Florida Evidence Flashcards
PRESENTATION OF EVIDENCE>
Judge’s Role
The judge rules upon objections to evidence and will either admit or deny the admission of pieces of evidence.
- The lawyers present evidence through witness testimony, physical objects and documents, and other methods.
Preliminary Questions of Admissibility
- FRE—Allowed to consider otherwise inadmissible material
- FL—Not specifically allowed to consider inadmissible material
- Preliminary questions include competency of witnesses, admissibility of evidence, and the existence of privileges—judge acts as gatekeeper
Summing up and comment by judge After the Presentation of Evidence, A Florida judge CANNOT: (Judges are Podded Plants)
- Summarize the evidence;
- Comment on the evidence;
- Comment on the credibility of a witness; or
- Comment on the guilt of the accused.
PRESENTATION OF EVIDENCE >
Judicial Notice
- Adjudicative facts—Facts about the particular case; typically require proof and are decided by the jury
- Legislative facts—Laws, regulations, rules, and government actions
FRE — Judges have discretion to take judicial notice ONLY of adjudacative facts that are not subject to reasonable dispute because they are commonly known (or can be accurately and readily determined from reliable sources).
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FL Judicial Notice – applies to trial courts and appellate courts .
Florida courts MUST take judicial notice of
- Decisional, Constitutional, and Public Statutory law and resolutions of the Florida Legislature and U.S. Congress.
- Florida and U.S. Supreme Court and Courts of Appeals rules.
Florida courts MAY take judicial notice of
- other state laws and rules of court
- other facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.
- 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.
- The court must take judicial notice of these discretionary issues when a party requests it and has given adverse parties timely written notice of the request and provided the court with sufficient information to take notice of the matter.
Effect in FL—When the court takes judicial notice of a fact, the court may instruct the jury:
- Civil cases — Either (i) that the jury must a judicially noticed fact as conclusively proven, or (ii) that the jury may accept a judicially noticed fact as conclusively proven
- Criminal cases—That the jury MAY accept a judicially noticed fact as conclusively proven
PRESENTATION OF EVIDENCE >
Witness Exclusion
Witness Exclusion (NON-PARTIES)
- At the request of a party or on the court’s own initiative, non-party witnesses are usually excluded from the court during the testimony of other witnesses.
FEDERAL Exceptions to Witness Exclusion
- A non party witness whose presence is essential to a party’s case
- By statute, vitim who is allowed to be present
- If a party is not a natural person (e.g., a corporation), the party can designate a representative to be present as the party
FLORIDA Exceptions to Witness Exclusion
Civil cases– Court cannot exclude:
- A PARTY who is a natural person; or if corporation, the designated officer or employee of a non-natural party (e.g., a corporation); or
- A NON-PARTY whose presence is necessary to the presentation of the party’s case.
Criminal cases – Court cannot exclude:
- The victim, the next-of-kin of the victim, parent or guardian of the victim, or the victim’s lawful representative
- police officer in charge of a criminal investigation
- UNLESS, presence would be PREJUDICIAL TO THE DEFENDANT
PRESENTATION OF EVIDENCE >
Presumptions in Civil Cases
A presumption is a conclusion that the trier of fact is required to draw after a party establishes certain underlying facts.
Types of Presumptions
1) Conclusive — Must be taken as true; may not be challenged by contrary evidence
- Ex: A statute establishes that a party who is under the age of 16 cannot consent to sexual intercourse. If the prosecution establishes that a victim of rape was under the age of 16, the court must conclude that the victim was incapable of consenting, regardless of any evidence to the contrary.
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Rebuttable — Allows contrary evidence; BUT if NO contrary evidence, MUST be taken as true. 2 Types:
2) “Bursting the bubble” presumptions
- If the responding party produces contrary credible evidence, the presumption disappears
3) Burden shifting presumptions –FL has, MBE doesnt
- A more powerful presumption that affects the burden of proof…
- Merely producing contrary evidence will NOT rebut the presumption; instead, the burden of proof shifts to the responding party to SHOW the nonexistence of the presumed fact.
Distinctions
FRE — All presumptions are conclusive or bursting bubble.
FL—Has conclusive presumptions, bursting bubble presumptions, and burden shifting presumptions
- Example 3: Bursting Bubble presumption: You present evidence that you placed an item in the mailbox with sufficient postage and it was addressed correctly. It is presumed to have been received by the addressee, unless the addressee presents evidence that he did not receive it.
- Example 4: Burden-shifting presumption: When a child is born to married parents, there is a presumption that the child is of both the spouses. Paternity can be disproved by one parent, but that parent has the burden of showing that they are not the parent.
Relevancy
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
This section shall not be construed to mean that evidence of the existence of available third- party benefits is inadmissible.
Character > Method of Proof
Character of a person, when admissible, may be proven ONLY through REPUTATION testimony.
- specific acts / opinions are NOT allowed.
Character > Criminal Cases—Accused and Victim
Character of the Accused
- ONLY If the defendant opens the door by presenting evidence of THEIR OWN GOOD CHARACTER can the prosecution offer bad character evidence of the Defendant to rebut the evidence of the defendant’s good character trait.
Character of the Victim
- After the defendant has attacked the victim’s character, the prosecutor may use only reputation evidence of ONLY the victims character;
- this DOES NOT “open the door” to the DEFENDANT’s character !!!!!
Character of a person, when admissible, may be proven ONLY through REPUTATION testimony.
Character > Specific Act Evidence
Admissibility of Specific Acts Evidence
- In Florida, the admission requires a finding by the court that the jury could reasonably find by CLEAR AND CONVINCING evidence that the other similar act OCCURED
- MBE is a preponderance
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1) ESSENTIAL ELEMENT – If character is an essential element of a charge, claim, or defense, character evidence (including evidence of specific acts) is admissible. Most commonly arises in these cases:
- Negligent hiring — Character of the person hired may be relevant to the defendant’s negligence
- Defamation — Character of the plaintiff may be relevant to the truth or falsity of the allegedly defamatory statements
- Child-custody cases — Character of the parent or guardian often relevant to the best interests of the child
2) Cross Examination of Character Witness (Charachter witness essentially becomes an essential element of a defense)
- When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying.
- Keep in mind that evidence of a bad act that is otherwise admissible is especially subject to challenge under Federal Rule 403
3) MIMIC (Motive, Intent, absence of Mistake, Identity, or Common plan)
Florida Williams Rule (Criminal) – Prosecution MUST give the defendant at least 10 DAYS’ NOTICE if it intends to use specific acts in their Case-in-Chief (MIMIC evidence) describing which acts the prosecution intends to use; (Not required for impeachment or rebuttal evidence)
- Judge must hold a Williams hearing, during which the judge must determine whether:
- (i) The jury could reasonably find by CLEAR AND CONVINCING evidence that the other similar act occurred; and
- (ii) The probative value is substantially outweighed by the danger of unfair prejudice.
Reverse Williams Rule – Applies when the accused claims that someone else committed the offense and seeks to introduce specific acts of the other person to prove that he is the real perpetrator. FL Standard much higher than (Federal - relevant);
- FL - the acts must be strikingly similar
4) Routine or Habit Evidence
- ORGANIZATION – admissible even if not corroborated
- PERSON – ONLY if CORROBORATED (e.g., habit testimony supplements original testimony, other evidence)
Example
- A witness testifies that he “mailed the form” on Friday. He also testified that he always mails the forms and does so every Friday. Because his testimony about his habit corroborates his memory that he acted in accordance with his habit by mailing the particular form in question on Friday, the habit evidence is admissible.
- If he did not testify as to his memory about mailing the form in question, the habit evidence would not be admissible because it would not be corroborating evidence that shows the habit was followed at the relevant time.
WITNESSES
Competence – 4 elements
- Must take an oath to testify truthfully;
- Must have perceived something;
- Must remember what they perceived; and
- Must have the ability to communicate
Note – In Florida, a person is disqualified to testify as a witness if the court determines the person is
- (i) incapable of expressing himself in such a way as to be understood either directly or through interpretation; or
- (ii) incapable of understanding the duty to tell the truth
Child as Witness
- The court might not require the taking of an oath if it determines that the child understands the duty to tell the truth and the duty not to lie.
Interpreters
- interpreters may be used for any witness who needs assistance understanding, or communicating.
Witnesses > Impeachment
1) Witness’s PRIOR INCONSISTENT STATEMENT – Extrinsic evidence (Only after denial)
- Upon request of the adverse party, the witness MUST be given the prior inconsistent statement. (no disclosure for MBE)
First – Opportunity to explain or deny
- Requires that Before the extrinsic evidence of the prior statement is permitted, the non-party witness MUST be shown the statement and allowed an opportunity to explain or deny;
- the adverse party is then allowed to question the witness about the statement.
- If a witness denies making or does not admit to making the prior inconsistent statement, THEN EXTRINSIC evidence of the statement is admissible to impeach
Prior CONSISTENT statement
- if the witness has been accused of changing his or her story, or being bribed or pressured or having an improper motive or bias, can be rehabilitated with a consistent statement that the witness made BEFORE the alleged motive arose
2) BIAS
3) SENSORY COMPETENCE
4) WITNESS CHARACTER FOR UNTRUTHFULNESS
- REPUTATION witness OR CONVICTIONS involving dishonesty OR Felonies
- No Prior Bad Acts / Opinioin Testimony
Rehabilitation – Evidence of a witness’ character for truthfulness may be offered only after it has been specifically attacked. Impeachment for BIAS is not a sufficient attack on the witness’s character for truthfulness.
- REPUTATION ONLY – Remember that this rebuttal witness may be cross-examined on whether she has heard of any specific acts of untruthfulness by the primary witness, but counsel must have a good faith basis to ask such a question.
1) FL – Old convictions OK
- Civil cases—Judge decides whether the prior conviction is “too remote” in time to have a bearing on the present character of the witness.
- Criminal cases—Judge decides whether the probative value of the prior conviction is substantially outweighed by the danger of unfair prejudice.
2) Criminal Defendant as Witness (no reverse 403 protection)
- FL—No special protection for the accused; conviction admissible unless the probative value is substantially outweighed by the danger of unfair prejudice
3) Pardons DO NOT BAR use of conviction
- FL—Does not bar the use of convictions that have been pardoned. (MBE bars)
4) Juvenile Convictions BANNED for IMPEACHMENT purposes
- FL—Bans all use of juvenile convictions for IMPEACHMENT (MBE allows)
5) Procedure for use of prior convictions
- Not permitted to ask about the specifics of the prior conviction (including naming the crime involved) UNLESS the accused is either untruthful or denies the conviction
- Defendant’s reputation character witnesses can be cross-examined as to whether they have heard of specific arrests or convictions of the defendant.
OPINION TESTIMONY
Lay Witnesses — Opinion testimony Admissible if
- (i) the witness cannot adequately or accurately communicate her perception without providing an opinion, and
- (ii) the opinion does not mislead the jury
Expert Witnesses
- An expert witness’s opinion testimony is improper if no scientific, technical, or other specialized knowledge is required to assist the trier of fact’s understanding of the evidence or a fact in issue.
Ultimate issue
- Expert witness can testify as to the ultimate issue in the case (e.g., whether a person was negligent, but not gross negligence)
- FL distinction—Expert may state an opinion as to whether the accused had a required mental state
- May NOT state an opinion that amounts to a legal conclusion (e.g., whether the accused acted with a “depraved mind,” or lacked “criminal capacity”)
Basis of opinion
- FL distinction—Expert CANNOT testify as to otherwise inadmissible facts or data when giving their opinion.
TANGIBLE EVIDENCE
Requires a foundation for admission (remember CRIT):
- Competent
- Relevant
- Identification
- Trustworthiness
FL—May use a photograph of wrongfully taken property to prove the theft of that property, allowing the property to be returned to the owner. The photograph mus tinclude a writing:
- Containing a written description of the property;
- Containing the name of the owner;
- Containing the location where it was taken;
- Containing the name of the investigating officer;
- Containing the date the photo was taken;
- Containing the name and signature of the photographer; and
- Made under oath by the investigating officer.
FL Best Evidence Rule Follows the FRE, Except Negotiable Instrument Rule:
In Florida, a duplicate is admissible to the same extent as the original UNLESS:
- there is a genuine question as to the original’s authenticity
- the circumstances make it unfair to admit the duplicate or
- the document is a negotiable instrument, security, or writing that evidences a right to the payment of money.
Evidence of the original’s contents is only admissible if the proponent has accounted for the original’s absence
- a photocopy of a negotiable instrument is not admissible as a duplicate unless the proponent can produce evidence that sufficiently explains the original’s absence.
FL Business Records – Business record may be admitted without calling a witness (i.e., it is self-authenticating) if:
- it contains an affidavit stating the required regularity and maintenance of the business record; and
- the affidavit is made by the custodian of the record of another qualified person
PRIVILEGES
Marital Privileges — Spousal Immunity Privilege – NOT recognized in FL
Florida Husband-Wife Privilege (Marital Communications Privilege) Does not apply:
- In a case if one spouse is suing the other spouse;
- In a criminal case when one spouse is charged with a crime against the other spouse, his/her property, or the person or property of a child of either spouse; or
- In a criminal proceeding, if introduced by the defendant-spouse
Florida Lawyer-Client Privilege — In addition to the general rules, the privilege in Florida also applies to communications between:
- The Department of Revenue’s child enforcement lawyer and a person seeking or using those program services; and
- A fiduciary or guardian for another person and a lawyer with respect to the relationship.
The privilege does NOT apply to communications that:
- are relevant to parties, claiming through the same deceased client (will contest, comunications relevant to clients competence); or
- involving intention, or competence of a client, if the lawyer is in an attesting witness to the signing of the document (communications are relevant to the client’s intent or competence)
Florida Physician-Patient — Patient holds the privilege for purposes of treatment or diagnosis.
- Physician can only disclose such information with the patient’s consent and must disclose the information if subject to a court order.
No Privilege when
- condition of the patient is at issue or
- in malpractice cases brought by the patient against the physician
Florida Psychotherapist-Patient — Protects confidential communications for the purpose of diagnosis or treatment of mental or emotional condition, including alcoholism and other drug addiction
- The patient holds the privilege, but the psychotherapist must assert the privilege on the patient’s behalf.
Does not apply to
- cases where condition is in issue,
- court-ordered exams, or
- commitment proceedings
Other Privileges
1) Clergy-Penitent — Protects confidential communications “made privately for the purpose of seeking spiritual counsel and advice,” not those made in group settings
2) Accountant-Client — Protects confidential communications made by a client to his accountant; exceptions are similar to attorney-client privilege
3) Journalist Privilege — Professional journalists have a qualified privilege to not disclose information or the identity of sources.
- Does not apply to physical evidence, eyewitness observations, or recordings of crimes
- When there is a compelling state interest presented to the court, the court may order disclosure.
- The privilege is not waived if the journalist publishes or broadcasts the information
- Does not extend to non-professional journalists (e.g., bloggers, book authors, statements on social media, etc.)
4) Trade Secrets owner of a trade secret may refuse to disclose and prevent another from disclosing the trade secret, so long as it does not
- (1) conceal fraud or
- (2) otherwise work an injustice.
PUBLIC POLICY EXCLUSIONS
Subsequent Remedial Measures – 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 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 when offered for another purpose, such as proving OWNERSHIP, CONTROL, or the feasibility of precautionary measures, if controverted, or impeachment.
Offers and Settlements
- Evidence of an offer to compromise a claim which was disputed – NOT ADMISSIBLE to prove liability.
- Admissions NOT admissible if coupled with offer (not severable) we want people to settle
Offers to Pay Medical Expenses – Not admissible to prove LIABILITY for INJURIES
- Statements (Admissions) or conduct accompanying the offer MAY be admissible.
- Admissions coupled with offer to pay medical bills are ADMISSIBLE – CAN be severed and thus admission is ADMISSIBLE, offer is not
- (why difference from offers to settle? settling is in favor of public policy, not payment of someones medical bills)
Plea Negotiation — Statements made during plea negotiations are inadmissible in civil and criminal cases unless
- (1) another statement from the negotiation has been admitted and fairness requires the admission of the current statement or
- (2) the qualifying statement is being offered in a perjury prosecution.
Mediation — Statements made during mediation are confidential unless waived by all parties.
- A written agreement signed by the parties as part of mediation is NOT protected.
Mandatory Florida Accident Reports
- Excluded in both civil and criminal cases
Statements of sympathy—NOT admissible
- BUT statements indicating fault are ADMISSIBLE
Victim of sexual assault or domestic violence—Privilege to:
- Refuse to disclose communications with a sexual assault or domestic violence, counselor; and
- Prevent the counselor from disclosing such communications
FL Rape Shield — The prior consensual sexual activity of a victim is generally inadmissible, but it IS admissible in a sexual battery prosecution if:
- (1) consent is at issue and
- (2) such evidence tends to establish a pattern of conduct or behavior by the victim that is so similar to the conduct or behavior in that case at hand that it is relevant to the issue of consent.
NON Hearsay
Prior inconsistent statements (SUBSTANTIVE + IMPEACHMENT)
a prior inconsistent statement is considered nonhearsay and admissible as SUBSTANTIVE and impeachment evidence if the statement was made at a FORMAL PROCEEDING under penalty of perjury (trial, hearing, other proceeding, or deposition)
- in Florida, a statement made during a police interrogation does not qualify as a statement made at a formal proceeding under penalty of perjury. However, it is still admissible as impeachment evidence.
Prior statement of identification (SUBSTANTIVE + IMPEACHMENT)
A previous out-of-court identification of a person after perceiving that person (e.g., lineup) is not hearsay and may be admissible as substantive evidence.
- Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.
