P.M. Session (PQs) Flashcards
1
Q
Hypnosis in Florida
A
When a witness provides a description of a suspect at the time of the crime, and the information elicited from a subsequent hypnotic session is consistent with that previous description, AND the witness testifies in court based on an independent recollection of the events, the testimony IS admissible. So this requires:
- Consistent testimony;
- Testifying on an independent recollection of the events.
2
Q
Prior written statement procedure in Florida
A
In Florida, a prior statement that is written must be SHOWN to the witness who wrote it before the witness can be examined about it
3
Q
Federal Rule - Dying Declaration
A
Under the federal rules, the dying declaration exception applies only in homicide prosecutions or civil actions.
4
Q
Florida Rule - Dying Declaration
A
Under the Florida version, this exception applies in all civil and criminal cases.
5
Q
Federal & Florida Rule - Dying Declaration
A
The witness need not have actually died.
6
Q
Will the Florida supreme court review a circuit court decision passing on the validity of bonds?
A
Yes.
7
Q
Does the Florida supreme court have the power to issue common law writs of certiorari?
A
No, circuit courts and district courts of appeal do.
8
Q
Only the _____ can certify questions to the supreme court.
A
District courts of appeal
9
Q
The Supreme Court CAN/CANNOT review circuit court decisions addressing a statute’s validity?
A
CANNOT
10
Q
Does a promoter “bind” the corporation in preincorporation contracts?
A
No, only the promoter is bound.
11
Q
When does a corporation adopt a contract?
A
When it accepts the benefits of a preincorporation contract, and this makes the corporation liable. (however, unless there is a novation, the promoter continues to be liable).
12
Q
If a demand is made for a felony charge (or a felony + misdemeanor charge), when must the trial be held?
A
Within 50 days.
13
Q
If a demand is NOT made in a felony charge, when must trial take place?
A
175 days from arrest/custody.
14
Q
Does Florida recognize a privilege for written reports made by persons involved in motor vehicle accidents?
A
Yes, and this includes statements made in the report itself, as well as statements made to a law enforcement officer for the purposes of completing the report.
15
Q
Is a statement offered to prove knowledge hearsay?
A
No, because it is not for the truth of the matter being asserted.
16
Q
To meet the excited utterance exception, the declaration must…
A
be made under the stress of excitement produced by the startling event and must concern the immediate facts of the startling event
17
Q
In Florida, is there an exception to the hearsay rule for learned treatises?
A
No, and they cannot be admitted as substantive proof of the information they contain.
18
Q
For what purposes is a treatise admissible in Florida?
A
To attack the credibility of an expert, once the treatise has been established as authoritative.
19
Q
Is jurisdiction proper under Florida’s long arm statutory provision when a contract is breached in Florida by failing to perform an act that was due to be performed in Florida?
A
Yes.
20
Q
What speedy trial provisions are available to a defendant who escaped/is out of state?
A
The defendant is not entitled to the prosecution of the speedy trial provisions until she returns to the county that filed charges, and files a written notice with the court and the prosecutor that she has returned.
21
Q
Does Florida recognize the doctrine of spousal immunity?
A
No!
22
Q
The only marital privilege Florida recognizes is the…
A
Privilege for confidential communications made between spouses during the course of a valid marriage (only covers statements made between the two).
23
Q
In Florida, a defendant’s witness can only use _____ evidence to prove the defendant’s character.
A
Reputation.
The witness cannot give her personal opinions concerning the defendant’s character traits.
24
Q
How may service of process on a minor be effected?
A
By service on the minor’s parent.
25
When is Sunday service permitted?
Only when the plaintiff states by affidavit that he has reason to believe the defendant will flee the state.
26
What does abode/service process require?
It requires that process be left with a resident of defendant's abode who is aged 15 or older. (i.e. cannot leave the process under the front door without informing that person of the contents of the process.
27
When may service be permitted on a defendant's spouse?
Only if the spouse requests such service or the spouse is also a party to the action, and the spouse and the party to be served are residing together.
28
When do nonprefered shares get dividends?
If a corporation has two or more classes of shares, with one having preference upon liquidation, dividends may be paid to the nonpreferred shares only IF the total assets are sufficient to pay all liabilities and also the liquidation preference.
29
When is a motion to sever timely?
At least 10 days before trial.
30
What happens if a dividend is paid while a corporation is insolvent?
Such a dividend constitutes a fraudulent conveyance for which shareholders are **directly liable** regardless of their **knowledge or lack of knowledge** of the insolvency.
31
When may substituted service upon the secretary of state be authorized?
When the claim against a foreign corporation arises out of, or is related to, the defendant's business in the state. (i.e. cannot use this if the injuries arose out of a transaction in Texas).
32
Where may a nonresident of Florida sued in a Florida court be sued?
In ANY county.
33
Clergy privilege
A person has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication by the person to a member of the clergy in the clergy member's capacity as a spiritual advisor.
34
Can a “clergy” be someone that a person reasonably believed to be so?
Yes, he doesn't have to actually be a clergy.
35
When/how may challenges for failure to state a claim be asserted?
They may be asserted in the responsive pleading or by motion, and such a defense is not waived by any previously filed motion.
36
Is SMJx waived if not raised in the initial responsive motion?
No, and such a challenge is not subject to waiver during either trial or appeal, and that challenge may be asserted in the responsive pleading or by motion.
37
What is the extent of a director's liability for an improper distribution?
He is liable regardless of actual knowledge of the corporations insovency.
38
May a director receive contribution from shareholders aware that the distribution was improper?
Yes, but not from those who had no knowledge.
39
What may creditors recover from improper distributions?
If it is a fraudulent conveyance, the creditors may recover the amount of the improper distribution from the shareholders.
40
What type of action is a “quiet title” action?
It is an in rem action that will fully adjudicate the interests of all persons in the property.
41
What are the characteristics of a quiet title action?
* Upon entry of a court judgment in the quiet title action, all persons who previously claimed an interest in the property will lose their interest;
* In order to bind an out-of-state owner, at a minimum notice must be provided by mailing such notice to their known address in that state;
* A judgment in the quiet title action will not impose any personal liability on persons claiming an interest in the property
42
When must a hearing be held on a motion for expiration of speedy trial?
The hearing must be held within five days, and if the court finds that the delay is NOT excusable, they must order the D tried within 10 days. If the court finds that the delay WAS excusable, trial must commence within **90 days.**
43
Is the repurchase of corporate shares treated as a distribution?
Yes, and it is subject to the same financial tests applicable to the distribution of dividends.
44
What is the “corporate opportunity” doctrine?
A director failing to give his corporation a chance to act on a business opportunity in which the corporation would be interested may be liable under this doctrine.
* It does NOT matter whether the director is active in the day-to-day operations of the corporation
45
When does a corporate vice president have implied authority to act?
Only when the president is dead or incapacitated.
* Courts are split as to whether a corporate president may sue on behalf of the corporation absent board approval.
46
When are communications between a corporate employee and the corporation's attorney protected by the attorney-client privilege?
If:
1. the communication would not have been made but for the contemplation of legal services;
2. the employee making the communication did so at the direction of a corporate superior;
3. the superior made the request of the employee as part of the corporation's efforts to secure legal services or advice;
4. the content of the communication relates to the legal services being rendered and the subject matter of the communication is within the scope of the employee's duties; and
5. the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
47
What is the rule regarding unknown eavesdroppers?
Florida follows the federal rules regarding unknown eavesdroppers. The privilege is NOT abrogated if the confidential communication is overheard by someone unknown to the parties; the privilege still applies to the parties to the confidential communication.
48
What is the modern trend regarding testimony by eavesdroppers?
As long as the holder of the privilege was not negligent, there is no waiver of the privilege and the eavesdropper will be prohibited from testifying
49
Will dissolution occur where a general partner withdraws?
No, as long as there is at least one general partner in the firm and the partnership agreement permits the partnership to be carried on.
50
Will death of a limited partner dissolve the limited partnership?
No.
51
May a court deny a motion for discharge if the failure to hold a trial is attributed to the accused, a co-defendant, or counsel?
Yes, any of these parties.
52
When may a witness give his opinion to another's mental condition or state?
Only if it can be shown that he had the opportunity to observe the subject.
* the person need not be an expert trained in psychology or psychiatry (i.e. testimony on insanity is not limited to ONLY experts)
53
A written deposition is generally subject to the same provisions as…
Oral depositions.
54
What is true of oral depositions?
* D has 30 days in which to serve cross questions on other parties and the officer before whom the deposition will be taken;
* If D serves cross questions for the written deposition, plaintiff's attorney may serve recross questions within 10 days;
* If the D objects to questions that have been submitted by P's attorney, she may move the court to prohibit the asking of such questions
55
Florida's privilege for sexual assault victims
Florida recognizes a privilege for confidential communications between a sexual assault counselor and a sexual assault victim, and between a psychotherapist and a patient.
56
Does Florida recognize a general physician-patient privilege?
No. However, a physician-patient privilege does exist where the physician is diagnosing and treating a mental or emotional condition.
57
When is net worth relevant for discovery purposes?
Net worth is not relevant absent some claim for punitive damages (which are rarely obtained)
58
Does a shareholder have the right to inspect financial statements and accounting records of a corporation?
Yes, any shareholder may if:
* he gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy; and
* His demand is made in good faith and for a proper purpose;
* He describes with reasonable particularity his purpose and the records he desires to inspect; and
* The records are directly connected with his purpose
59
What objection is NOT waived if the objection was not made at the time a deposition was taken?
That the deponent was mentally incompetent.
60
What is an affiliated transaction?
A significant transaction (such as a merger, slae of more than 10% of assets, or dissolution) with an interested shareholder who beneficially owns more than 15% of the corporation's outstanding shares.
61
What are the requirements for affiliated transactions?
In addition to the approval generally required by law or the corporate charter, an affiliated transaction must also be approved by:
1. A majority of the corporation's disinterested directors, or
2. two-thirds of the remaining disinterested shareholders
NOTE: the statute does not apply to any corporation with fewer than 300 shareholders
62
What MUST the prosecutor do upon D's notice of intent to participate in discovery?
Must provide for inspection, photographing, testing, and copying any object of or obtained from the D
* The prosecutor is entitled to provide any copy of D's grand jury testimony
* The P is required to provide D with any statements/information against her
63
What if a P refuses to disclose a statement against the D in discovery?
The trial court may order that the statement be excluded as evidence
64
Is a guilty plea a hearsay exception?
Yes, it constitutes a party-opponent admission and is fully admissible both as substantive evidence and as impeachment evidence
65
Does a party and his attorney have the right to attend the deposition even if the party will also testify?
YEs.
66
If a deponent refuses to answer any question, the proponent of the question has what choices?
1. completing the examination;
2. adjourning
The proponent may then move in the court where the action is pending or in the district where the deposition is being taken for an order directing the deponent to answer.
67
Upon motion of ANY party or the deponent upon grounds of annoyance, embarrassment, or oppression, the court in which the action is pending or in the district where the deposition is being taken may order…
1. that the deposition cease forthwith or;
2. the issuance of a protective order
The deponent may require the suspension of the deposition until a court ruling on the motion to terminate may be obtained
68
May a corporation in Florida be held vicariously liable for punitive damages in a situation where an individual employer would be so liable?
Yes.
69
Punitive damages may be imposed for the conduct of an employee or agent only if:
The conduct of the employee was intentional misconduct or gross negligence and;
1. the corporation actively and knowingly participated in the conduct;
2. the officers, directors, or managers knowingly condoned, ratified, or consented to the conduct; or
3. the corporation engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered.
70
Must the defendant be present for jury selection?
Jury selection, which includes exercising peremptory challenges, is one of the essential stages at which the defendant must either be present or waive his presence.
71
Normally, can the deposition of a witness be used affirmatively at trial?
No, it cannot, unless the witness is unavailable for trial. Its use is reserved for contradictions or impeachment.
72
When a character witness testifies to the good character of the defendant, may the witness be cross-examined regarding the basis of his statement that the defendant's character is good?
Yes.
73
What does the past recollection recorded exception to the hearsay rule provide?
A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly may be read to the jury under this exception.
* A party may read into evidence such a memorandum or record when it is admitted, but it is not admissible as an exhibit unless offered by the adverse party.
74
What can a Defendant do if they were not informed of the correct sentence?
He should be allowed to withdraw his plea.
[See *Smith v. State*]
75
Are admissions of a party admissible against a co-defendant merely because they happen to be joined as parties to the action?
No, if there are two or more parties, the admission of one party is admissible as against that party, but in the absence of authority, it is not admissible against the co-party
76
A court MAY or MUST take judicial notice of duly enacted ordinances of municipalities and counties located in Florida?
MAY, provided such ordinances and resolutions are available in printed copies or as certified copies.
77
Florida Statutes section 90.202 provides that
A court MAY take judicial notice of facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court
78
Florida Statutes section 90.203 provides that
A court SHALL take judicial notice of any matter in section 90.202 when a party requests it AND:
1. gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request; and
2. Furnishes the court with sufficient information to enable it to take judicial notice of the matter
79
Does requesting judicial notice during trial provide sufficient notice to enable the adverse party to prepare to meet the request?
Not likely.
80
Can a party be sanctioned for failure to appear at a deposition?
Yes, he could be subject to discovery sanctions.
81
Where should a defendant seeking to stay the enforcement of an injunction seek stay?
From the **trial court, NOT the appellate court**
82
Once the jury has rendered its verdict, may the judge praise and/or criticize the verdict?
NO!!! absolutely not.
83
In a merger between a business trust and a corporation, which business entity “survives”?
The corporate entity.
84
Evidence of precautionary measures made following an accident are NOT admissible
to prove negligence or culpable conduct. However, evidence of repairs or other precautionary measures made following an accident ARE admissible to establish the feasibility of precautionary measures where such feasibility is controverted.
85
Flroida's requirements for the admissibility of the opinions of lay witnesses are MORE or LESS restrictive than the Federal Rules?
MORE
86
When are lay opinions admissible in Florida?
When 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 AND the testimony will not mislead the trier of fact; AND the opinion does not require special knowledge or training.
87
Are factual findings resulting from legally authorized investigations admissible under Florida's code
NO!! this includes police investigations, OSHA, etc…
88
Where a party has filed some paper in the suit, are they entitled to receive notice that the other party has filed application for default?
Yes, he must receive notice
89
A defendant is entitled to how many peremptory challenges?
Only the maximum number for the most serious crime. He does NOT get the sum of the peremptories available for each crime.
90
Does a known creditor need to be provided with notice of the dissolution?
No, under RUPA, third parties will be deemed to have notice of dissolution 90 days after a statement of dissolution is filed with the secretary of state.
91
Does a known creditor need to be provided with notice of the dissolution?
No, under RUPA, third parties will be deemed to have notice of dissolution 90 days after a statement of dissolution is filed with the secretary of state.
92
When are specific instances of conduct between the victim and persons other than the defendant admissible in a sexual battery case?
Where the defendant first establishes to the court in an in camera proceeding that such evidence tends to establish a pattern of conduct or behavior on the part of the victim so similar to the conduct or behavior in the instant case that it is relevant to the issue of consent
93
May an arresting officer issue a notice to appear for the violation of a misdemeanor?
Yes. However, a notice to appear may NOT be issued by the arresting officer if:
1. the accused fails or refuses to identify himself or supply required information;
2. the accused refuses to sign the notice to appearl;
3. the officer has reason to believe that continued liberty of the accused constitutes unreasonable risk of bodily harm to the accused or others;
4. the accused has no ties with the jurisdiction or there is substantial risk that he will refuse to respond to the notice;
5. the officer suspects that the accused may be wanted for another crime in any jurisdiction; or
6. it appears that the accused has previously failed to appear in response to notice
