Florida Evidence

Question 1

Is habit evidence admissible in Florida?

Answer 1

(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

Question 2

When are specific acts of misconduct admissible as character evidence?

Answer 2

acts must be strikingly similar and share unique characteristics

Question 3

Prior acts of sexual assault or child molestation:

Answer 3

are admissible only in criminal cases and D is charged with the same type of act

Question 4

When lay opinion witness testimony admissible?

Answer 4

(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

Question 5

Can criminal convictions be used to impeach?

Answer 5

Yes for (1) any crime involving dishonesty; or (2) any felony BUT the court has discretion to exclude the prior conviction

Question 6

Are specific instances of misconduct admissible for impeachment purposes?

Answer 6

No, unless it resulted in a conviction

Question 7

Is a testifying witnesses prior inconsistent admissible?

Answer 7

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)

Question 8

Criminal convictions may be used for impeachment if:

Answer 8

(1) for a felony; or a misdemeanor involving dishonesty

Question 9

Psychotherapist-patient privilege:

Answer 9

-protects confidential communications between a patient and psycho therapist for purpose of diagnosing a mental or emotional condition

Question 10

Generally, character evidence

Answer 10

cannot be proved by opinion testimony; the only permissible way to prove character is reputation testimony

Question 11

May a criminal defendant introduce evidence of the bad character trait of a victim?

Answer 11

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)

Question 12

What are valid ways to authenticate a writing?

Answer 12

(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

Question 13

Florida Accident Report Privilege:

Answer 13

• 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

Question 14

What is the Federal and Florida distinction for statement by a party opponent?

Answer 14

In Florida, it is a hearsay exception, rather than nonhearsay

Question 15

The Dying Declaration Hearsay Exception:

Answer 15

admissible in all civil and criminal cases

Question 16

Does Florida have a hearsay exception for learned treatises?

Answer 16

No; only admissible to attack credibility of an expert on cross examination once the treatise has been established as authoritative

Question 17

Does Florida recognize the Judgment/ Prior conviction hearsay exception?

Answer 17

No; past criminal convictions are not admissible as substantive evidence

Question 18

What is the best evidence rule?

Answer 18

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

Question 19

What is required to authenticate an unmanned video recording? (i.e. surveillance)

Answer 19

(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

Question 20

Does Florida recognize a physician patient privilege?

Answer 20

No

Question 21

What does the privilege for spousal confidential communications protect?

Answer 21

Confidential communications spouses make to one another during the course of a valid marriage

Question 22

Past recollection recorded hearsay exception:

Answer 22

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

Question 23

When a witness uses a recording to refresh her memory on the stand, the adverse party can:

Answer 23

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

Question 24

A vicarious admission is admissible if:

Answer 24

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

Question 25

When may a witness be excluded from the court room?

Answer 25

-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

Question 26

What witnesses cannot be excluded?

Answer 26

(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

Question 27

Is evidence of a witness’s bad character for truthfulness admissible?

Answer 27

yes, in the form of reputation testimony; and to attack the credibility of the witness.

Question 28

character evidence is inadmissible:

Answer 28

to prove that a person acted in conformance with their character

Question 29

In Florida when can a prior inconsistent statement be used to impeach a witness?

Answer 29

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

Question 30

Under the business record exception:

Answer 30

a business record made in the ordinary course of business, for a legitimate business purpose (I.e. complying with state safety regulations) are admissible

Question 31

withdrawn guilty and nolo pleas are:

Answer 31

inadmissible

Question 32

For the statement against interest exception of hearsay to apply:

Answer 32

the declarant must be unavailable to testify

Question 33

When does conduct qualify as a statement for purposes of the admission by a party opponent hearsay exception?

Answer 33

When the conduct is an intended as an assertion

Question 34

When is habit evidence admissible in Florida?

Answer 34

to corroborate other evidence showing that the habit occurred at the time in question.

Question 35

What is the rule regarding leading questions on direct examination?

Answer 35

Generally are inadmissible - a leading question is a question with yes or no answers or questions that suggest the desired answer

Question 36

Statement by a party opponent:

Answer 36

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

Question 37

When may a statement referring to liability insurance be admissible?

Answer 37

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

Question 38

In Florida is there a hearsay exception for civil judgments?

Answer 38

No

Question 39

As to judicially noticed facts, the judge:

Answer 39

has discretion to determine whether the judicially noticed fact is conclusive in civil and/or criminal cases

Question 40

Can witnesses be impeached with prior acts?

Answer 40

No, unless the act resulted in a CONVICTION (charge and arrests are insufficient)

Question 41

What can a party do when the other party’s witness using a recorded recollection to refresh their memory?

Answer 41

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

Question 42

when is the best evidence rule inapplicable?

Answer 42

When the fact to be proved has an existence independent of any writing the best evidence rule will not apply