.
MAY NOT
When evidence that is admissible as to one party or for one purpose, but inadmissible for another purpose, is admitted, the court, upon request, shall:
(1)__________
and
(2)___________
(1) Restrict such evidence to its proper scope and
(2) So inform the jury at the time it is admitted.
When a writing or recorded statement or part is introduced by a party, ___________may require introduction of any other part that in fairness ought to be considered contemporaneously.
an adverse party
Matters which must be judicially noticed.
- _______
- _______
- _______
- Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States.
- Florida rules of court that have statewide application
- Rules of federal courts as adopted by, or used by, the US Supreme Court and other US Courts.
Matters which may be judicially noticed.
A court has discretion and may take judicial notice of the following matters: (9 categories)
1.
2.
3.
4.
5.
6.
7.
8.
9.
- Special, local, and private acts and resolutions of US Congress & FL legislature
- Decisional, constitutional, and public statutory law of every other state & Fed Register
- Laws of foreign nations and of an organization of nations.
- Official actions of the legislative, executive, and judicial departments , Fed & states
- Rules and Records of any court or governmental agency
- Printed records/provisions of all municipal and county charters
- Duly enacted printed ordinances and resolutions of municipalities and counties
- Facts that are not subject to dispute because they are generally known
- 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.
A court MUST/MAY take judicial notice of facts that are not subject to dispute because they are generally known.
May.
Matters which may be judicially noticed inlcude:
Facts that are not subject to dispute
because they are generally known .
A court MUST/MAY take judicial notice of 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.”
MAY.
T/F. If a judge takes judicial notice of a fact, it must be made a part of the record.
True.
A court shall take judicial notice of any discretionary matter when a party requests it ,
and that requesting party:
(1) provides each adverse party with___________
AND
(2) furnishes the court with __________________
(1) provides each adverse party with—> Timely written notice of the request, proof of which is filed with the court.
AND
(2) furnishes the court with—> Sufficient information to enable it to take judicial notice of the matter.
When a court determines upon its own motion that judicial notice of a matter should be taken or when a party requests such judicial notice, the court shall afford each party with ___________ .
- reasonable opportunity to present*
- information* relevant to the propriety
of taking judicial notice …
In determining the propriety of taking judicial notice of a matter or the nature thereof, a court may consider, without regard to any exclusionary rule except a valid claim of privilege:
CHOOSE ONE:
(a) only evidence proffered by a party to establish the fact to be judicially noticed.
(b) any source of pertinent and reliable information, whether or not furnished by a party,
(c) facts alleged in the Complaint, Answer or other Pleadings that have been filed up to the date of the judicial notice request.
ANSWER:
(b) any source of pertinent and reliable information, whether or not furnished by a party,
*NOTE: If a court resorts to any documentary source of information not received in open court, the court shall make the information and its source a part of the record in the action and shall afford each party reasonable opportunity to challenge such information, and to offer additional information, before judicial notice of the matter is taken.
In family cases, the court may take judicial notice of any matter described when __________ has been alleged and it is impractical to give prior notice to the parties of the intent to take judicial notice.
ANSWER: imminent danger to persons or property
*NOTE: The parties’ opportunity to present evidence relevant to the propriety of taking judicial notice may be deferred until after judicial action has been taken, in light of such emergency circumstances.
Upon request of counsel, when a court denies a request to take judicial notice of any matter, the court shall inform the parties _______ and shall indicate for the record that it has denied the request. CHOOSE:
(a) at the earliest practicable time
(b) within 5 days from the judicial notice hearing
(c) prior to recall of, or return to, the jury, {where the judicial notice motion had been discussed in limine, or outside of the hearing of the jury.]
Answer:
(a) at the earliest practicable time
T/F. The failure or refusal of a court to take judicial notice of a matter does not preclude a court from taking judicial notice of the matter in subsequent proceedings
True.
A presumption is _________.
Except for presumptions that are conclusive under the law from which they arise, a presumption is ________.
ANSWERS:
A presumption is _________.
an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.
A presumption is _________.
rebuttable.
Definition of relevant evidence:
Evidence tending ______________.
Evidence tending
to prove or disprove a material fact.
FLORIDA: 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 Admissible/Inadmissible as evidence in a civil action.
ANSWER: Inadmissible
Note: statute only refers to civil action.
Cannot find similar rule for Criminal Action
A statement of fault which is part of, or in addition to, statements, writings or gestures of sympathy shall be Admissible/Inadmissible.
Save
ANSWER: Admissible.
Relevant evidence is general admissible, but is inadmissible if its probative value is substantially outweighed by either:
(a) __________
(b) __________
(c) __________
(d) __________
ANSWER:
(a) the danger of unfair prejudice,
(b) confusion of issues,
(c) misleading the jury, or
(d) needless presentation of cumulative evidence
Evidence of a person’s character or a trait of character is generally inadmissible to prove ____________.
ANSWER:
…action in conformity with the character or trait on a particular occasion
In a CRIMINAL TRIAL:
Evidence of ____ character can be offered by an accused/defendant, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
Answer: GOOD
Evidence of a pertinent trait of character of the victim of the crime CAN / CANNOT BE offered by an accused,
Evidence of a character trait of peacefulness of the victim CAN / CANNOT BE offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.
ANSWERS:
CAN
CAN
Both are exceptions to the general rule that Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion
Similar fact evidence of other crimes, wrongs, or acts is inadmissible when the evidence is relevant solely to _________________.
ANSWER:
prove bad character or propensity.
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:
1.
2.
3.
4.
5.
6.
7.
ANSWER:
“MIMIC”` + Knowledge & Opportunity
- (M) proof of motive,
- (I) intent,
- (M) absence of mistake,
- (I) identiy
- (C) common plan or scheme
plus 6. Knowledge
and 7. Opportunity
In a criminal case in which the defendant is charged with a crime involving child molestation or a sexual offence, evidence of ∆’s commission of other sexual crimes, wrongs, (or acts of child molestation) is ADMISSIBLE / INADMISSIBLE.
ANSWER:
ADMISSIBLE/INADMISSIBLE. a
Note: Such evidence may be considered for its bearing on any matter to which it is relevant - both for subjstantive and impeachment purposes.
When the state in a criminal action intends to offer evidence of other criminal offenses/prior bad acts, no fewer than ______the state shall furnish to ∆ or to ∆’s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information.
(a) within 48 hours before presentment to the jury
(b) 5 days before trial
(c) 10 days before trial
ANSWER:
c) 10 days before trial
Note: No notice is required for evidence of offenses
used for impeachment or on rebuttal.
When evidence of other crimes, wrongs or acts is admitted, the court _______ charge the jury on the limited purpose for which the evidence is received and is to be considered.
(a) must
(b) may, at its discretion,
(c) shall, if requested by a party
ANSWER:
(c) shall, if requested by a party
(NOT mandatory)
Then, after the close of the evidence, the jury shall be instructed on the limited purpose for which the evidence was received and that the defendant cannot be convicted for a charge not included in the indictment or information.
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 ________.
(a) routine habits
(b) reputation
(c) specific instances of good conduct
ANSWER
Florida – REPUTATION
Florida – TESTIMONY by W can be re: accused’s REPUTATION ONLY, and W cannot give their own personal OPINION of defendant!!
When CAN proof be offered or made of specific instances of a person’s prior acts or conduct?
ANSWER:
When the character or a trait of character of a person is an essential element of a charge, claim, or defense,
Evidence of the routine practice of an organization is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.
Does the evidence have to be corroborated or substantiated by eyewitnesses?
ANSWER
No.
Documentary or testimonial evidence of corporate practices by a foundational witness representaive of the organization is sufficient, and does not have to be further corroborated or otherwise witnessed.
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
a. negligence
b. the existence of a product defect
c. culpable conduct in connection with the event
d. All of the above.
ANSWER:
d. All of the above.
Evidence of remedial measures taken after an injury or harm caused by an event is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event.
This rule does not require the exclusion of evidence of subsequent remedial measures, and they are admissible, when : ________________________________.
ANSWER:
offered for another purpose,
Example: proving ownership and control, or the feasibility of taking precautionary measures,.
Can also be used for impeachment.
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 ADMISSIBLE/INADMISSIBLE to prove liability or absence of liability for the claim or its value.
ANSWER:
INADMISSIBLE
TIP: On FL exam, may show up generally as
“inadmissible on the basis of public policy”
T/F 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.
ANSWER:
True
TIP: On FL Exam, answer may show up as
“inadmissible as against public policy”
Offer to plead guilty; nolo contendere; withdrawn pleas of guilty…
Evidence of (a) a plea of guilty, later withdrawn; (b) a plea of nolo contendere; or (c) an offer to plead guilty or nolo contendere to any other crime is inadmissible in any _________ proceeding.
(a) civil or criminal proceeding.
(b) subsequent civil
(c) criminal
(d) appellate
ANSWER:
(a) civil or criminal proceeding.
Further, Evidence of statements made in connection with any of the pleas or offers is inadmissible.
A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news.
This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to _______, ________, or __________.
ANSWER
Journalist Privilege does not apply to :
- physical evidence,
- eyewitness observations, or
- visual or audio recording of crimes.
A party seeking to overcome the Journalists’ qualified privilege must make a clear and specific showing that:
(a) __________
(b) __________
(c) __________
ANSWER
(a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought
(b) The information cannot be obtained from alternative sources; an
(c) A compelling interest exists for requiring disclosure of the information
Note: DISCLOSURE ORDER.—A court shall order disclosure only of that portion of the information for which the showing here has been made, and shall support such order with clear and specific findings made after a hearing.
A professional journalist DOES / DOES NOT waive the privilege by publishing or broadcasting information.
ANSWER;
DOES NOT
AUTHENTICATION of Journalist records.—Photographs, diagrams, video recordings, audio recordings, computer records, or other business records maintained, disclosed, provided, or produced by a professional journalist, or by the employer or principal of a professional journalist, may be authenticated for admission in evidence HOW?
ANSWER:
Upon a showing, by affidavit of the professional journalist, or other individual with personal knowledge, that the photograph, diagram, video recording, audio recording, computer record, or other business record is (1) a true and accurate copy of the original, and that (2) the copy truly and accurately reflects the observations and facts contained therein.
ACCURACY OF EVIDENCE.—If the affidavit of authenticity and accuracy, or other relevant factual circumstance, causes the court to have clear and convincing doubts as to the authenticity or accuracy of the proffered evidence, the court may decline to admit such evidence.
Attorney or Lawyer-client privilege.
A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than:
- ________________________
- _______________________
Otherwise, a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.
ANSWER
- Those to whom disclosure is in furtherance of the rendition of legal services to the client.
- Those reasonably necessary for the transmission of the communication.
The privilege may be claimed by: (a) The client, (b) A guardian or conservator of the client, (c) The personal representative of a deceased client, and (d) A successor, assignee, trustee, or any similar representative of an organization, corporation, or association or other entity, either public or private, whether or not in existence.
Can a LAWYER claim the Privilege?
ANSWER:
YES, but…
The lawyer can claim, but only on behalf of the client. Not personal to lawyer. The lawyer’s authority to claim the privilege is presumed in the absence of contrary evidence.
There is no lawyer-client privilege under this section when a communication is relevant to
(a) Services of the lawyer sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a ____________.
(a) Any issue between parties who claim through the ____________\_
(b) Issues re: ______\_ in the lawyer-client relationship
(c) The intention or competence of a client executing an attested document to which the lawyer is an _________\_ or concerning the execution or attestation of the document.
ANSWERS:
(a) crime or fraud.
(b) breach of duty
(c) attesting witness,
There is no lawyer-client privilege when a communication is relevant to a matter of common interest between two or more clients, if the communication was made by any of them to a lawyer _________when offered in a civil action between the clients…
ANSWER:
jointly retained or consulted in common
Also applies to any issue between parties who claim through the same deceased client.
Communication between psychotherapist and patient for purposes of diagnosis or treatment is “confidential” if it is not intended to be disclosed to third persons other than those persons who
- ____________
- ___________
- ___________
ANSWERS
1, are present to help the patient in the consultation, examination, or interview.
- are necessary for the transmission of the communication.
- are participating in the diagnosis and treatment w/the psychotherapist.
There is no privilege under this section for communications relevant to an issue relating to :
- ________________
- _______________
- _______________
ANSWERS:
- proceedings to compel hospitalization of a patient for mental illness,
- court-ordered examination of the mental or emotional condition of the patient.
- any proceeding in which the patient relies upon the condition as an element of his or her claim or defense
A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a sexual assault counselor or trained volunteer or any record made in the course of advising, counseling, or assisting the victim.
Such confidential communication or record may be disclosed ____________.
ANSWER:
only with the prior written consent of the victim.
This privilege includes any advice given by the sexual assault counselor or trained volunteer in the course of that relationship.
A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a domestic violence advocate or any record made in the course of advising, counseling, or assisting the victim.
The privilege applies to confidential communications only if _________________________.
ANSWER:
the advocate is registered at the time the communication is made.
A spouse has a privilege _____(CHOOSE) the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
a. before
b. during or throughout
c. during and after
d. before, during and after
ANSWER:
c. during and after the marital relationship
Does not apply to communications BEFORE the marriage.
The marital communications privilege may be claimed by or on behalf of either spouse.
However, there is no privilege :
(a) In a proceeding brought by or on behalf of one spouse against the other spouse.
(b) In a criminal proceeding ______________
(c) In a criminal proceeding ______________
ANSWERS:
(b) in which one spouse is charged with a crime committed at any time against the other spouse, or the person or property of a child of either.
(c) in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.
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 _____________.
a. ordained by a recongized or organized religion
b. in his or her capacity as spiritual adviser.
c. provided that the communication does not relate to the future commission of a violent crime or act that may cause serious injury or death.
d. All of the above.
ANSWER:
in his or her capacity as spiritual adviser.
EXAM TIP: “spiritual advisor” does not have to be a member of an organized religion. The intent or perpcetion of the communicant, even if mistaken as to the authority or status of the clergy, is sufficient, if the communicant reasonably believed they were a minister, priest, rabbi or spirital advisor and they could freely discuss spirital matters in confidence.
T/F. Communications between a physician and patient are “confidential” if they are not intended to be disclosed to third persons other than:
- Those persons present to help the patient in the consultation, examination, or interview.
- Those persons necessary for the transmission of the communication.
- Or who are participating in the diagnosis and treatment w/the phsyician.
ANSWER:
FALSE
*NO* PHYSICIAN-PATIENT PRIVILEGE IN FLORIDA!!* Statutes provide that records are confidential, and cannot be provided without patient written authorization, but it is NOT an evidentiary privilege and records MUST be furnished in response to a SUBPOENA after proper notice to the patient. (But there is a psychotherapist privilege)
T/F A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications with an accountant when such other person learned of the communications because they were made in the rendition of accounting services to the client.
This privilege includes other confidential information obtained by the accountant from the client for the purpose of rendering accounting advice.
ANSWER:
TRUE in FLORIDA
A communication between an accountant and the accountant’s client is “confidential” if it is not intended to be disclosed to third persons other than:
- To whom disclosure is in furtherance of the rendition of accounting services to the client.
- Those reasonably necessary for the transmission of the communication.
There is no accountant-client privilege under this section when _____________: (CHOOSE ONE)
(a) The services of the accountant were sought to enable anyone to plan/commit what the client knew or should have known was a crime or fraud.
(b) A communication is relevant to an issue of breach of duty by the accountant to the accountant’s client or by the client to his or her accountant.
(c) A communication is relevant to a matter of common interest between two or more clients, if jointly retained (only in a later civil action between the clients.)
(d) All of the above.
ANSWER:
(d) All of the above.
Note on (c) A communication is relevant to a matter of common interest between two or more clients, if jointly retained applies only in a later civil action between the clients.
Finally, privilege does not apply if a communication is relevant to a common interest of two or more of the accountant’s clients or if a client consults an accountant jointly with another person. Regarding this final exception, a Florida court determined in Cone v. Culverhouse that determining whether a communication fits this criteria depends on whether an objectively reasonable client who consulted an accountant jointly with another person would have understand that particular communications might be accessible to the other client as well.
A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. ]
When the court directs disclosure, it shall ______________________.
ANSWER:
…take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require.
For example, judge can review in camera, put protective order or seal, or redact sensitive information.
The privilege may be claimed by the person or the person’s agent or employee.
A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person voluntarily discloses or makes the communication when:
(a) _____________ or
(b) _____________
ANSWER
](a) he or she does not have a reasonable expectation of privacy, (such as within hearing of 3rd parties) or
(b) he consents to disclosure of, any significant part of the matter or communication.
EXAM TIP: Note exam question: where patient was in hospital and there was a nurse incidentially working in his room, but patient reasonably believed that he was having a confidential conversation with his attorney, that was not considered a voluntary disclosure per test answer.
In any civil case or proceeding in which a party claims a privilege as to a communication necessary to an adverse party, the court, upon motion, may _____________ .
ANSWER
___dismiss the claim for relief or the affirmative defense to which the privileged testimony would relate.
In making its determination, the court may engage in an in camera inquiry into the privilege
Is the testimony of interested persons admissible?
a. Never.
b. Yes, but only if the probative value of the testimony outweighs the prejudicial value.
c. Yes, it is a matter of weight, not competency.
d. Yes, but evidence of any such interest may be only introduced upon cross-examination of the witness.
ANSWER:
c. Yes, it is a matter of weight, not competency.
A witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may be given by _____________.
ANSWER:
the witness’s own testimony.
T/F. The judge presiding at the trial of an action is not competent to testify as a witness in that trial.
ANSWER:
True.
An objection is not necessary to preserve the point. By agreement of the parties,
Except: The trial judge may give evidence on a purely formal matter to facilitate the trial of the action.
A member of the jury is not competent to testify as a witness in a trial when he or she is sitting as a juror. However, if the juror is called to testify, the opposing party shall ______________________________.
ANSWER:
____ be given an opportunity to object out of the presence of the jury.
Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.
Any party, including the party calling the witness, may attack the credibility of a witness by:
(1) Introducing statements of the W which are _________________________.
(2) Showing that the witness is ______.
(3) Attacking ___ _____ of the witness
(4) Showing a ______________in the witness to __________ the matters about which the witness testified.
(5) Proof by other Ws that material facts _______________ by the W being impeached.
ANSWER:
(1) Introducing statements of the W which are inconsistent with the W’s present testimony.
(2) Showing that the witness is biased.
(3) Attacking the character of the witness
(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 Ws that material facts are not as testified to by the W being impeached.
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 __________; and
(2) Evidence of a truthful character is admissible only after ____________________________.
ANSWER:
(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.
A party may attack the credibility of any witness, including an accused, by :
(1) evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year (felony) under the law under which the witness was convicted, or
(2) if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:
(a)
(b)
ANSWER;
(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.
eT/F 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.
T/F Evidence of the pendency of the appeal is admissible.
ANSWER:
TRUE
TRUE
Evidence of the beliefs or opinions of a witness on matters of religion is ADMISSIBLE / INADMISSIBLE to show that the witness’s credibility is impaired or enhanced thereby.
ANSWER:
INADMISSIBLE
What must the judge do to :
(a) Facilitate, through effective interrogation and presentation, the discovery of the truth;
(b) Avoid needless consumption of time; and
(c) Protect witnesses from harassment or undue embarrassment?
ANSWER:
The judge shall exercise reasonable control over the mode and order of the interrogation of witnesses, and the presentation of evidence.
Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion:
(a) limit the scope of cross examination to those matters within the parties’ pleadings;
(b) permit inquiry into additional matters;
(c) permit a hearing in camera to discuss objections to the scope of questions raised on cross examination
(d) All of the Above
ANSWER:
The court may, in its discretion:
(b) permit inquiry into additional matters.
When a witness uses a writing or other item to refresh memory while testifying, THE PARTY / THE ADVERSE PARTY is entitled to have such writing or other item produced at the hearing…..
ANSWER;
THE ADVERSE PARTY
is entitled to have such writing or other item produced at the hearing, AND 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.
Leading questions should:
(a) not be used on the direct examination of a witness, except as may be necessary to develop the witness’s testimony.
(b) be permitted on cross-examination.
(c) be allowed when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party;
(d) All of the Above
ANSWER:
(d) All of the Above
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….
If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall:
(a) ____________,
(b) _________ and
(c) ___________.
ANSWER:
(a) examine the writing in camera,
(b) excise any portions not so related, and
(c) order delivery of the remainder to the party entitled thereto.
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: ____________________.
ANSWER
to be shown to the witness, or its
contents disclosed to him or her,
(prior to the witness’s testifying)
Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded ____________ and the opposing party is ___________.
If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.
ANSWER
__an opportunity to explain or deny the prior statement
__afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require.
This subsection is not applicable to admissions of a party-opponent
Can the Judge/Court call or interrogate
a witness proactively?
ANSWER:
YES
The court may call witnesses whom all parties may cross-examine. When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.
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
EXCEPTIONS: A witness may not be excluded if the witness is:
(a)
(b)
(c)
ANSWER:
(a) A party or in a civil case, an officer or employee of a party that is not a natural person.
(b) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.
(c) 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.
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) ___________________
ANSWER:
(2) The opinions do not require a special
* knowledge, skill, experience, or training*.
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 or otherwise, if: {CHOOSE ONE}
(a) The testimony is based upon sufficient facts or data;
(b) The testimony is the product of reliable principles and methods; and
(c) The witness has applied the principles and methods reliably to the facts of the case;
(d) All of the Above
ANSWER
(d) All of the Above
EXAM TIP: Testimony in the form of an opinion or inference otherwise admissible, by a lay or expert witness, is not objectionable because it includes an ultimate issue to be decided by the trier of fact.
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert __{CHOOSE ONE}__ the trial.
(a) at or during
(b) before
(c) at, during or before
(d) prior to his/her retention for the trial
ANSWER:
(c) at, during or before
NOTE: If the facts or data are of a type reasonably relied upon by experts in the subject area to support the opinion expressed, the facts or data need not be admissible in evidence.
Facts or data that are otherwise inadmissible (unusual or unique) may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
Disclosure of facts or data underlying expert opinion -
T/F (1) Unless otherwise required by the court, an expert may testify ON DIRECT in terms of opinion or inferences and give reasons without prior disclosure of the underlying facts or data.
T/F (2) ON CROSS_EXAMINATION, the expert shall not be required to specify the facts or data on which he relied.
ANSWER:
TRUE - No prior disclosure required on direct examination
FALSE - the expert SHALL be required to specify the facts or data on which he relied, if asked on cross- examination
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 ________________
ANSWER:
the party offering the testimony establishes
the underlying facts or data
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:
(a) in direct, to establish a foundation of facts and data which underly the expert witnesses opinions or testimony;
(b) in cross-examination an expert witness, if the expert recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative;
(c) in either direct or cross-examination, to establish a foundation for the expert’s opinion, provided that the probative value of the information outweighs the potential for the treatise to create confusion in the jury or undue delays in the proceedings;
(d) None of the above.
ANSWER:
(b) in cross-examination an expert witness, if the expert recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative;
NOTE: Notwithstanding non-recognition by the expert witness, it may be used on cross examination 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 (determined after a hearing with opportunity to be heard by both parties)
T/F Federal Rules of Evidence provide that a judicially noted fact is a conclusive in a Civil case but note in a Criminal case.
ANSWER:
TRUE
In a criminal case, the jury is instructed that it MAY, but is not required to, accept as conclusive any judicially noticed fact. EX: “Drug charge: If you find that the defendant obtained the substance in Kansas City and delivered it to Chicago, then you may, but you are not required to, find that the transaction was interstate in nature.”
THEREFORE: Jury Instructions
Civil - MUST accept judicial notice as fact
Criminal - MAY accept judicial notice as fact
The Williams Rule permits the state to bring in evidence of a defendant’s bad acts, crimes or wrongs when trying to show, for example, that he has a motive, opporutnity, intent, knowledge, etc. (MIMIC) to commit the crime (but not that he acted consistent therewith on this occaision)
To admit, state must give D at least 10 days’ notice (must include what the evidence will be)
To Determine Admissibility - judge must determine:
(1) ___________
(2) ___________
ANSWER:
(1) Whether the jury could reasonably find by C&C evidence that the other similar act occurred; and
(2) Whether the probative value is substantially outweighed by danger of unfair prejudice
Reverse Williams Rule applies when accused claims someone else committed the offense and the defendant wants to introduce evidence about other acts of that other person.
What is the difference between the Federal Rules of Evidence and Florida Evidence rules on this point?
ANSWER:
- FRE - admissible if acts are similar or relevant
- FL - admissible if acts are strikingly similar (like a fingerprint). Higher standard for admissibility.
May an expert witness provide an opinion regarding the defendants mental state ?
ANSWER
YES. However, the expert may not state an opinion that amounts to a legal conclusion, i.e., expert can say “defendant was angry at the time,” but cannot determine that the defendant had a “depraved heart” which would be an element of certain crimes.
When introducting prior Criminal Convictions, the Federal Rules of evidence establish a time limit of 10-years, to be relevant/admissible. What does Florida provide for a time limit?
ANSWER
FLORIDA- no definite time frame is set for relevancy of prior criminal convictions. Instead:
- Civil - judge decides whether the prior conviction is “too remote”
- Criminal - judge decides whether the probative value of prior conviction is substantially outweighed by the danger of unfair prejudice
The Federal Rules of Evidence allows for introduction of juvenile offeneses as a method of impeachment in certain instances. What does Florida allow?
ANSWER
FLORIDA - Juvenile criminal adjudications
are never allowed.
When prior convictions have been pardoned, {CHOOSE}
(a) Florida does not bar use of convictions that have been pardoned;
(b) The Federal Rules of Evidence do not bar use of convictions that have been pardoned;
(c) Both Florida and the Federal Rules of Evidence allow the use of prior convictions provided the probative value of the admitted testimony/evidence outweigh the potential for unfair prejudice;
(d) None of the Above
ANSWER:
(a) Florida does not bar use of convictions that have been pardoned.
The Federal Rules of evidence DO totally bar pardoned convictions.
Note on FL Procedure: Pardoned crimes may be usd in the context of testing honesty. Ask the witness if they’ve ever been convicted of felony/crime of dishonesty (do not specifically name the crime)
- If witness denies, the adverse party may enter the record of any such conviction.
- If witness does not deny, the adverse party may ask about the number of convictions but if defendant is truthful, questioning must stop there.
T/F In Florida, a rebuttal witness used to rehabilitate an impeached witness can either
(a) provide information about the defendant’s reputation, or
(b) the witness can provide a personal opinion of the defendant’s character.
ANSWER
False
FL - rebuttal witness can only be a reputation witness
(NO OPINION WITNESSES)
DIFFERENT from Federal Rules, where a rebuttal witness used to rehabilitate an impeached witness can either be a reputation or opinion witness.
T/F Florida permits a person’s habit evidence to be admitted, but only as corroborating evidence.
ANSWER:
TRUE
Settlement offers – both the settlement amount and collateral statements made during settlement negotiations are ADMISSIBLE/INADMISSIBLE on public policy grounds
T/F A settlement offer made by a party to an opposing party is not attorney-work product, and not subject to attorney-work product or attorney client privilege
ANSWERS:
INADMISSIBLE
TRUE
Exam tip - Settlement offers will likely be denied admissibility on “public policy grounds,” not because they are attorney-client privileged or attorney work product.
If scientific, specialized knowledge will assist the trier of fact in understanding the evidence or determining fact in issue a witness qualified as an expert by knowledge, skill or experience, training or education may testify about it in the form of an opinion IF: {CHOOSE ONE}
(a) The testimony is based upon sufficient facts or data;
(b) The testimony is the product of reliable principles and methods;
(c) The W has applied the principles reliably to the fats of the case;
(d) All of the above.
ANSWER
(D) All of the above
NOTE RE: DNA - The court must determine that the Dubert standard has been met for (DNA test) to be admissible. (although DNA is generally admissible in FL subject to court review of chain of custody and reliability of testing. )
T/F The defendant’s burden in a circumstantial evidence case is to present evidence from which the only reasonable inference is that he/she is not guilty.
ANSWER:
FALSE
It is the state’s burden in a circumstantial evidence case to present evidence from which the only reasonable inference is that the defendant is guilty. If proof fails, defendant can be acquitted.
EXPERT FEES - The amount of payment/money an expert receives for his testimony is:
(a) ADMISSIBLE to show BIAS, and is not hearsay.
(b) ADMISSIBLE as a hearsay expection, to show bias .
(c) INADMISSIBLE as not relevant to the substantive issues in the case and may lead to jury confusion.
(d) INADMISSIBLE as hearsay with no exception.
ANSWER
(a) ADMISSIBLE to show BIAS, and is not hearsay.
Evidence of a propensity character trait (such as tendency towards safety and prudence ) is ADMISSIBLE/ INADMISSIBLE in a civil case to prove that a party acted in conformity with those propensities or habitual traits on a particular occasion.
ANSWER:
INADMISSIBLE
Propensity evidence is inadmissible in civil cases WITHOUT EXCEPTION.
EXAM TIP- Overall, whole broader category of character evidence is generally not admissible in a civil case to prove a person’s conduct unless character is directly at issue (rare to be admissible, unlikely to be admissible within an exam fact pattern).
T/F Eyewitness identification should be disclosed even if a party is not calling them a s a witness.
ANSWER:
TRUE
Note: The Attorney work product doctrine DOES NOT prevent the disclosure of the mere existence of an eyewitness, even if documents later generated by the attorney would be protected under the work product document.
T/F Evidence of a prior inconsistent statement may be used to impeach a witness even if upon or relating to a collateral matter unrelated to the subject matter of the lawsuit, if it relates to the credibility or truthfulness of the witness.
ANSWER
FALSE
Inconsistent statements used for impeachment have to go to a substantial / material fact. Evidence of a prior inconsistent statement may not be used to impeach a witness if upon a COLLATERAL MATTER because it will possibly confuse the issues or waste time / cause undue delays in the proceedings.
