Mix Flashcards
B driving truck and gets into accident with M. B sues M. At trial, only witness is S who at first tells investigator that M ran the red light. Then, at trial, S says that B ran the red light. A timely objection should be…
Overruled, prior inconsistent statement. for impeachment, a party may show that the w has, on another occasion, made statements that are inconsistent with some part of his present testimony. Credibility of W can be attacked by any party, including party who calls the W.
M made prior inconsistent statement. On x-exam, M is asked whether he has ever lied under oath. An objection should be…
Sustained, not proper impeachment. Florida does not allow an examining attorney to ask a w about prior bad acts or prior specific instances of misconduct that did not result in conviction (this is CONTRARY to federal rules, which allow a party to impeach a w by asking about prior bad acts that concern w’s character for truth and veracity)
A witness is asked on the state if he has ever been convicted of any crime. An objection should be…
Sustained. Improper question. FL follows the Fed rules regarding impeachment w crim convictions - convcition must be for FELONY (punished by more than 1 year) or misd involving dishonesty or false statement. However FL cts, unlike fed cts have discretion to exclude ANY conviction under 403 balancing test.
In civil suit, P calls S to testify that she knows D. S testifies that she is aware of D’s reputation in the community and that it was bad. An objection should be …
Sustained, only evidence of character trait of truthfulness is admissible to impeach. Bad character for truthfulness is admissible to attack cred of W, but here, S didn’t testify as to D’s bad character for truthfulness. General reputation is inadmissible, must relate to w’s truthfulness.
P v D in civil case. P says he has severe emotional disturbance following injuries caused by D. In D’s case, they call P’s psychiatrist who treated P for emotional disturbance. Objection should be…
Overruled, psychotherapist-patient privilege not applicable since P put his emotional condition in issue. P can’t use privilege when he puts his mental/emotional condition as element of claim.
D injures P while driving. P sues D. During case in chief, P offers certified copy of jury verdict and conviction finding D guilty of reckless driving for the incident that cause P’s inuries. Objection should be…
Sustained, Florida does not recognize the federal rules which allow certain convictions to be admitted as an exception to the hearsay rule
D injures P while driving. P sues D. During case in chief, P offers D’s guilty plea in reckless driving case. Objection should be…
A guilty plea is admissible in subsequent litigation when offered by the adverse party. The plea itself is considered an admission by a party opponent, which is an exception to the hearsay rule in Florida. Florida does not recognize hearsay exception for criminal convictions and a guilty plea is not a conviction.
D injures P while driving. P sues D. During case in chief, P calls D to the stand and says “Were you drinking the day of the accident?”. D objects, saying this is a leading question. What result?
Objection overruled. Leading questions are allowed on direct for w’s who are hostile, uncooperative, or opposing parties or person identified with opposing party
D injures P while driving. P sues D. During case in chief, P calls S and asks what D’s reputation is. What result.
Objection sustained. Character evidence is generally inadmissible in civil case.slight probative value of character is outweighed by danger of prejudice, possible distraction of jury from main issue and waste of time. The only relevance of testimony responsive to this q is to show that D is a careless driver and therefore was driving carlessley at the time of the accident. Character evidence is not admissible for this purpose.
D accused of fraud. During trial, govt calls D’s accountant concerning accounting advice she gave to D. Admissible?
No, accountant-client privilege. FL recognizes accountant-client privilege which protects info and comms btwn a CPA/LPA & client in rendition of accounting svcs. Client may assert the privilege
In criminal trial for fraud, govt calls D’s wife and asks if she is familiar with a fraudulent transaction involved in the case. D objects saying she’s incompetent to testify against her husband. Result?
Overruled - only matters privileged in florida are confidential marital comms. FL doesn’t recognize spousal immunity (i.e. the doctrine that one spouse is incompetent to testify against the other) however, FL recognizes privilege for confidential comms btwn spouses during course of valid marriage
Husband makes confidential communication to wife during marriage. A year later, they divorce. Later, ex wife is called to testify against ex husband about that communication. Result?
marital privilege would still apply to any confidential comms made during the valid marriage - the privilege survives divorce.
A duplicate is admissible to the same extent as an original unless
(1) a genuine issue is raised about the original’s authenticity or (2) under the circumstances it would be unfair to admit the duplicate in place of the original
A witness’s prior inconsistent statement is not hearsay if…
(1) it’s made under penalty of perjury at prior trial or proceeding (then can be used as substantive evidence in addition to impeachment evidence) or
(2) used to impeach
In Florida, dying declaration applies when:
(1) either civil or criminal case
(2) made while declarant believed death was imminent
(3) concerns the cause or circumstances of what he believes to be his impending death
A guilty plea is admissible in subsequent litigatio when…
offered by the adverse party. It is considered an admission of a party opponent
Lay opinions are admissible when
(i) w can’t readily and with equal accuracy and adequcacy, communicate what she perceived to trier of fact w/o testifying in the form of an opinion
(ii) testimony won’t mislead trier of fact and
(iii) opinions do not require special knowledge or training
The business records exception applies when
a record s made in the ordinary course of biz and for legitimate biz purpose
When the prosecution rests its case in chief, the judge, in front of the jury says to the defense, “I can’t wait to see your case. The prosecution has done a great job implicating your client.” Result?
In florida, trial judge is prohibited from summing up evidence or commenting to jury on weight of evidence or credibility of witness. The comments are improper and constitute reversible error.
When is a treatise admissible in florida?
Only to attack the credibility of an expert on x-exam once it has been established as authoritative - NOT as substantive evidence
Evidence of compromises or offers to compromise is ..
inadmissible to prove or disprove the validity or amount of a disputed claim. Conduct/statements made in course of negotiating a compromise also are excluded, therefore admissions of fact made during compromise negotiations are inadmissible.
T or F: a witness in Florida may be impeached by proof of a conviction of a crime
True. When W is untruthful about existence or # of their prior convictions, they may be proved by extrinsic evidence (cert copy of judgment of conviction
What is the accident report privilege?
In Florida, a privilege is recognized for written reports made by people involved in motor accidents. Such reports are for the confidential use of hte Dept of Highway Safety and not admissible in either a crim or civil trial that arises out of the accident. Oral statements made to LEO for purpose of completing report also are included within priv, except that at crim trial, LEO may testify to any statement made to him by person involved in accident (provided that person’s priv against self incrim is not violated). Urine/BAC IS admissible, not priv.
When is habit evidence admissible in FL?
Habit evidence in FL is admissible to prove a pattern of behavior to corroborate other evidence that shows the habit occurred at the relvant time. Iti s NOT admissible as direct evidence.