Fl Evidence sandon

Question 1

Exclusion on grounds of prejudice or confusion

Answer 1

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence

Question 2

Routine Practice

Answer 2

is admissible to prove conduct of an organization, whether corroborated or not and regardless of eyewitness.

Habit of a person is admissible only to corroborate other evidence.

Question 3

Statement or benevolent gesture expressing sympathy

Answer 3

for a person involved in an accident made to that person or their family is inadmissible in a civil case, but statement of fault shall be admissible. “I want to pay the hospital costs” is inadmissible. “It was my fault, I ran the red light” is admissible.

• The federal rules categorize this as non-hearsay. Florida categorizes it as an exception to hearsay.

Question 4

Character evidence

Answer 4

is not admissible to prove action in conformity with it on a particular occasion.

• EXCEPTIONS:
  
  • Pertinent Character of the Accused in a criminal case, if first offered by the accused (opening the door), or by prosecution to rebut the trait.
  • Pertinent Character of Victim if offered by the Accused. Example: Peaceful character trait of Victim by prosecution in a homicide case to rebut evidence that Victim was the aggressor.
  • The door is opened to testimony regarding reputation only. Not opinion!

Question 5

Subsequent Remedial Measures

Answer 5

are not admissible to prove negligence, a product defect, or culpable conduct in connection with the event. May prove other matters, such as ownership, control, or feasibility of precautionary measures, if controverted, or for impeachment.

Question 6

Opinion Testimony by Lay Witnesses:

Answer 6

The Code adopts a more restrictive view of the admissibility of opinions by lay witnesses. Lay opinions are admissible when:

1. The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in the form of opinions;
2. The testimony will not mislead the trier of fact; and
3. The opinions do not require special knowledge or training.

Question 7

Authoritative Texts and Treatises

Answer 7

In Florida, authoritative publications can only be used during cross-examination of an expert.

Excerpts from the publication may not be read into the record as substantive evidence. Moreover, the publication cannot be used to bolster the expert’s credibility.

Question 8

Privileges Related to Marriage:

Answer 8

Florida recognizes the privilege for confidential communications made between spouses during the course of a valid marriage. The privilege continues even after the marriage is over. Either party can invoke this privilege.

• This privilege relates to communications only. The privilege does not prevent a spouse from testifying as to his or her observations.
• Florida does not recognize the doctrine of spousal immunity (i.e., the spouse can be called to testify, but certain communications may be privileged).
• The statement must be made in a confidential setting or manner to be privileged.

Question 9

Clergy-Penitent Privilege:

Answer 9

A confidential communication between a person and a cleric made privately for the purpose of seeking spiritual counsel and advice in the usual course of practice is privileged.

• Who may invoke Privilege: the person, the guardian or conservator of a person, the personal representative of a deceased person, or the member of the clergy.

Question 10

Psychotherapist/Social Worker-Client Privilege

Answer 10

Florida also recognizes a psychotherapist-patient privilege for confidential communications between a patient and a psychotherapist for the purpose of diagnosis of a mental or emotional condition (including alcoholism and other drug addiction). Do not confuse this with the mere physician/patient privilege. A psychotherapist is:

1. a licensed or certified psychologist;
2. a person licensed or certified as a clinical social worker, marriage or family therapist, or mental health counselor under Florida law
3. a person authorized to practice medicine, or reasonably believed by the patient to be so authorized, who is engaged primarily in the diagnosis or treatment of mental or emotional condition
4. treatment personnel of licensed facilities engaged primarily in diagnosis or treatment of mental or emotional conditions and

an advanced registered nurse practitioner whose primary scope of practice is diagnosis or treatment of mental or emotional conditions

Question 11

Exclusion and Sequestration of Witnesses:

Answer 11

The Florida Evidence Code also provides that a witness in a criminal case may not be excluded from the courtroom during testimony of other witnesses if he is the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial

Question 12

Hearsay within hearsay

Answer 12

Florida permits admission of hearsay statements within other hearsay statements, as long as an exception exists for both levels of hearsay (e.g., A routine business record contains a statement made by a third-party regarding an immediate observation of an incident).

Question 13

Hearsay exceptions:

Answer 13

1. Spontaneous statement
2. Excited utterance
3. Statement made for medical treatment or diagnosis
4. Business records
5. Family records e.g. Bible
6. Former testimony

Question 14

Hearsay exceptions (declarant unavailable

Answer 14

1. Former testimony
2. Statement under belief of impending death
3. Statement against interest
4. Statement of personal or family history

Question 15

Dying Declarations-Statements Under Belief of Impending Death

Answer 15

are admissible in all civil and criminal cases

Question 16

Judicial Witnesses:

Answer 16

The judge is permitted to call her own witnesses and ask questions directly to witnesses (as long as she does not show bias).

Question 17

Expert testimony

Answer 17

Florida follows the Daubert standard, which is the same rule applied under the Federal rules.

• 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 opinion; however, the opinion is admissible only if it can be applied to evidence at trial.