Evidence Distinctions Flashcards
FL Distinctions (97 cards)
1
Q
When do the Federal Rules not Apply (Broad Categories)
A
The Federal Rules do not apply to:
i) PQ -Preliminary Ques. of fact governing admissibility
ii) GJ- Grand jury proceedings; and
iii) CRIM -Criminal proceedings for the following purposes:
a) WAR- The issuance of a search/arrest warrant or a criminal summons;
b) EXAM- A preliminary examination in a criminal case;
c) OUT- Extradition or rendition;
d) BAIL -Consideration of bail or other release;
e) SENT- Sentencing; and
f) PROB - Granting or revoking probation or supervised release.
2
Q
Who decides Preliminary Questions?
A
The Trial Judge
The court is not bound by the Evidence Rules in deciding PQs except with respect to privileges, and it may consider otherwise inadmissible evidence. Fed. R. Evid. 104(a).
3
Q
What is included in Preliminary Questions?
CAPE
A
Preliminary Questions usually deal with:
- Competency of evidence,
- Admissibility of evidence,
- If Privilege exists, and
- Witness qualifications (Expt)
4
Q
Who bears the burden for PQ’s?
A
The party OFFERING the evidence ordinarily BEARS THE BURDEN to persuade the trial judge by a preponderance of the evidence.
5
Q
Do Jurors hear PQ’s?
A
NO, Hearings on PQ’s must be conducted OUTSIDE THE PRESENCE OF THE JURY when the hearing involves the admissibility of confessions, when a defendant in a criminal case is a witness and so requests, or when justice requires it.
6
Q
What is the FL Role of the Judge? (90.106)
A
IN FL -->
A judge MAY NOT summarize evidence or otherwise comment to the jury about the 1. WEIGHT of the Evidence
2. CREDIBILITY of witnesses, or
3. GUILT of the accused.
Fla. Stat. § 90.106.
(The Florida rule contrasts with the federal practice of judges having discretion to comment on evidence without becoming partisan.)
**Judges can only THANK JURORS –> If they do more –> MISTRIAL
7
Q
Are FL Judges bound by the rules in deciding PQ’s?
A
The Florida rules do not provide that the court, in deciding a preliminary question, is not bound by the Rules in deciding these questions, except with respect to privileges. See Fla. Stat. § 90.105(1)
8
Q
Harmless Error Rule - Challenge to Evidence Ruling
A
When an appellate court determines that evidence was improperly admitted in a criminal case, Florida applies the harmless error rule.
Unless the state can demonstrate beyond a reasonable doubt that there is no reasonable possibility that the error affected the jury verdict, the judgment must be reversed. State v. Lee, 531 So. 2d 133 (Fla. 1988).
9
Q
In Florida, the rules cover presumptions in civil actions only.
A
In Florida, the rules cover presumptions in civil actions only. (Criminal cases are governed by constitutional issues.) Under Florida Law, a presumption is rebuttable unless it is conclusive under the law from which it arises. Fla. Stat. § 90.301. An example of a conclusive presumption is a statute that sets forth the age below which a person is deemed to be able to consent to sexual intercourse.
In civil cases, every rebuttable presumption is either:
i) A presumption that affects the burden of producing evidence and requires the trier of fact to assume the existence of a presumed fact unless contrary credible evidence is introduced (at which point the presumption’s “bubble bursts”); or
ii) A more powerful presumption that affects the burden of proof—it places the burden of proof on the party it operates against to show the nonexistence of the presumed fact (meaning that the presumption doesn’t go away, i.e., the bubble doesn’t burst, merely because contrary evidence is produced).
Fla. Stat. §§ 90.302–90.304. The second type of presumptions—those that affect the burden of proof—usually carry out some strong social policy and are meant to achieve more than mere facilitation of proof at trial. Examples include the presumption that: (i) a child born to married parents is a legitimate child, (ii) people are sane, (iii) a marriage is valid, or (iv) acts of public officials are carried out according to lawful duty.
The federal rules cover only the first type, so-called “bursting bubble” presumptions.
10
Q
Florida Point of Law: Habit Evidence
A
Florida Point of Law: Habit Evidence
The Florida rule does not mention a person’s habit, but only “the routine practice of an organization,” which, like the federal rule, may be admitted without corroboration and without an eyewitness’s presence. See Fla. Stat. § 90.406. Florida courts, however, have admitted evidence of a person’s habit under the common-law exception. Evidence of a person’s habit is admissible to corroborate other evidence that shows the habit occurred at a relevant time, but, unlike the federal rule, it is not admissible as direct evidence without corroboration. Peter Nicolas, Florida and Federal Evidence Rules With Commentary (2009–10) 77 (citing sources).
11
Q
Florida Point of Law: Oaths
A
Florida Point of Law: Oaths
The Florida Code requires that the oath be substantially in the following form: “Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth?” Fla. Stat. § 90.605(1). The court may allow a child to testify without taking an oath if the court determines that the child understands the duty to tell the truth or the duty not to lie. Fla. Stat. § 90.605(2).
12
Q
Florida Point of Law: Child as Witness
A
Florida Point of Law: Child as Witness
The court may set appropriate conditions on the taking of a child’s testimony if the child is under the age of 18. These conditions may include the use of a registered service or therapy animal in proceedings involving sexual offenses. Fla. Stat. § 92.55. In any criminal proceeding, the court must appoint a guardian ad litem or other advocate to represent a minor in any criminal proceeding if the minor is a victim of or witness to child abuse or neglect, a victim of a sexual offense, or a witness to a sexual offense committed against another minor. Fla. Stat. § 914.17.
13
Q
Florida Point of Law: Criminal Defendant
A
Florida Point of Law: Criminal Defendant
Florida does not give extra protection to criminal defendants who take the stand in their own defense—the regular balancing test applies.
14
Q
Florida Point of Law: Manner of Proof
A
Florida Point of Law: Manner of Proof
In Florida, the proper procedural approach to impeach the credibility of a witness is simply to ask the witness whether the witness has ever been convicted of a felony or a crime involving dishonesty, rather than by specifically naming the crime. If the witness denies that he has been convicted of such a crime, the adverse party may enter the record of any such conviction into evidence. If the witness does not deny that he has been convicted of such a crime, the inquiry must end and may not be pursued to the point of naming the crime for which he was convicted. However, as a form of rehabilitation, the witness may of his own volition state the nature of the crime and offer any relevant explanation to eliminate adverse implications. Johnson v. State, 380 So. 2d 1024 (Fla. 1979).
Additionally, questioning a witness about the nature and underlying facts of the witness’s prior conviction for impeachment purposes generally is not allowed. Smith v. State, 7 So. 3d 473 (Fla. 2009). However, it is appropriate in the penalty phase of a capital trial to introduce testimony concerning the details of any prior felony conviction involving the use or threat of violence. See Tompkins v. State, 502 So.2d 415 (Fla. 1986). Specific underlying facts of a conviction may also be admissible as substantive evidence under the Williams rule (see II.C. Bad Acts, supra).
15
Q
Florida Point of Law: Lay Witness
A
Florida Point of Law: Lay Witness
A lay witness may testify as to his inference or opinion if he cannot readily, accurately, and adequately communicate his perception without testifying in terms of inferences or opinions, and if doing so will not mislead the trier of fact or prejudice the objecting party. Such inferences and opinions do not require special knowledge, skill, experience, or training. Fla. Stat. § 90.701. Although this wording differs from the federal rule, the Florida rule is applied in practice in the same manner as the federal rule. Glen Weissenberger & A.J. Stephani, Florida Evidence: 2010 Courtroom Manual 407.
16
Q
Florida Point of Law: Disclosure Under Compulsion
A
Florida Point of Law: Disclosure Under Compulsion
A statement or disclosure of privileged matter is inadmissible against the privilege holder if the statement or disclosure was erroneously compelled by the court or made without opportunity to claim the privilege. Fla. Stat. § 90.508. There is no comparable rule in the Federal Rules of Evidence, but this is the practice in federal courts.
17
Q
Florida Point of Law: Child Support Enforcement Program
A
Florida Point of Law: Child Support Enforcement Program
Communications made to an attorney representing the Department of Revenue under the child support enforcement program by a person seeking services from the Department are confidential and privileged, and may not be disclosed to anyone other than the agency. In essence, the communications are protected as if an attorney-client relationship existed. Fla. Stat. § 90.502(5).
18
Q
Florida Point of Law: Fiduciary Lawyer-Client Privilege
A
Florida Point of Law: Fiduciary Lawyer-Client Privilege
A communication between a lawyer and a client acting as a fiduciary is privileged. For this privilege, a client acts a fiduciary when serving as a personal representative, a trustee, an administrator ad litem, or a curator under the Probate Code; as a guardian or a guardian ad litem in domestic relations cases; as conservator under the Transfers to Minors Act; or as an attorney in fact pursuant to a power of attorney or appointment. Fla. Stat. § 90.5021.
19
Q
Florida Point of Law: Physician-Patient Privilege
A
Florida Point of Law: Physician-Patient Privilege
Florida follows the common law and has not codified a specific evidentiary physician-patient privilege. Instead, Florida prohibits a physician from discussing a patient’s medical issues without the consent of the patient. However, this is not an evidentiary privilege, and if a court gives notice to the patient and compels a physician to provide medical records, the physician must comply with the court order. Fla. Stat. § 456.057.
20
Q
Florida Point of Law: Psychotherapist-Patient Privilege
A
Florida Point of Law: Psychotherapist-Patient Privilege
Florida does recognize the psychotherapist-patient privilege for confidential communications related to the diagnosis of a mental or emotional condition. Fla. Stat. § 90-503.
21
Q
Florida Point of Law: Communications to Clergy
A
Florida Point of Law: Communications to Clergy
The Florida privilege covers communications “made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.” Fla. Stat. § 90.505.
22
Q
Florida Point of Law: Accountant-Client Privilege
A
Florida Point of Law: Accountant-Client Privilege
Florida recognizes this privilege. Fla. Stat. § 90.5055. It is analogous to the attorney-client privilege.
23
Q
Florida Point of Law: Journalist’s Privilege
A
Florida Point of Law: Journalist’s Privilege
Florida extends protection to professional journalists. The privilege does not extend to book authors or others who are not working as a salaried employee or independent contractor for a newspaper, news journal, news agency, press association, wire service, radio or television station, or news magazine. The professional journalist has a qualified privilege, not an absolute privilege, and need not disclose information, including the identity of any source, obtained while actively gathering news. This privilege does not apply to physical evidence, eyewitness observations, or visual or audio recordings of crimes.
To overcome the privilege a party must make a clear and specific showing that:
i) The information is relevant and material to unresolved issues raised in the proceeding;
ii) The information cannot be obtained from alternate sources; and
iii) A compelling interest exists for requiring disclosure.
If a court orders disclosure, only the information shown to be relevant and material will be disclosed. The privilege is not waived by publishing or broadcasting the privileged information. Fla. Stat. § 90.5015.
24
Q
Florida Point of Law: Third Party Benefits
A
Florida Point of Law: Third Party Benefits
Although Fla. Stat. 90.403 explicitly states that it does not make evidence of the existence of third-party benefits inadmissible, Florida case law has upheld the exclusion of liability insurance to prove liability. S. Motor Co. of Dade County v. Accountable Constr. Co., 707 So. 2d 909, 911 (Fla. Dist. Ct. App. 1998) (“It has long been the law of this state that unless the existence or amount of insurance coverage has direct relevancy to a matter at issue, it is not a proper matter for the jury’s consideration of the issues of liability and damages.”). See also Gormley v. GTE Products Corp., 587 So. 2d 455 (Fla. 1991) (payments from insurance company were inadmissible).
25
Florida Point of Law: Defendant’s Conduct in Cases Involving Sexual Offenses
Florida Point of Law: Defendant’s Conduct in Cases Involving Sexual Offenses
In Florida, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation may be used in the prosecution of the defendant for child molestation and evidence of the defendant’s commission of other crimes, wrongs, or acts involving a sexual offense may be used in a criminal prosecution of the defendant for a sexual offense. Child molestation means a sexual offense was committed against a victim who was 16 years of age or younger at the time of the offense. However, unlike the FRE, Florida does not allow this evidence to be used for propensity purposes. Instead, it must be admitted under the Williams rule governing evidence of similar prior acts. Fla. Stat. §90.404(2)(b), (c). In addition, unlike the federal rule, the state must give 10 days’ notice to the defendant that it will use this evidence. A court can give a limiting instruction upon request. Also, unlike the federal rule, there is no provision for the use of other act evidence of child molestation or a sexual offense in a civil case involving either. Fla. Stat. §90.404(2).
If a person under the age of 18 gives birth to a child, and the paternity of that child is established pursuant to Florida’s Domestic Relations Statutes, paternity is admissible in a criminal prosecution for some sexual offenses, including sexual battery and unlawful sexual activity with a minor. Fla. Stat. § 90.4025.
26
Florida Point of Law: Agents of Government
Florida Point of Law: Agents of Government
In Florida, a government agent’s statements can be offered against the government under this hearsay exception (Fla. Stat. §90.803(18)(d)). See Garland v. State, 834 So. 2d 265 (Fla. Dist. Ct. App. 2002) (in criminal case, gunshot residue report by state technician was available as opposing party’s statement); Lee v. Dep’t of Health & Rehab. Servs., 698 So. 2d 1194 (Fla. 1997) (in civil case, statements made by HRS employee who investigated incident, and other employees’ statements to investigator, admissible as opposing party’s statement).
27
Florida Point of Law: Co-Conspirators
Florida Point of Law: Co-Conspirators
Under FRE 801(d)(2), the court must consider the contents of a co-conspirator's statement in determining the existence of the conspiracy, and FRE 104(a) requires this preliminary question to be established by a preponderance of the evidence for the statement to be admissible under FRE 801(d)(2)(E). Under the federal rule, the contents of the declarant's statement do not alone suffice to establish a conspiracy. The court must instead consider the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to whether there was a conspiracy. Bourjaily v. United States, 483 U.S. 171 (1987),
Florida has declined to adopt this approach. Romani v. State, 542 So. 2d 984 (Fla. 1989). Although the standard for proving the conspiracy is still a preponderance of the evidence, unlike the federal rule, the conspiracy must be established by evidence independent of the statement in question before the statement is admissible under this exception. Id.; Brown v. State, 648 So. 2d 268, 270-71 (Fla. Dist. Ct. App. 1995) (“[T]he threshold condition of admissibility of a co-conspirator's statement is whether evidence exists independent of the statement that the defendant and the declarant participated together in a conspiracy.”); Fla. Stat. §90.803(18)(e).
28
Florida Point of Law: Former Testimony
Florida Point of Law: Former Testimony
Florida applies a similar rule to former testimony when the declarant is unavailable. Fla. Stat. § 90.804(2)(a). However, Florida has an additional rule that applies regardless of whether the declarant was unavailable.
Under this additional rule, former testimony can be offered against a party in any proceeding if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination, and in a subsequent civil proceeding if the testimony was offered against a party’s predecessor-in-interest or another party with a similar interest at another hearing or deposition of the same or a different proceeding, and that party had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Fla. Stat. § 90.803(22). This rule has been held unconstitutional by the Florida Supreme Court as violation of a defendant’s Sixth Amendment Right to Confront a Witness when the declarant is not shown to be unavailable in a criminal proceeding (State v. Abreu, 837 So. 2d 400, 400 (Fla. 2003)) and by a Florida District Court of Appeal as a violation of due process when the declarant is not shown to be available in a civil proceeding. E.g. Grabau v. Dep't of Health, 816 So. 2d 701, 709 (Fla. Dist. Ct. App. 2002); Jones v. R.J. Reynolds Tobacco Co., 830 So. 2d 854 (Fla. Dist. Ct. App. 2002).
29
Florida Point of Law: Previous Conviction
Florida Point of Law: Previous Conviction
The Florida Evidence Code does not have a hearsay exception that corresponds to the federal hearsay exception for a judgment of a previous conviction. However, as to the use in a civil action of a prior conviction, a judgment of conviction generally cannot be given in evidence in a civil action to establish the truth of the facts on which it is rendered, but a judgment on a plea of guilty generally may be introduced in a civil action to establish an admission against interest. Boshnack v. World Wide Rent-A-Car, Inc., 195 So. 2d 216 (Fla. 1967). With regard to minor traffic offenses, a guilty plea cannot be used in a subsequent civil action. Fla. Stat. 316.650(9).
30
Florida Distinction: Judicial Notice
Florida Distinction: Judicial Notice
A Florida court must take judicial notice of:
i) Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and U.S. Congress;
ii) Florida court rules that have statewide application, its own rules, and U.S. court rules adopted by the U.S. Supreme Court; and
iii) U.S. Supreme Court and Courts of Appeal rules.
Fla. Stat. § 90.201.
A Florida court may, at its discretion, take judicial notice of:
i) Special, local, and private acts of the Florida Legislature and U.S. Congress;
ii) All other states’ and U.S. territories’ decisional, constitutional, and public statutory law;
iii) Contents of the Federal Register;
iv) Foreign nations’ and organizations of nations’ laws;
v) Federal and state official legislative, executive, and judicial actions;
vi) Federal and state court rules and records;
vii) Florida municipal and county charter provisions, amendments, ordinances, and resolutions;
viii) Promulgated governmental rules that are published in the Florida Administrative Code or other bound written copies;
ix) Generally known facts within the territorial jurisdiction of the court;
x) Generally known facts or facts capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned; and
xi) Governmental agencies and departments’ official seals.
Fla. Stat. § 90.202.
The court must take judicial notice of these discretionary matters when a party so requests, provided the party gives adverse parties timely written notice of the request and furnishes the court with sufficient information to enable it to take judicial notice of the matter. Fla. Stat. § 90.203.
The court must afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed. In determining the propriety of taking judicial notice, the court may use any source of pertinent and reliable information, whether or not furnished by a party, without regard to any exclusionary rule except a valid claim of privilege and except for the Rule 403 exclusions. Fla. Stat. § 90.204(1),(2). When the court denies a request for judicial notice, the court must inform the parties at the earliest practicable time and must indicate for the record the denial of the request. Fla. Stat. § 90.205.
Jury instructions. The Florida rule regarding the court’s instruction to a jury regarding a judicially noticed matter permits, but does not require the court to instruct the jury to accept as a fact a matter judicially notice without regard to whether the case is criminal or civil,. However, Florida courts, interpreting this rule in the context of criminal cases, have held that a court cannot judicially notice a fact that constituted an element of the crime and required the court to instruct the jury with regard to a fact that gives rise to an inference of the existence of an element of a crime that the jury is free to disregard the inference. Fla. Stat. § 90.206; sCordova v. State, 675 So. 2d 632 (Fla. Dist. Ct. App. 1996) (judicially noticed fact, permissible inference only); Hernandez v. State, 713 So.2d 1120 (Fla. Dist. Ct. App. 1998 (judicial notice of element of crime not permitted).
Subsequent proceedings. The court, in subsequent proceedings, is not required to give effect to an earlier court’s refusal or failure to take judicial notice of a matter. For example, an appellate court can take judicial notice of a matter that the trial court did not, if the appellate court follows the prescribed procedures. Fla. Stat. § 90.207.
31
Florida Distinction: Exclusion of Witnesses
Florida Distinction: Exclusion of Witnesses
With respect to item iv), above, in Florida a witness in a criminal case may not be excluded if the witness is the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion of a party or the court, the court determines that the person's presence would be prejudicial. Fla. Stat. § 90.616; J.R. v. State, 923 So. 2d 1269 (Fla. Dist. Ct. App. 2006). (Note: The Florida constitution gives victims of crime or their lawful representatives, including the next-of-kin of homicide victims, the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused. Fla. Const. Art. I, § 16(b).)
32
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Contrary to the federal rule, in Florida, proof of character cannot be in the form of opinion testimony. Only evidence in the form of reputation testimony is permitted. Fla. Stat. § 90.404.
33
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Contrary to the federal rule, the Florida rule does not allow the prosecution to rebut with the defendant’s character trait when the defendant offers a victim’s character trait. For example, if, in a homicide case, the defendant offers evidence of the victim’s character trait of violence to support a claim of self-defense, the prosecution may not rebut with evidence of the defendant’s character trait for violence. It may only rebut with evidence of victim’s character trait of peacefulness. See Fla. Stat. § 90.404.
34
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
Florida Distinction: Defendant Offers a Character Trait of Victim as Part of a Defense
As noted above, in Florida the prosecution may not rebut with evidence of the defendant’s character trait for violence. It may only rebut with evidence of victim’s character trait of peacefulness.
In a homicide case, the prosecution may also offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor. Fed. R. Evid. 404(a)(2)(C).
35
Florida Distinction: Methods of Proving Character
Florida Distinction: Methods of Proving Character
As noted above, character generally cannot be proved by opinion testimony in Florida; it can be proven only by reputation. As with the federal rule, specific acts may also be used when “character or a trait of character of a person is an essential element of a charge, claim, or defense.” Fla. Stat. § 90.405.
36
Florida Distinction: Other Acts Under The Williams Rule
Florida Distinction: Other Acts Under The Williams Rule
Williams Rule: In Florida, similar fact evidence of other crimes, wrongs, or acts is admissible under the Williams rule when relevant to prove a material fact in issue like identity, preparation, motive, intent, opportunity, plan, absence of mistake or accident, or knowledge (e.g., MIMIC evidence). Fla. Stat. § 90.404(2)(a); Williams v. State, 110 So. 2d 654 (Fla. 1959). A material fact is not at issue simply because it relates to an element of the charged crimes and the defendant has pled not guilty. Jackson v. State, 140 So. 3d 1067 (Fla. 1st Dist. Ct. App. 2014).
“Striking similarity” standard when other act used to establish identity. If the purpose of introducing such evidence is to prove identity, a general similarity will not render the similar act admissible. Instead, there must be “identifiable points of similarity” that establish, when also considering dissimilarities, a “sufficiently unique pattern of criminal activity.” Durousseau v. State, 55 So. 3d 543, 552 (Fla. 2010); Jones v. State, 212 So. 3d 321 (Fla. 2017). Note: By contrast, if the purpose of introducing such evidence is to prove motive, there is, of course, no requirement that the nature or facts surrounding the other crimes, wrongs, or acts be similar to the charged offense. State v. Andrews, 875 So. 2d 686 (Fla. 4th Dist. Ct. App. 2004).
Criminal sexual battery and child molestation. The Williams rule also applies in criminal cases involving sexual battery and child molestation (but not in other sex offense cases) to allow the admission of evidence of the defendant’s commission of other similar crimes, wrongs, or acts of sexual battery or child molestation. This evidence may be considered for its bearing on any matter to which it is relevant, but it is inadmissible when relevant solely to prove bad character or propensity. Fla. Stat. § 90.404(2)(b), (c). This is unlike FRE 413–415, which permit such acts to be admitted in various types of sex offense cases, criminal and civil, and which permit the evidence to be admitted to show propensity. If such evidence is admitted in Florida, the court must charge the jury on the limited purpose for which the evidence is to be considered.
Advance notice. At least 10 days before trial, the state must give a defendant notice of its intent to use evidence of other crimes, wrongs, or acts. This notice must describe the acts the state seeks to admit as evidence with particularity. The court will then hold a hearing to determine the admissibility of the acts. Unlike the federal rule, no notice is required for use of such evidence for impeachment or rebuttal of defendant’s character witnesses.
Burden of persuasion. Florida requires a judicial finding that the other acts are supported by clear and convincing evidence to be admissible. Henrion v. State, 895 So. 2d 1213 (Fla. 2nd Dist. Ct. App. 2005). For a party to meet the clear and convincing standard, the evidence must “be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th Dist. Ct. App. 1983). (Note: The federal standard is lower. See Huddleston v. United States, 485 U.S. 681 (1988) (other acts require a judicial finding under FRE 104(b) that the jury could reasonably find the conditional fact by a preponderance of the evidence).)
Rule 403 exclusion. As under the federal rules, even if the court finds that the evidence is otherwise admissible, the act may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice (see II.A.2. Exclusion of Relevant Evidence, supra).
Reverse Williams Rule: Civil as well as criminal defendants may offer evidence of other acts of a third party to at least suggest that the third party, rather than the defendant, committed the crime or tort. Often, this is accomplished by showing that the modus operandi of the third party in committing the other act is strikingly similar to the crime with which the defendant has been charged. Under the Federal Rules, this approach is known as a “reverse 404(b) defense”; Florida refers to it as the “reverse Williams rule.”
In general, the requirements for the admissibility of this evidence introduced by a defendant are the same as those for the evidence introduced by the state, with the exception of the advance notice requirement. McDuffie v. State, 970 So. 2d 312, 323–24 & n.2 (Fla. 2007) (requiring “close similarity of facts, a unique or ‘fingerprint’ type of information” for the reverse Williams rule evidence to be admissible); see also Rivera v. State, 561 So. 2d 536, 539 (Fla. 1990) (mentioning applicability of “reverse Williams” to civil defendants).
37
Florida Distinction: Disqualification of Witness
Florida Distinction: Disqualification of Witness
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 directly or through interpretation by one who can understand him; or
ii) Incapable of understanding the duty to tell the truth.
Fla. Stat. § 90.603.
Although the Federal Rules do not make a similar statement, “the substance of the rule may be inferred from Federal Rules of Evidence 602 and 603, and is inherent in the power of the court under Federal Rule of Evidence 611(a).” Glen Weissenberger & A.J. Stephani, Florida Evidence: 2010 Courtroom Manual 314.
38
Florida Distinction: No Dead Man Statute
Florida Distinction: No Dead Man Statute
Florida’s “Dead Man Statute” has been repealed. When testimony formerly excluded by the statute is admitted, an exception to Florida’s hearsay rule permits the introduction of relevant communications on the same subject by the deceased or unavailable ill declarant. Fla. Stat. § 90.804(2)(e).
39
Florida Distinction: Witness’s Character for Truthfulness
Florida Distinction: Witness’s Character for Truthfulness
In Florida, a witness’s character for truthfulness may be attacked through use of reputation evidence only; opinion evidence is not permitted. Fla. Stat. § 90.609; see Fernandez v. State, 730 So. 2d 277, 282–83 (Fla. 1999). In addition, Florida has not adopted Fed. 608(b). Consequently, on cross-examination, a witness may not be asked about specific instances of conduct, even though it is probative of the truthfulness or untruthfulness of the witness or another witness about whose character the witness being cross-examined has testified.
40
Florida Distinction: No 10-Year Time Limit - general
Florida Distinction: No 10-Year Time Limit
Florida does not restrict the use of convictions for crimes involving dishonesty or false statement to a specific 10-year time limit. See Fla. Stat. §90.610.
41
Florida Distinction: No 10-Year Time Limit - crime of dishonesty
Florida Distinction: No 10-Year Time Limit
As with crimes involving dishonesty or false statement, Florida does not restrict the use of convictions for felonies or crimes involving dishonesty or false statement to a specific 10-year time limit. See Fla. Stat. §90.610.
42
Florida Distinction: Other Witnesses
Florida Distinction: Other Witnesses
Florida does not treat other witnesses in a criminal trial differently from a defendant-witness. In a civil trial, a conviction of any witness is inadmissible of it is so remote in time as to have no bearing on the present character of the witness.
43
Florida Distinction: No 10-Year Time Limit Prior Conviction
Florida Distinction: No 10-Year Time Limit
Florida rules do not impose special restrictions on the use of a witness’s prior conviction to impeach the witness based on a specific time period, unlike the federal rules, which impose such restrictions if the crime exceeds the 10-year limit. Instead, in Florida, any otherwise admissible conviction is inadmissible in a civil trial, if it is so remote in time as to have no bearing on the present character of the witness. Fla. Stat. §90.610. In a criminal trial, the court may exclude such evidence if it fails Florida’s version of Rule 403.
44
Florida Distinction: Effect of Pardon
Florida Distinction: Effect of Pardon
The granting of a pardon does not render evidence of the conviction inadmissible. Fla. Stat. § 90.610(2).
45
Florida Distinction: Juvenile Adjudications
Florida Distinction: Juvenile Adjudications
Evidence of juvenile adjudications is inadmissible to impeach a witness’s character for truthfulness in Florida. Fla. Stat. § 90.610(1)(b).
46
Florida Distinction: Prior Statements of Witnesses
Florida Distinction: Prior Statements of Witnesses
Written statements: When a witness is examined concerning the witness’s prior written statement or concerning an oral statement that has been reduced to writing, the court, on motion of the adverse party, must order the statement to be shown to the witness or its contents disclosed to the witness. Fla. Stat. § 90.614(1).
Opportunity to explain or deny: Extrinsic evidence of a non-party witness’s prior inconsistent statement is inadmissible unless the witness first has an opportunity to explain or deny the prior statement and the opposing party has an opportunity to interrogate the witness on it, or if the interests of justice otherwise require its admission. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible. Fla. Stat. § 90.614(2).
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Florida Distinction: Rehabilitation of Witness
Florida Distinction: Rehabilitation of Witness
In Florida, a rehabilitation witness who is testifying as to the witness’s character for truthfulness or untruthfulness is limited the testimony as to the impeached witness’s reputation for truthfulness; opinion testimony is not permitted. Fla. Stat. § 90.405(1). As with the federal rule, the rehabilitation witness cannot testify as to specific acts demonstrating the impeached witness’s truthfulness. (Note, however, the rehabilitation witness can be cross-examined as to whether she has heard of specific acts of untruthfulness that would contradict her testimony about the impeached witness’s reputation for truthfulness. See Gunsby v. State, 574 So. 2d 1085, 1089 (Fla. 1991).)
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Florida Distinction: Expert Witness
Florida Distinction: Expert Witness
There is currently a controversy in Florida regarding the appropriate standard for assessing the qualifications of an expert witness. Effective July 1, 2013, Florida statutorily adopted the Daubert standard, which is the standard that the federal rules follows and is reflected in the discussion above. Fla. Stat. 90.702. However, in February 2017, the Florida Supreme Court, exercising its constitutional authority over Florida judicial procedural rules (Fla. Const. art. V, § 2(a)), refused to adopt the Daubert standard for purposes of the Florida procedural rules, and suggested that it considers theFryestandard as the applicable procedural standard. In re: Amends. to Fla. Evid. Code, ___ So.3d ___ (Fla. Sup. Ct. Opinion No. 16-181, Feb. 16, 2017). Under the Frye standard, which applies only to expert testimony based on new or novel scientific evidence, the principle or discovery “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923); Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993); Bundy v. State, 471 So. 2d 9 (Fla. 1985) (adopting Frye standard in Florida).
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Florida Distinction: Ultimate Issue
Florida Distinction: Ultimate Issue
Florida’s rule permitting expert testimony on the ultimate issue does not contain the language of Fed. R. Evid. 704 that prohibits an expert from stating an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense. See Fla. Stat. § 90.703. However, while an expert can state an opinion regarding a defendant’s sanity (Garron v. State, 528 So. 2d 353 (Fla. 1988), an expert cannot state an opinion as to a legal conclusion, such the existence of “criminal capacity” or the lack of a “depraved mind”. Gurganus v. State, 451 So. 2d 817 (Fla. 1984).
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Florida Distinction: Basis of Opinion
Florida Distinction: Basis of Opinion
As part of the controversy regarding the use of the Daubert v. Frye standards, the Florida Supreme Court also refused to adopt for purposes of the Florida judicial procedural rules, the language in the Fla. Stat. 90-704, which tracks the language in Fed. R. Evid. 703, permitting the proponent of an expert’s opinion to disclose otherwise inadmissible facts and data on which the expert based his opinion jury if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. In re: Amends. to Fla. Evid. Code, ___ So.3d ___ (Fla. Sup. Ct. Opinion No. 16-181, Feb. 16, 2017).
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Florida Distinction: Voir Dire of Expert
Florida Distinction: Voir Dire of Expert
Florida allows the party against whom an expert opinion is offered to conduct a voir dire examination of the witness about the underlying facts or data for the opinion. If the party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinion will be inadmissible unless the offering party establishes such underlying facts or data. Fla. Stat. § 90.705(2).
While on direct examination an expert witness cannot bolster their credibility by "testifying that a treatise agrees with their opinion” (Schwarz v. State, 695 So. 2d 452, 455 (Fla. Dist. Ct. App. 1997)), a writing on a subject of science, art, or other specialized knowledge may be used in cross-examining an expert witness if either the witness or the court recognizes the author or the writing as authoritative. Fla. Stat. § 90.706. Note that, since there is no hearsay exception under the Florida rules for admission of information contained in a learned treatise, the writing is not admissible as substantive evidence (see VII.B.8. Learned Treatises, infra).
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Florida Distinction: Court Appointed Expert
Florida Distinction: Court Appointed Expert
Florida has no rule in its Evidence Code specifically empowering judges to appoint experts, but there are other authorities that permit courts to do this. Peter Nicolas, Florida and Federal Evidence Rules with Commentary (2009–2010) 226.
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Florida Distinction: Interpreters
Florida Distinction: Interpreters
The Florida Code specifically provides that interpreters are not only available to help people with difficulty in English, but also may be provided for any person, such as a child or person who is mentally or developmentally disabled, who cannot be reasonably understood, or who cannot understand questioning without the aid of the interpreter, Fla. Stat. § 90.606, and for deaf people, Fla. Stat. § 90.6063. The interpreter must take an oath not only for testimony, but for any writing that he deciphers or translates. Fla. Stat. § 90.606(3).
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Florida Distinction: Photographs of Property Wrongfully Taken
Florida Distinction: Photographs of Property Wrongfully Taken
In any prosecution for a crime involving the wrongful taking of property, a photograph of the property in question may be admissible to the same extent as if the property itself were introduced as evidence. The photograph must include (i) a written description of the property, (ii) the name of the property’s owner, (iii) the location where the alleged wrongful taking occurred, (iv) the name of the investigating law enforcement officer, (v) the date the photograph was taken, and (vi) the name of the photographer. The writing must be made under oath by the investigating law enforcement officer. The photograph itself must also be signed by the photographer. Fla. Stat. § 90.91. There is no analogous federal rule.
A failure to comply with the statute’s technical requirements will not result in the inadmissibility of the photograph unless the objecting party demonstrates that prejudice results from the failure to comply with those requirements. State v. Roberson, 152 So. 3d 776 (Fla. Dist. Ct. App. 2014).
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Florida Distinction: Business Records
Florida Distinction: Business Records
In order for a business record to be self-authenticating, Florida does not require that an adverse party be given advance notice of a party’s intent to offer the record or the proponent of the record to make the record available for inspection, but does require that the record be accompanied by an affidavit signed by the custodian of the record or another qualifying person that the hearsay exception requirements for a business record (see VII.B.6. Records of Regularly Conducted Activity (Business Records), infra) have been met, including, if it contains an opinion, the requirements for opinion testimony. Fla. Stat. § 90.902(11); Benardo v. Dep't of Revenue, 819 So. 2d 161 (Fla. Dist. Ct. App. 2002).
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Florida Distinction: Court Reporter’s Report
Florida Distinction: Court Reporter’s Report
A report of a court reporter, when certified as a correct transcript of the testimony and proceedings, is prima facie evidence of a correct statement of the testimony and proceedings. Fla. Stat. § 90.108(2).
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Florida Distinction: Duplicate
Florida Distinction: Duplicate
In addition to the above-mentioned exceptions, in Florida, a duplicate is inadmissible if the document is a negotiable instrument, security, or writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type transferred by delivery in the ordinary course of business with an endorsement or assignment. Fla. Stat. § 90.953(1).
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Florida Distinction: Privileges
Florida Distinction: Privileges
Unlike the federal rules, the Florida Evidence Code sets forth nine specific privileges:
i) Journalist;
ii) Lawyer-client;
iii) Psychotherapist-patient;
iv) Sexual assault counselor-victim;
v) Domestic violence advocate-victim;
vi) Husband-wife;
vii) Communications made to clergy;
viii) Accountant-client; and
ix) Trade secrets.
Fla. Stat. §§ 90.5015–90.506.
All privileges except for the lawyer-client privilege and communications to clergy may be overcome to enable disclosure of information about abuse of children or the elderly or disabled. Florida specifically provides that, unless constitutionally or statutorily protected, no person in a legal proceeding has a privilege to (i) refuse to be a witness, (ii) refuse to disclose any matter or produce any object or writing, or (iii) prevent another from being a witness, disclosing any matter, or producing object or writing. Fla. Stat. § 90.501.
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Florida Distinction: Waivers in Civil Actions
Florida Distinction: Waivers in Civil Actions
If the privilege holder has initiated a civil action, the privilege is not waived merely because the information sought is needed by the opposing party to provide information helpful for the defense of a cause of action or cross-examination of a witness. Jenney v. Airdata Wiman, Inc., 846 So. 2d 664, (Fla. Dist. Ct. App. 2003) (attorney-client privilege); Choice Rest. Acquisition Ltd. v. Whitley, Inc., 816 So. 2d 1165 (Fla. Dist. Ct. App. 2002) (accountant-client privilege). However, if the adverse party claims that the information protected by the privilege is necessary for the privilege holder’s claim for relief or affirmative defense, the court, upon motion, may dismiss the claim for relief or the affirmative defense to which the privileged testimony would relate. In making its determination, the court may engage in an in camera inquiry into the privilege. Fla. Stat. § 90-510.
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Florida Distinction: No Spousal Immunity
Florida Distinction: No Spousal Immunity
In Florida, spouses may be called to testify against one another in both civil and criminal trials. See Fla. Stat. § 90.504 (Sponsor’s Note (1976 Enactment)). Note, however, that either spouse may claim the marital communications privilege (see b. Confidential Marital Communications, below).
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Florida Distinction: Husband-Wife Privilege
Florida Distinction: Husband-Wife Privilege
Florida calls the spousal privilege the “husband-wife privilege” and the privilege is essentially the same as confidential marital communications. The authority of a spouse, guardian, or conservator of a spouse to claim the privilege is presumed in the absence of contrary evidence.
In addition to the aforementioned common-law exceptions, the privilege does not exist in a criminal proceeding if the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made. Fla. Stat. § 90.504.
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Florida Distinction: Exceptions to Attorney-Client Privilege
Florida Distinction: Exceptions to Attorney-Client Privilege
In addition to the aforementioned exceptions, there is no attorney-client privilege when a communication is relevant to:
i) An issue between parties who claim through the same deceased client; or
ii) An issue concerning the intention or competence of a client executing an attested document if the lawyer is the attesting witness or concerning the execution or attestation of the document.
Fla. Stat. § 90.502(4).
These exceptions help a court determine the client’s intention(s).
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Florida Distinction: Agency Attorneys
Florida Distinction: Agency Attorneys
Florida Sunshine Law mandates that agency meetings of public officials must be open to the public. The public nature of the meetings means that communications between officials and agency attorneys at such meetings are not confidential, and no attorney-client privilege arises from them. Fla. Stat. § 286.011.
However, Florida law allows for private meetings between officials and agency attorneys to discuss matters of pending litigation. These meetings must be recorded by a court reporter and the transcript made available as a public record at the conclusion of the litigation. Fla. Stat. § 286.011(8).
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Florida Distinction: Other Privileges
Florida Distinction: Other Privileges
Sexual Assault Counselor-Victim
Domestic Violence Advocate-Victim
Trade Secret:
Mediation:
Accident reports:
Fiduciary Lawyer-Client Privilege:
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Sexual Assault Counselor-Victim:
Sexual Assault Counselor-Victim: A victim of a sexual assault or battery or an attempted sexual assault or battery has a privilege to refuse to disclose and prevent another from disclosing confidential communications made by the victim to a sexual assault counselor or a trained volunteer of a state or private rape crisis center as well as any record made in the course of advising, counseling, or assisting the victim. The privilege also extends to any advice given by the sexual assault counselor or trained volunteer. The victim’s consent for the counselor or volunteer to disclose a confidential communication or record must be in writing. In addition to the victim or representative of the victim (e.g., attorney, guardian), the privilege may be claimed by the sexual assault counselor or trained volunteer, but only on behalf of the victim. The counselor or volunteer’s authority to claim the privilege is presumed in the absence of evidence to the contrary. Fla. Stat. §90.5035.
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Domestic Violence Advocate-Victim:
Domestic Violence Advocate-Victim: Similarly, a victim of domestic violence or attempted domestic violence has a privilege to refuse to disclose and prevent another from disclosing confidential communications related to the incident of domestic violence made to a domestic violence advocate, including a trained volunteer as well as a paid employee, of a public or private domestic violence center, as well as any record made in the course of advising, counseling, or assisting the victim. Fla. Stat. §90.5036.
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Trade Secret:
Trade Secret: The owner of a trade secret has a privilege to refuse to disclose and prevent another from disclosing the trade secret, so long as allowance of the privilege does not conceal fraud or otherwise work an injustice. The privilege may be claimed by the owner or the owner’s agent or employee. Fla. Stat. §90.506. When the privilege is asserted in response to a discovery request, the court must balance the requesting party’s need for the information with protection of the trade secret. Bright House Networks, LLC v. Cassidy, 129 So. 3d 501 (Fla. Dist. Ct. App. 2014).
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Mediation
Mediation: All communications made in the course of mediation are confidential unless waived by all parties. Any party to the mediation may refuse to testify and may prevent other parties from testifying about mediation communications. However, a signed written agreement reached during mediation is not privileged, nor is any communication that is used to (i) plan, commit, or attempt to commit a crime; (ii)conceal ongoing criminal activity; or (iii) threaten violence. Fla. Stat. § 44.405.
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Accident reports:
Accident reports: Florida Traffic Crash Reports may not be used as evidence in any criminal or civil proceeding. However, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated. Fla. Stat. § 316.066(5).
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Fiduciary Lawyer-Client Privilege:
Fiduciary Lawyer-Client Privilege: A communication between a lawyer and a client acting as a fiduciary (e.g., personal representative, trustee, guardian, etc.) is privileged and protected from disclosure to the same extent as if the client were not acting as a fiduciary. Only the person or entity acting as a fiduciary is considered a client of the lawyer for purposes of this privilege. Fla. Stat. § 90.5021.
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Florida Distinction: Compromise Offers and Negotiations
Florida Distinction: Compromise Offers and Negotiations
The Florida rule does not contain the exceptions discussed at a., above. See Fla. Stat. § 90.408; Saleeby v. Rocky Elson Constr., Inc., 3 So. 3d 1078 (Fla. 2009) (settlement related evidence not admissible to impeach witness on grounds of bias).
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Florida Distinction: Offers to Pay Medical Expenses
Florida Distinction: Offers to Pay Medical Expenses
This exclusion is limited to civil proceedings; it does not apply to a criminal prosecution. Johnson v. State, 625 So. 2d 1297 (Fla. Dist. Ct. App. 1993).
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Florida Distinction: Statements of Sympathy
Florida Distinction: Statements of Sympathy
Any statements, writings, or benevolent gestures expressing sympathy or compassion relating to the pain, suffering, or death of a person involved in an accident made to that person or to that person’s family are inadmissible in a civil action. For this purpose, “family” means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half-brother, half-sister, adopted child of parent, or spouse’s parent of an injured party. However, statements of fault made in conjunction with or in addition to such statements are admissible. Fla. Stat. § 90.4026.
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Florida Distinction: Victim’s Conduct
Florida Distinction: Victim’s Conduct
In a prosecution for sexual battery, reputation evidence relating to a victim’s prior sexual conduct and evidence presented to show the victim’s manner of dress at the time of the offense incited the sexual battery are inadmissible. Fla. Stat. § 794.022(3). Similarly, evidence that the victim voluntarily entered the defendant’s house is not admissible. Mills v. State, 681 So. 2d 878 (Fla. Dist. Ct. App. 1996).
Specific instances of prior consensual sexual activity between the victim and a person other than the defendant are inadmissible in a sexual battery prosecution unless it is established at an in camera hearing to the court that such evidence may prove:
i) The defendant was not the source of semen, pregnancy, injury, or disease; or
ii) If consent is an issue, that such evidence tends to establish a pattern of conduct or behavior by the victim that is so similar to the conduct or behavior in the case at hand that it is relevant to the issue of consent.
Fla. Stat. § 794.022(2).
If consent is raised as a defense, evidence of the victim’s mental incapacity or defect is admissible to prove that consent was not intelligent, knowing, or voluntary. Fla. Stat. § 794.022(4).
Evidence of the use of a prophylactic device or the victim’s request for the defendant to use such a device is not determinative of the issue of whether the offense was committed or whether the victim consented. Fla. Stat. § 794.022(5); Strong v. State, 853 So. 2d 1095 (Fla. Dist. Ct. App. 2003).
A victim’s testimony need not be corroborated in a prosecution for sexual battery. Fla. Stat. § 794.022(1).
Note that the Florida does not impose a pre-trial 14-day notice requirement as does the federal rule nor does the Florida rule address the admissibility of such evidence in a civil case.
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Florida Distinction: Prior Consistent Statements
Florida Distinction: Prior Consistent Statements
The Florida rule does not recognize rehabilitation of declarant’s credibility (item ii) as ground for admitting a prior consistent statement as nonhearsay. See Fla. Stat. §90.801(2)(b).
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Florida Distinction: Admissions
Florida Distinction: Admissions
In Florida, an opposing party’s statement is characterized as an exception to the hearsay rule rather than as nonhearsay. In addition, the Florida rule labels this exception as “admissions.” Fla. Stat. §90.803(18).
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Florida Distinction: Statement Under Belief of Impending Death
Florida Distinction: Statement Under Belief of Impending Death
In Florida, statements made by a declarant while reasonably believing that death was imminent and that concern the cause or circumstances of the impending death are admissible in all civil and criminal trials. The declarant need not verbalize his belief of impending death; his belief can be established by other evidence. Fla. Stat. § 90.804(2)(b).
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Florida Distinction: Statement by Deceased or Ill Declarant Similar to One Previously Admitted
Florida Distinction: Statement by Deceased or Ill Declarant Similar to One Previously Admitted
Florida recognizes a hearsay exception for which there is no analogous federal rule. In an action against a personal representative, heir, assignee, legatee, devisee, trustee, or survivor of a deceased person, or guardian of a mentally incompetent person, a written or oral statement made by an unavailable declarant regarding the same subject matter as another statement that was previously offered and admitted into evidence by an adverse party is admissible as a hearsay exception. Fla. Stat. §90.804(2)(e). This exception was created when the Florida Dead Man Statute was repealed in 2005.
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Florida Distinction: Spontaneous Statement
Florida Distinction: Spontaneous Statement
In Florida, present sense impressions are called “spontaneous statements.” The exception is the same as the federal rule except that a spontaneous statement is inadmissible if it is made under circumstances that indicate a lack of trustworthiness. Fla. Stat. § 90.803(1).
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Florida Distinction: Statement of Then-Existing Condition
Florida Distinction: Statement of Then-Existing Condition
A statement of a then-existing mental, emotional, or physical condition is inadmissible if made under circumstances that indicate its lack of trustworthiness. Fla. Stat. § 90.803(3)(b)(2).
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Florida Distinction: Statement for Purposes of Medical Diagnosis or Treatment
Florida Distinction: Statement for Purposes of Medical Diagnosis or Treatment
In Florida, the declarant can come only from a more limited pool than under the federal law. The statement must be made by a person seeking the diagnosis or treatment, or who has knowledge of the facts and is legally responsible for a person who is unable to communicate the facts. Fla. Stat. §90.803(4).
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Florida Distinction: Recorded Recollection
Florida Distinction: Recorded Recollection
The Floridarule does not contain a provision for the use of a record adopted by a witness (item ii, above). Fla. Stat. § 90.803(5). However, Florida courts have admitted a victim’s videotaped statement when police recorded the victim making the statement. Montano v. State, 846 So. 2d 677 (Fla. Dist. Ct. App. 2003).
Florida requires the witness herself to vouch for the accuracy of the record at the time written. “If the witness is unable to adequately recall making the record, the witness may nevertheless verify the record or memorandum by testimony that: (1) although the witness does not recall the statement, the witness has a habit of recording such matters correctly or (2) the witness believes the statement is correct because the witness would have been truthful in providing the statement.” Polite v. State, 116 So. 3d 270, 279 (Fla. 2013).
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Florida Distinction: Opinion Within Business Record
Florida Distinction: Opinion Within Business Record
An opinion or diagnosis sought to be entered as part of a business record is inadmissible unless it would be admissible if the person whose opinion is recorded testified to the opinion according to the rules governing opinion testimony. Fla. Stat. § 90.803(6)(b). See § III.D. Opinion Testimony, supra.
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Florida Distinction: Public Records and Reports
Florida Distinction: Public Records and Reports
In Florida criminal cases, the exception regarding officers’ observations in criminal cases (item ii, above) does not apply to an affidavit containing information about testing for alcohol or drugs when the defendant is charged with driving a vehicle or operating a vessel under the influence. Fla. Stat. § 90.803(8). However, admission of such an affidavit may give rise to a Sixth Amendment Confrontation Clause issue.
In addition, Florida does not recognize a hearsay exception for factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case (item iii, above). See Fla. Stat. § 90.803(8).
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Florida Distinction: Learned Treatises
Florida Distinction: Learned Treatises
There is no exception to the hearsay rule for learned treatises in Florida. They are admissible only on cross-examination to attack the credibility of an expert once the treatise or other such literature has been established as authoritative (either by the court or by acknowledgment of the expert being cross-examined). Fla. Stat. §90.706.
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Florida Distinction: Market Reports and Commercial Publications
Florida Distinction: Market Reports and Commercial Publications
These statements must also meet the requirement that, in the opinion of the court, the sources of information and method of preparation justify their admission. Fla. Stat. § 90.803(17).
vii) Reputation concerning personal or family history, boundaries or general history, or character (Fed. R. Evid. 803(19)–(21)); and
viii) A judgment admitted to prove a matter of personal, family, or general history or a boundary, if the matter was essential to the judgment and could be proved by evidence of reputation. Fed. R. Evid. 803(23).
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Florida Distinction: Judgment to Prove Matter of History or Boundary
Florida Distinction: Judgment to Prove Matter of History or Boundary
The Florida Evidence Code does not have a hearsay exception that corresponds to the federal hearsay exception for a judgment admitted to prove a matter of personal, family, or general history or a boundary.
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Florida Distinction: Other Hearsay Exceptions—Victim of Abuse or Neglect
Florida Distinction: Other Hearsay Exceptions—Victim of Abuse or Neglect
An out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 16 years or less describing an act of child abuse, neglect, sexual abuse against a child, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child is admissible if:
i) At an in camera hearing, the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
ii) The child testifies, or, if the child is unavailable, there is corroborative evidence of the offense.
An out-of-court statement made by an elderly person or disabled adult describing an act of abuse, neglect, exploitation, battery, assault, sexual battery, or any other violent act is admissible if:
i) At an in camera hearing, the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
ii) The elderly person or disabled adult testifies, or, if the elderly person or disabled adult is unavailable, there is corroborative evidence of the offense.
The term “unavailable” in both cases includes a finding that participation in the proceeding would result in a substantial likelihood of severe emotional or mental harm. Fla. Stat. § 90.803(23), (24).
In a criminal action, the prosecution must notify the defendant no later than 10 days prior to trial of any statements to be used at trial that qualify under this hearsay exception. Fla. Stat. § 90.803.
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Florida Distinction: No Residual Exception
Florida Distinction: No Residual Exception
Florida has not adopted a “catch-all” exception.
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Florida Distinction: Closed-Circuit and Recorded Testimony
Florida Distinction: Closed-Circuit and Recorded Testimony
Florida permits a victim or other witness under the age of 18 or who has an intellectual disability to testify by closed-circuit television or by videotaped testimony upon a finding that there is a substantial likelihood that such a witness will suffer at least moderate emotional or mental harm due to the presence of the defendant, if such victim or other witness is required to testify in open court. The defendant, upon request, must be provided with direct and immediate contact with his attorney who cross-examines the victim or other witness. Fla. Stat. §§ 92.53, 92.54.
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Florida Distinction: Corpus Delicti Rule
Florida Distinction: Corpus Delicti Rule
Florida is part of the minority of states that follows the corpus delicti (“body of the crime”) rule, which refers generally to the proof that a crime has been committed, and prevents a defendant from being convicted simply on his confession or admissions. Under Florida law, the corpus delicti must be established independently of any confession before the confession may be admitted into evidence. Bassett v. State, 449 So. 2d 803 (Fla. 1984); Frazier v. State, 107 So. 2d 16 (Fla. 1958).
In order to prove corpus delicti, the State must establish that:
i) A crime of the type charged was committed; and
ii) The crime was committed through the criminal agency of another.
State v. Allen, 335 So. 2d 823, 825 (Fla. 1976).
Each element of the relevant offense must be shown to exist, but the proof need not show the specific identity of the person who committed the crime. Burks v. State, 613 So. 2d 441, 443 (Fla. 1993). In other words, the evidence must “tend to show” that the charged crime was committed, but it is not necessary to prove that the defendant committed the crime. See Wainwright v. State, 704 So. 2d 511 (Fla. 1997); Franqui v. State, 699 So. 2d 1312, 1317 (Fla. 1997).
Note, however, that the corpus delicti rule is not required in sex abuse cases, including child sexual abuse, Fla. Stat. § 92.565, or in money laundering cases, Fla. Stat. § 560.123(9).
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EXAM NOTE 1
EXAM NOTE: Unresponsive answers are only subject to motions to strike by the examining counsel.
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EXAM NOTE 2
EXAM NOTE: Habit is more specific than character evidence. On the MBE, words like “always” or “every time” generally refer to habit, whereas “often” or “frequently” are more likely to imply character evidence.
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EXAM NOTE 3
EXAM NOTE: MBE questions typically test bias in the form of witnesses who are employed by one of the parties, or witnesses for the prosecution who testify in exchange for reduced or dropped charges.
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EXAM NOTE 4
EXAM NOTE: A statement that is not hearsay is not automatically admissible. For exam purposes, it is important to keep in mind that the statement must be admissible under the other rules restricting admission, such as the rules on privileges.
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EXAM NOTE 5
EXAM NOTE: Beware of fact patterns involving prior out-of-court identifications by a witness who is not testifying at the current trial and therefore is not subject to cross-examination. This rule cannot apply, for instance, if the witness is dead or otherwise unavailable to testify.
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EXAM NOTE 6
EXAM NOTE: Do not confuse this “state of mind” hearsay exception with circumstantial evidence of the declarant’s state of mind, which is not hearsay. (See §VI.A.3.c. State of mind, supra.) To fall under the hearsay exception, the statement must be offered to prove that the declarant acted in accordance with his stated intent.
