FL Evidence Part 1: §100-706

Question 1

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 ?

Answer 1

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.

Question 2

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.

Answer 2

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.

Question 3

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.

Answer 3

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.

Question 4

The Judge determines preliminary questions concerning: :

(a) ______________
(b) ______________
(c) ______________

Answer 4

(a) qualification of a person to be a witness,
(b) the existence of a privilege, and
(c) the admissibility of evidence.

Question 5

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.

Answer 5

MAY NOT

Question 6

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)___________

Answer 6

(1) Restrict such evidence to its proper scope and
(2) So inform the jury at the time it is admitted.

Question 7

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.

Answer 7

an adverse party

Question 8

Matters which must be judicially noticed.

1. _______
2. _______
3. _______

Answer 8

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
3. Rules of federal courts as adopted by, or used by, the US Supreme Court and other US Courts.

Question 9

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.

Answer 9

1. Special, local, and private acts and resolutions of US Congress & FL legislature
2. Decisional, constitutional, and public statutory law of every other state & Fed Register
3. Laws of foreign nations and of an organization of nations.
4. Official actions of the legislative, executive, and judicial departments , Fed & states
5. Rules and Records of any court or governmental agency
6. Printed records/provisions of all municipal and county charters
7. Duly enacted printed ordinances and resolutions of municipalities and counties
8. Facts that are not subject to dispute because they are generally known
9. 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.

Question 10

A court MUST/MAY take judicial notice of facts that are not subject to dispute because they are generally known.

Answer 10

May.

Matters which may be judicially noticed inlcude:

Facts that are not subject to dispute

because they are generally known .

Question 11

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.”

Answer 11

MAY.

Question 12

T/F. If a judge takes judicial notice of a fact, it must be made a part of the record.

Answer 12

True.

Question 13

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 __________________

Answer 13

(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.

Question 14

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 ___________ .

Answer 14

• reasonable opportunity to present*
• information* relevant to the propriety

of taking judicial notice …

Question 15

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 15

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.

Question 16

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 16

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.

Question 17

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 17

Answer:

(a) at the earliest practicable time

Question 18

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

Answer 18

True.

Question 19

A presumption is _________.

Except for presumptions that are conclusive under the law from which they arise, a presumption is ________.

Answer 19

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.

Question 20

Definition of relevant evidence:

Evidence tending ______________.

Answer 20

Evidence tending

to prove or disprove a material fact.

Question 21

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 21

ANSWER: Inadmissible

Note: statute only refers to civil action.

Cannot find similar rule for Criminal Action

Question 22

A statement of fault which is part of, or in addition to, statements, writings or gestures of sympathy shall be Admissible/Inadmissible.

Save

Answer 22

ANSWER: Admissible.

Question 23

Relevant evidence is general admissible, but is inadmissible if its probative value is substantially outweighed by either:

(a) __________
(b) __________
(c) __________
(d) __________

Answer 23

ANSWER:

(a) the danger of unfair prejudice,
(b) confusion of issues,
(c) misleading the jury, or
(d) needless presentation of cumulative evidence

Question 24

Evidence of a person’s character or a trait of character is generally inadmissible to prove ____________.

Answer 24

ANSWER:

…action in conformity with the character or trait on a particular occasion

Question 25

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 25

Answer: GOOD

Question 26

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.

Answer 26

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

Question 27

Similar fact evidence of other crimes, wrongs, or acts is inadmissible when the evidence is relevant solely to _________________.

Answer 27

ANSWER:

prove bad character or propensity.

Question 28

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 28

ANSWER:

“MIMIC”` + Knowledge & Opportunity

1. (M) proof of motive,
2. (I) intent,
3. (M) absence of mistake,
4. (I) identiy
5. (C) common plan or scheme

plus 6. Knowledge

and 7. Opportunity

Question 29

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 29

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.

Question 30

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 30

ANSWER:

c) 10 days before trial

Note: No notice is required for evidence of offenses

used for impeachment or on rebuttal.

Question 31

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 31

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.

Question 32

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 32

ANSWER

Florida – REPUTATION

Florida – TESTIMONY by W can be re: accused’s REPUTATION ONLY, and W cannot give their own personal OPINION of defendant!!

Question 33

When CAN proof be offered or made of specific instances of a person’s prior acts or conduct?

Answer 33

ANSWER:

When the character or a trait of character of a person is an essential element of a charge, claim, or defense,

Question 34

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 34

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.

Question 35

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 35

ANSWER:

d. All of the above.

Question 36

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 36

ANSWER:

offered for another purpose,

Example: proving ownership and control, or the feasibility of taking precautionary measures,.

Can also be used for impeachment.

Question 37

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 37

ANSWER:

INADMISSIBLE

TIP: On FL exam, may show up generally as

“inadmissible on the basis of public policy”

Question 38

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 38

ANSWER:

True

TIP: On FL Exam, answer may show up as

“inadmissible as against public policy”

Question 39

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 39

ANSWER:

(a) civil or criminal proceeding.

Further, Evidence of statements made in connection with any of the pleas or offers is inadmissible.

Question 40

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 40

ANSWER

Journalist Privilege does not apply to :

• physical evidence,
• eyewitness observations, or
• visual or audio recording of crimes.

Question 41

A party seeking to overcome the Journalists’ qualified privilege must make a clear and specific showing that:

(a) __________
(b) __________
(c) __________

Answer 41

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.

Question 42

A professional journalist DOES / DOES NOT waive the privilege by publishing or broadcasting information.

Answer 42

ANSWER;

DOES NOT

Question 43

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 43

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.

Question 44

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:

1. ________________________
2. _______________________

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 44

ANSWER

1.  Those to whom disclosure is in furtherance of the rendition of legal services to the client.
2.  Those reasonably necessary for the transmission of the communication.

Question 45

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 45

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.

Question 46

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.

Answer 46

ANSWERS:

(a) crime or fraud.
(b) breach of duty
(c) attesting witness,

Question 47

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 47

ANSWER:

jointly retained or consulted in common

Also applies to any issue between parties who claim through the same deceased client.

Question 48

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

1. ____________
2. ___________
3. ___________

Answer 48

ANSWERS

1, are present to help the patient in the consultation, examination, or interview.

2.  are necessary for the transmission of the communication.
3.  are participating in the diagnosis and treatment w/the psychotherapist.

Question 49

There is no privilege under this section for communications relevant to an issue relating to :

1. ________________
2. _______________
3. _______________

Answer 49

ANSWERS:

1. proceedings to compel hospitalization of a patient for mental illness,
2. court-ordered examination of the mental or emotional condition of the patient.
3. any proceeding in which the patient relies upon the condition as an element of his or her claim or defense

Question 50

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 50

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.

Question 51

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 51

ANSWER:

the advocate is registered at the time the communication is made.

Question 52

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 52

ANSWER:

c. during and after the marital relationship

Does not apply to communications BEFORE the marriage.

Question 53

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 ______________

Answer 53

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.

Question 54

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 54

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.

Question 55

T/F. Communications between a physician and patient are “confidential” if they are not intended to be disclosed to third persons other than:

1.  Those persons present to help the patient in the consultation, examination, or interview.
2.  Those persons necessary for the transmission of the communication.
3.  Or who are participating in the diagnosis and treatment w/the phsyician.

Answer 55

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)

Question 56

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 56

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:

1.  To whom disclosure is in furtherance of the rendition of accounting services to the client.
2.  Those reasonably necessary for the transmission of the communication.

Question 57

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 57

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.

Question 58

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 58

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.

Question 59

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 59

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.

Question 60

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 60

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

Question 61

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 61

ANSWER:

c. Yes, it is a matter of weight, not competency.

Question 62

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 62

ANSWER:

the witness’s own testimony.

Question 63

T/F. The judge presiding at the trial of an action is not competent to testify as a witness in that trial.

Answer 63

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.

Question 64

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 64

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.

Question 65

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 65

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.

Question 66

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 66

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.

Question 67

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 67

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.

Question 68

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 68

ANSWER:

TRUE

TRUE

Question 69

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 69

ANSWER:

INADMISSIBLE

Question 70

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 70

ANSWER:

The judge shall exercise reasonable control over the mode and order of the interrogation of witnesses, and the presentation of evidence.

Question 71

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 71

ANSWER:

The court may, in its discretion:

(b) permit inquiry into additional matters.

Question 72

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 72

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.

Question 73

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 73

ANSWER:

(d) All of the Above

Question 74

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 74

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.

Question 75

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 75

ANSWER

to be shown to the witness, or its

contents disclosed to him or her,

(prior to the witness’s testifying)

Question 76

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 76

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

Question 77

Can the Judge/Court call or interrogate

a witness proactively?

Answer 77

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.

Question 78

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 78

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.

Question 79

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 79

ANSWER:

(2) The opinions do not require a special
* knowledge, skill, experience, or training*.

Question 80

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 80

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.

Question 81

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 81

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.

Question 82

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 82

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

Question 83

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 83

ANSWER:

the party offering the testimony establishes

the underlying facts or data

Question 84

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 84

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)

Question 85

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 85

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

Question 86

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 86

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

Question 87

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 87

ANSWER:

• FRE - admissible if acts are similar or relevant
• FL - admissible if acts are strikingly similar (like a fingerprint). Higher standard for admissibility.

Question 88

May an expert witness provide an opinion regarding the defendants mental state ?

Answer 88

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.

Question 89

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 89

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

Question 90

The Federal Rules of Evidence allows for introduction of juvenile offeneses as a method of impeachment in certain instances. What does Florida allow?

Answer 90

ANSWER

FLORIDA - Juvenile criminal adjudications

are never allowed.

Question 91

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 91

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.

Question 92

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 92

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.

Question 93

T/F Florida permits a person’s habit evidence to be admitted, but only as corroborating evidence.

Answer 93

ANSWER:

TRUE

Question 94

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

Answer 94

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.

Question 95

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 95

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. )

Question 96

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 96

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.

Question 97

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 97

ANSWER

(a) ADMISSIBLE to show BIAS, and is not hearsay.

Question 98

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 98

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).

Question 99

T/F Eyewitness identification should be disclosed even if a party is not calling them a s a witness.

Answer 99

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.

Question 100

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 100

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.