Evidence Flashcards
Relevant evidence is admissible if it is _________
Competent - that is, it does not violate any exclusionary rule.
What does it mean to be relevant?
Tends to prove or disprove a material fact.
PROBATIVE + MATERIAL
Steps to determining whether evidence is admissible
- Is it relevant
- Is there a proper foundation
- Is evidence in proper form ? (best evid rule/expert/lay)
- Do any of the exclusionary rules apply?
Is habit evidence admissible?
Fed’l v. Florida Evidence Code (“FEC”)
Under FRE, habit evidence is admissible.
Habit is a person’s regular response to a specific set of traits. Look for words like instinctively and automatically, always, or every time.
Under Fla law, habit evidence is only admissible to corroborate independent evidence that a person followed the habit on the occasion in question.
When can a judge exclude relevant evidence - 403 balancing test?
(Where is FRE different)
When its probative value is substantially outweighed by danger of unfair prejudice, confusion, misleading jury, or cumulative evidence. CCUM
FRE only - undue delay and waste of time.
Is evidence of organization’s routine practice relevant to show that a particular event occurred?
Yes, under FEC and FRE, uncorroborated evidence of an organization’s routine practice is admissible.
Construction of FEC
Replaces all conflicting statutes or common law.
Scope of FEC
Applies to any proceedings that the general common law of evidence applied to.
Applies to all criminal proceedings and civil actions.
When may a court predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence
When a SUBSTANTIAL RIGHT is affected AND
- if admitting evidence, a timely objection or motion to strike was made stating specific ground of objection if not obvious from context OR
- If excluding evidence, there was offer of proof or substance of the evidence was apparent from context of the questions asked.
Does a party need to renew objection or offer of proof to preserve a clam for error on appeal?
No, s/l/a court has made a definitive ruling on the record admitting or excluding evidence.
Who determines preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.
The court. Must use admissible evidence in Florida (not FRE)
When using parts of a writing, what may the adverse party require?
An adverse party may require party at that time to introduce any other part of the writing that in fairness ought to be considered contemporaneously
What MAY the court take judicial notice of?
(1) Special, local, and private acts and resolutions of Congress and the Florida Legislature.
(2) Decisional, constitutional, and public statutory law of every other state
(3) Contents of the Federal Register.
(4) Laws of foreign nations
(5) Official actions of the legislative, executive, and judicial departments of the United States and of any state.
(6) Court records from anywhere in the US
(7) Rules of court from anywhere in the US
(8) Certified copies of provisions of all municipal and county charters and charter amendments of this state,
(9) Florida Administrative Code
(10) Certified copies of duly enacted ordinances and resolutions of municipalities and counties located in Florida.
(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.
(12) 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.
(13) Official seals of governmental agencies and departments of the United States and of any state
It sounds like if a party makes a timely request and provides the court with sufficient info and enough time for adversary to respond, the court MUST take judicial notice. In FRE, it is not compulsory.
In determining whether to take judicial notice, what evidence may judge consider?
Any evidence without regard to any exclusionary rules except privilege.
Special circumstances when a court can take judicial notice of court records from other states
In a family matter, when there is imminent danger, and it is impractical to give notice, court can take judicial notice and defer opportunity to present evidence until later.
Must a denial of a request for judicial notice be stated on the record?
Yes, at the earliest practicable time.
What are two types of rebuttable presumptions
- One that effects the burden of producing evidence and requiring jury to assume the existence of a fact, unless credible evidence otherwise is introduced - presumption vanishes when evidence is introduced to contrary. “Bursting bubble” E.g., presumption of negligence in rear end
- One that effects the burden of proof - imposed upon the party against whom the presumption operates. Does not vanish if credible evidence otherwise is introduced. Instead, jury decides whether party met its burden of persuasion that the presumption does not apply.
How do you know if a presumption is a Bursting Bubble Presumption?
Default rule is that it is bursting bubble presumption unless the presumption is one that implements public policy.
Examples of public policy presumptions
- protection of police and firefighters;
- the validity of marriage;
- sanity in civil cases;
- parentage and paternity;
- exercise of undue influence;
- acts of public officials;
- correctness of judgments;
- intention of parties to a written agreement;
- against suicide;
- validity of a written medical consent; and
- competence to consent to medical treatment.
In this way, we can see that public policy presumptions are those that implicate human life, safety, and dignity.
Is evidence of paternity admissible in criminal prosecution
Yes - to show sexual battery of mom under 18.
FEC rule regarding statements expressing sympathy
The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to their family shall be INADMISSIBLE as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible pursuant to this section.
Can character be proved by opinion testimony in Florida?
No
Is propensity character evidence admissible in a civil case? Fed’l vs. FEC
No, unless
(1) character is an essential element of a claim or defense (e.g. defamation-harm to reputation),
(2) case involves a claim for relief based on defendant’s sexual assault or molestation (Fed’l -civil or criminal, under FEC - only criminal)
Is NON-propensity character evidence admissible in a civil case? Fed’l vs. FEC
Generally, yes. Rule 404 is not the issue, it’s a regular analysis - relevance, balancing, etc. MIMIC ok
Under FEC when is the only time specific instances of misconduct can be used?
- When character of a person is an essential element of a charge, claim, or defense
- NOT allowed to ask about specific instances of misconduct to impeach a witness
Is propensity character evidence admissible in a criminal case against accused? Fed’l vs. FEC
Only if D opens door
Fed’l -by reputation or opinion
FEC - by reputation only
Prosecution can rebut
Fed’l -by reputation or opinion, cross-x of specific instances (but can’t use evidence to prove against W)
FEC - by reputation only
ALSO
if case involves a claim for relief based on defendant’s sexual assault or molestation (Fed’l civil or criminal, under FEC - only criminal)
What is the Florida Rape Shield Statute?
-Applies to sexual battery and human trafficking cases
-Prohibits reputation evidence about victim
-Limits admissibility of specific evidence of prior consensual activity between victim and others except if it (i) tends to prove that D was not source of semen or pregnancy or (ii) there is a similar pattern of conduct that tends to establish consent
(Federal the same)
Is propensity character evidence admissible in a criminal case against VICTIM? Fed’l vs. FEC
Only if D opens door (except for rape-not allowed - Florida rape shield statute )
Fed’l -by reputation or opinion or self defense (homicide) case
FEC - by reputation only
Prosecution can rebut
Fed’l -by reputation or opinion
FEC - by reputation only
Under Fed’l only - if D opens door to victim’s character, he puts his own character (on the same trait) in issue.
Is NON-propensity character evidence admissible in a criminal case against accused? Fed’l vs. FEC
-applies to civil too
MIMIC - same Fed'l and FEC Motive Intent Mistake (absence of) Identity Common plan or scheme ** Not limited to this - these are the most common. Under FEC, similar acts must be "strikingly similar" and share some unique characteristic. E.g., wet bandits- filling house with water after burglary.
Requirements for Admissibility of MIMIC evidence
(i) there must be sufficient evidence of prior conduct (can’t guess) and (ii) 403 balancing -probative value must not be substantially outweighed by danger of unfair prejudice
Notice that Prosecution has to give of use of MIMIC evidence in criminal case
The prosecution must give 10 days notice of intent to use other acts as non-propensity character evidence.
Does taking the stand put D’s character in issue?
No. It only puts his credibility in issue - so prosecution limited to impeachment evidence.
Can you use evidence of subsequent remedial measures?
Not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event.
Admissible to prove ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.
Can you use evidence of Offer to plead guilty; nolo contendere; withdrawn pleas of guilty
No. Inadmissible, as are statements accompanying plea.
Can you use evidence of compromise or offers to compromise?
FEC - Inadmissible to prove liability or absence of liability or amount of claim
FRE- inadmissible to prove disputed claim, amount, or for impeachment
No person in a legal proceeding has the privilege to:
Except as otherwise provided
(1) Refuse to be a witness.
(2) Refuse to disclose any matter.
(3) Refuse to produce any object or writing.
(4) Prevent another from being a witness, from disclosing any matter, or from producing any object or writing.
A party seeking to overcome journalist’s privilege must make a clear and specific showing that
- information is relevant and material
- cannot be obtained from alternate sources; and
- compelling interest exists for requiring disclosure.
Does a professional journalist waive the privilege by publishing or broadcasting the information?
No.
Circumstances when there is no lawyer-client privilege
- services of lawyer were sought to enable a crime or fraud.
- Breach of duty in lawyer client relationship
- Competence of client in attesting to a document
- matter of common interest between two or more clients
- Certain communications between attorney and public entity are not privileged after litigation
- Statements between attorney and public official at public meeting
- When communication is relevant to an issue between parties who claim through the same deceased client.
Fiduciary lawyer client privilege
Communication between lawyer and a client acting as a fiduciary is privileged to same extent as if client were not acting as a fiduciary
Psychotherapist-patient privilege
A patient has a privilege to refuse to disclose confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.
Who can claim the psychotherapist-patient privilege
(a) The patient or the patient’s attorney on the patient’s behalf.
(b) A guardian or conservator of the patient.
(c) The personal representative of a deceased patient.
(d) The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.
When there is NO psychotherapist-patient privilege
- proceedings to compel hospitalization for mental illness
- communications made during court ordered examination
- Where mental or emotional condition is element of claim or defense.
Sexual assault counselor-victim privilege
A victim has a privilege to refuse to disclose a confidential communication made to a sexual assault counselor or trained volunteer or any record made in the course of advising, counseling, or assisting the victim. Such confidential communication or record may be disclosed only with the prior written consent of the victim. INCLUDES ADVICE GIVEN.
Who can claim sexual assault counselor-victim privilege
(a) The victim or the victim’s attorney on his or her behalf.
(b) A guardian or conservator of the victim.
(c) The personal representative of a deceased victim.
(d) The sexual assault counselor or trained volunteer, but only on behalf of the victim. The authority of a sexual assault counselor or trained volunteer to claim the privilege is presumed in the absence of evidence to the contrary.
Domestic violence advocate-victim privilege
A victim has a privilege to refuse to disclose a confidential communication made by the victim to a domestic violence advocate or any record made in the course of advising, counseling, or assisting the victim. The privilege applies to confidential communications made between the victim and the domestic violence advocate and to records of those communications only if the advocate is registered at the time the communication is made. INCLUDES ADVICE GIVEN.
Husband-wife privilege
- protects disclosure of information communicated during the marriage. May be claimed by either spouse or guardian of spouse
- Florida does not recognize the doctrine of spousal immunity (where one spouse cannot be compelled to testify against other)
When does the husband-wife privilege not apply?
- proceeding between spouses
- one spouse charged with a crime against the other or a child
- during a criminal proceeding when one spouse offers the communication into evidence.
Clergy Privilege
Communication is confidential if made privately for the purpose of seeking spiritual counsel from the member of the clergy in the usual course of his discipline and not intended for further disclosure.
Same people may claim privilege as other privileges.
When is there NO Accountant-client privilege
- services of accountant were sought to enable a crime or fraud.
- Breach of duty in accountant client relationship
- joint representation
