Florida Evidence Flashcards
Is habit evidence admissible in Florida?
(1) evidence of a person’s habit is only admissible to corroborate other evidence showing a habit occurred; (2) evidence of business routine practice is admissible
When are specific acts of misconduct admissible as character evidence?
acts must be strikingly similar and share unique characteristics
Prior acts of sexual assault or child molestation:
are admissible only in criminal cases and D is charged with the same type of act
When lay opinion witness testimony admissible?
(1) witness can’t communicate what he perceived w/o using opinions; (2) testimony won’t mislead the jury; and (3) opinion doesn’t require special knowledge
Can criminal convictions be used to impeach?
Yes for (1) any crime involving dishonesty; or (2) any felony BUT the court has discretion to exclude the prior conviction
Are specific instances of misconduct admissible for impeachment purposes?
No, unless it resulted in a conviction
Is a testifying witnesses prior inconsistent admissible?
Yes for impeachment purposes ONLY if not made under oath; and
as substantive and impeachment evidence if the statement was made under oath (or it fits a hearsay exception)
Criminal convictions may be used for impeachment if:
(1) for a felony; or a misdemeanor involving dishonesty
Psychotherapist-patient privilege:
-protects confidential communications between a patient and psycho therapist for purpose of diagnosing a mental or emotional condition
Generally, character evidence
cannot be proved by opinion testimony; the only permissible way to prove character is reputation testimony
May a criminal defendant introduce evidence of the bad character trait of a victim?
Yes, but it can only be reputation testimony and must be relevant to show the defendant’s innocence (I.e. if defendant is arguing self defense)
What are valid ways to authenticate a writing?
(1) evidence that the party against whom the writing is sought admitted its authenticity; (2) testimony of someone who sees it executed or hears it acknowledged; (3) evidence that the handwriting is genuine; or (4) jury can compare the writing with another writing proved to be genuine
Florida Accident Report Privilege:
- protects written reports made by persons involved in a motor vehicle accident
- meant for the confidential use of the DHS
- not admissible in criminal or civil cases
What is the Federal and Florida distinction for statement by a party opponent?
In Florida, it is a hearsay exception, rather than nonhearsay
The Dying Declaration Hearsay Exception:
admissible in all civil and criminal cases
Does Florida have a hearsay exception for learned treatises?
No; only admissible to attack credibility of an expert on cross examination once the treatise has been established as authoritative
Does Florida recognize the Judgment/ Prior conviction hearsay exception?
No; past criminal convictions are not admissible as substantive evidence
What is the best evidence rule?
to prove a writing with material terms, the original must be produced; BUT if the fact to be proven has an independent existence the best evidence rule doesn’t apply
What is required to authenticate an unmanned video recording? (i.e. surveillance)
(1) prosecutor demonstrates the video camera was operating properly on the date in question; and (2) the particular tape was the one used in the camera on the date in question
prosecution does not need to demonstrate the person in the video was probably the defendant
Does Florida recognize a physician patient privilege?
No
What does the privilege for spousal confidential communications protect?
Confidential communications spouses make to one another during the course of a valid marriage
Past recollection recorded hearsay exception:
applies when: (1) record/ writing about a matter that the witness once had knowledge; (2) but now has insufficient recollection to accurately testify about the matter; (3) and the record is shown to have been made by the witness when the information was fresh in the witness’s mind
-the record can only be read by witness to the jury; not introduced as an exhibit
When a witness uses a recording to refresh her memory on the stand, the adverse party can:
have the writing produced at trial to inspect it, cross examine the witness on it, and introduce into evidence the portions relating to the witness’s testimony
A vicarious admission is admissible if:
is admissible if the declarant was an agent/employee of the employer at the time the statement was made and; an employee relationship existed at the time the statement was made; and the statement was made within the scope of the employment relationship
When may a witness be excluded from the court room?
-judge will order a witness be removed on a party’s motion (or sua sponte) so the witness cannot listen to the testimony of other witnesses
What witnesses cannot be excluded?
(1) if the witness is a victim of the crime, victims next of kin, parent or guardian of a minor victim; (2) person statutorily authorized to be present; (3) employee of a party; (4) person whose presence is essential to the presentation of a party’s claim
Is evidence of a witness’s bad character for truthfulness admissible?
yes, in the form of reputation testimony; and to attack the credibility of the witness.
character evidence is inadmissible:
to prove that a person acted in conformance with their character
In Florida when can a prior inconsistent statement be used to impeach a witness?
If the witness has a chance to deny or explain the statement and the opposing party must be given a chance to examine the witness about the statement before the statement is introduced by extrinsic evidence
Under the business record exception:
a business record made in the ordinary course of business, for a legitimate business purpose (I.e. complying with state safety regulations) are admissible
withdrawn guilty and nolo pleas are:
inadmissible
For the statement against interest exception of hearsay to apply:
the declarant must be unavailable to testify
When does conduct qualify as a statement for purposes of the admission by a party opponent hearsay exception?
When the conduct is an intended as an assertion
When is habit evidence admissible in Florida?
to corroborate other evidence showing that the habit occurred at the time in question.
What is the rule regarding leading questions on direct examination?
Generally are inadmissible - a leading question is a question with yes or no answers or questions that suggest the desired answer
Statement by a party opponent:
hearsay exception; statement was made by a party; and is now being offered against that party
the statement is admissible; this exception also includes prior guilty pleas entered by the party
When may a statement referring to liability insurance be admissible?
if it contains an admission and the reference to the liability insurance cannot be severed without lessening the value of the statement as an admission
In Florida is there a hearsay exception for civil judgments?
No
As to judicially noticed facts, the judge:
has discretion to determine whether the judicially noticed fact is conclusive in civil and/or criminal cases
Can witnesses be impeached with prior acts?
No, unless the act resulted in a CONVICTION (charge and arrests are insufficient)
What can a party do when the other party’s witness using a recorded recollection to refresh their memory?
have the recollection produced at trial, inspect them, cross examine the witness on them, and introduce into evidence portions of the record that relate to the witness’s testimony
when is the best evidence rule inapplicable?
When the fact to be proved has an existence independent of any writing the best evidence rule will not apply
