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Flashcards in FL Evidence Deck (54):
1

FL Preliminary Questions

Judges are not specifically allowed to consider inadmissible materials to make admissibility decisions. Includes:
-competency of witnesses
-admissability of evidence
-existence of privileges

2

FL After the Presentation of Evidence

A FL judge Cannot:
-summarize the evidence
-comment on the evidence
-comment on the credibility of a witness OR
-comment on the guilt of the accused

3

FL Judicial Notice

The Ct's acceptance of certain facts as true without requiring formal proof. FL judges can take notice of adjudicative and legislative facts:
-Must take notice of US and FL statewide rules of court and decisions
-May take judicial notice of other laws and rules of ct

4

FL Judicial Notice: Adjudicative Facts

-May take judicial notice of other adjudicative facts that are not subject to reasonable dispute because they are generally known or can be accurately and readily determined from reliable sources .
-If party requests notice, judge MUST take notice if party provides notice to OP and presents sufficient info to ct. Both parties are heard and judge must provide specific grounds for denial

5

FL Judicial Notice: Effect on Jury

May instruct jury:
-Civil: either that the jury must or may accept a judicially noticed fact as conclusively proven
-Criminal: the jury may accept a judicially noticed fact as conclusively proven

6

Witness Exclusions Exceptions

Either a party requests or ct decides that nonparty witnesses are excluded from the ct during the testimony of other witnesses.
FL Exceptions (cannot exclude):
-Civil: party who is a natural person, designated officer or employee of a corp, person whose presence is necessary
-Criminal: victim, next of kin of victim, parent/guardian of minor victim, or victim's lawful rep. UNLESS upon motion ct decides it would be prejudicial to the accused.

7

FL Presumptions

Conclusive presumptions, bursting bubble presumption, and burden shifting presumption

8

FL Proving Character Evidence

Character of a person may be proven only by reputations NOT opinion.

9

FL Character of the Victim

After D has attacked the victim's character, P may only use reputation evidence of the victim's character, this does not open the door to the accused's character.

10

FL Specific Act Evidence

If offered b/c character is an essential element of a charge, claim, or defense specific other acts must be found by the judge to be conditionally relevant and is only admissible if jury could reasonably find that the act actually occurred by clear and convincing evidence.

11

Williams Rule

MIMIC evidence.
-P must give D 10 days notice and describe which acts P intends to use.
-Judge must hold a Williams hearing and determine whether the jury could reasonably find by clear and convincing evidence that the other similar act occurred and probative value is substantially outweighed by the danger of unfair prejudice.
-NOT REQ.D for impeachment/rebuttal evidence

12

Reverse Williams Rule

Applies when the accused claimed that someone else committed the offense and seeks to into specific acts of the other person to prove that he is the real perp.
Acts must be "strikingly similar"

13

FL Routine/Habit Evidence

The actual rule only allows routine practice of an org, but case law permits habit evidence to be admitted ONLY to corroborate other evidence that shows the habit was followed at the relevant time and conformity with the act

14

FL Witness Lack of Competency

A person is disqualified from testifying if ct determines the person is:
-incapable of expressing himself in such a way as to be understood either directly or through interpretation OR
-incapable of understanding the duty to tell the truth

15

FL Child Witnesses

Ct may not req. the taking of an oath if it determines that the child understands the duty to tell the truth and the duty not to lie.
Children under the age of 18 may be assisted in sexual offense cases with service animals subject to ct discretion.

16

FL Interpreters

May be used only for witnesses who need assistance understanding or communicating. more than just needing it for language assistance.

17

FL Impeachment: Character for Truthfulness

Cannot use specific acts of dishonesty or untruthfulness on cross-exam unless they amount to a conviction. Can only call reputation witnesses.

18

FL Impeachment: Prior Convictions

-No time limit on use of convictions (Fed is 10 years).
-Civil cases: judge decides if conviction is "too remote" in time to have a bearing on the present character of the witness.
-Criminal: judge decides if probative value of prior conviction is substantially outweighed by danger of unfair prejudice (no heightened protection).
-Not allowed to ask/name the specifics of the prior crime unless accused is either untruthful or denies the convictions. But D's character witness can be cross-examined about hearing abt specific arrests or convictions

19

FL Impeachment: Pardons and Juvy

Allowed to use convictions that have been pardoned.
Bans all use of juvy convictions for impeachment

20

FL Prior Inconsistent Stmt of Witness

-Upon request of OP, witness must be given the prior stmt
-Extrinsic Evidence: req.s before extrinsic evidence of prior stmt is permitted, NON-party witness must be shown the stmt and allowed the opportunity to explain or deny and OP can question witness abt stmt

21

FL Opinion Testimony from Lay Witness

Admissible if the witness cannot adequately or accurately communicate her perception w/o providing an opinion AND the opinion does not mislead the jury, otherwise only observation evidence is allowed in.

22

FL Opinion Testimony from Expert Witness

-Subject matter of the expert opinion is subject to the Frye test which requires general acceptance by those in the field.
-Can testify as to the ultimate issue in the case
-May state an opinion as to whether the accused had a req.d mental state but cannot make a legal conclusion (ex. whether accused acted w/ depraved mind or lacked crim.L capacity)
-Cannot use inadmissible facts/data when testifying to their opinion

23

FL Photo Evidence

Can use photo of wrongfully taken prop to prove theft of that prop. Must include a writing on back of photo that includes:
-description of prop
-name of owner
-location where it was taken
-name of investigating officer
-date photo was taken
-name and signature of photographer
-made under oath by investigating officer

24

FL Best Evidence Rule

Follow Fed rule but if doc is a duplicate of a negotiable instrument, a security, or a writing that evidences a right to the payment of money (promissory note or check) it is NOT admissible.

25

FL Business Records

May be admitted w/o calling a witness (aka self-authenticating) if:
-contains an affidavit that states the req.d regularity and maintenance AND
-affidavit is made by custodian of record or another qualified person

26

FL Privileges

9 specific privileges:
1. Spousal Immunity (not recognized)
2. Husband-Wife Privilege
3. Lawyer-CL
4. Physician-Patient
5. Pyschotherapist-Patient
6. Clergy-Penitent
8. Accountant-CL
9. Journalist

27

FL Spousal Immunity Privilege

FL doesn't recognize this privilege

28

FL Husband-Wife Privilege

-Protects confidential comms b/w spouses made during the marriage
-can be asserted by either spouse even when marriage is over
-Does Not Apply: spouses suing each other, criminal case when one spouse is charged w/ crime against other or other's child, in criminal proceeding if intro.d by D spouse

29

FL Lawyer-Client Privilege

-Fed rules + comm.s between dept of revenue's child enforcement lawyer and person using those program services; fiduciary/guardian and lawyer regarding that relationship.
-Does NOT apply to comm.s: relevant parties claiming through the same deceased CL OR involving intention or competence of CL if lawyer is an attesting witness to the signing of a doc.

30

FL Physician-Patient

Patient holds privilege for purposes of treatment/diagnosis. Does not apply when condition of patient is at issue or in malpractice cases brought by the patient against the physician.
Can disclose w/ patient's permission or if subject to a ct order.

31

FL Psychotherapist-Patient

-Protects confidential comm.s for the purpose of diagnosis or treatment of mental or emotional condition, including alcoholism and other drug addiction. Group meetings are not confidential.
-Patient holds privilege.
-Does NOT apply: condition is at issue, ct-ordered exam, or commitment proceeding

32

FL Clergy-Penitent

Protects confidential comm.s made privately for the purpose of seeking spiritual counsel and advice, not those made in group settings but other people can be present if it furthers the meeting.

33

FL Accountant-CL

Protects confidential comm.s made by a CL to his accountant, exceptions are similar to attny-CL privilege. If accountant is for the estate, then no privilege

34

FL Journalist Privilege

Professional journalists have a qualified privilege to not disclose info or the identity of sources. Doesn't apply to physical evidence, eye witness observations, or recordings of crimes.
If there's a compelling state interest then ct can order disclosure.
Not waived if journalist publishes or broadcasts the info.

35

FL Public Policy Exclusions of Communications

1. Mediation: stmts are confidential unless waived by all parties. written agreement is not protected
2. Mandatory FL Accident Reports
3. Stmt of sympathy: not admissible but stmts indicating fault are admissible
4. Victim of sexual assault/DV: can refuse to disclose comm.s b/w V and counselor. V holds privilege
5. FL Rape Shield: prior consensual activity b/w V and some other person than D is not admissable unless shown that the other instances are so similar to ones at issue that is becomes relevant to consent

36

Hearsay Admissions Exception

1. Stmt of OP exclusion is called admissions exception
2. D may use stmts by the gov.s agents against the prosecution under the admissions exception

37

FL Co-Conspirator Stmts

-Much stricter than Fed.
-Req.s a judge to find there is evidence independent of the stmts to prove the conspiracy before admitting the co-conspirator's stmts.
-"James Hrg": proof of conspiracy must be shown independent of the Ds stmts

38

FL Declarant Unavailable: Former Testimony

UNCONST.L IN CIVIL CASES. ONLY APPLIES TO CRIM.L CASES.
-Permits former testimony (regardless of the availability of the declarant) to be used in a subsequent civil trial if the party, a predecessor in interest, or a person w/ similar interest has an opportunity and motive to develop the testimony.

39

FL Dying Declaration

Applies in civil cases and all criminal cases

40

FL Stmt by Deceased or Ill Declarant Similar to One Previously Admitted

In suits against an estate of a deceased person, if the stmts of the unavailable declarant are offered by one party, a written or oral stmt made by that declarant regarding the same subject matter may be offered by another party. A will doesn't count for this, has to be a specific stmt of the deceased to come in.

41

FL Spontaneous Stmt

Equivalent of Fed. Present Sense Impression.
Allows "spontaneous stmts" unless judge determines that the circumstances indicate a lack of trustworthiness like a lack of personal knowledge or an improper motive.

42

FL Then-Existing Condition

Allows these stmts except when the judge determines that the circumstances of the stmt indicate a lack of trustworthiness. The judge must make a specific finding abt trustworthiness. State of mind can only show the intent of the declarant.

43

FL Stmt for Medical Diagnosis

More restrictive than fed rule. Generally only permits stmt by the patient, not someone else on their behalf. But:
allows stmt of a person who has legal responsibility for the patient AND who has knowledge of the patient's condition BUT ONLY IF patient is unable to comm.
*Be careful of double hearsay when declarant is quoting someone else.
**stmts of child sex abuse Vs id-ing an abuser are not admissible as stmts for medical diagnosis

44

FL Recorded Recollection

Does not permit the use of adopted stmts made by someone other than the witness

45

FL Business Records Containing an Opinion or Diagnosis

Permitted for admission only if the opinion would be admissable if made by the person who made the opinion under the FL opinion rules.
*Be careful of double hearsay in business records

46

FL Public Records and Reports

In crim.L cases involving DUI for alcohol or drugs, allows admission of an officer's observations contained in police report when the observation relates to the testing for alcohol or drugs.
*Be aware of Confrontation Clause issues

47

FL Use of Learned Treatise

Considered hearsay. Only allows an authoritative treatise to be used for impeachment during cross-exam of an expert witness if:
>that expert admits that the treatise or its author is authoritative OR
> judge finds this by judicial notice

48

FL Market Reports and Commercial Publications

Req.s the ct to find that the sources of the info and method of prep justify admission. Need specific findings.

49

FL Only Hearsay Exceptions

1. Child Victim Stmt
2. Elderly Person or Disabled Adult
3. No FL Catch-All Exception
4. Corpus Delecti Rule

50

FL Only Hearsay Exception: Child Victim Stmt

Civil and Crim.L Cases. Permits stmts of a child victim or a person w/ developmental age of 16 or less to be admitted in child abuse, neglect, or sex assault cases after an in camera proceeding where ct finds the stmt is reliable and either:
-child then testifies
-child is unavailable and there is corroborating evidence of abuse or offense

51

FL Only Hearsay Exception: Elderly Person or Disabled Adult

Allows out of ct stmt of an elderly or disabled adult victim in abuse, neglect, exploitation, assault, battery, or sex cases of the declarant if the ct finds in an in-camera proceeding that the stmt is reliable and either:
-V testifies
-V is unavailable and there is corroborating evidence of the abuse or offense

52

FL Only Hearsay Exception: Catch-All

FL does not have a catch-all or residual exception for hearsay not otherwise included in the rules

53

FL Corpus Delecti Rule

Occurrence of a crime must be proven by more than Ds confession or other stmts.
Exception: does not apply in sex abuse cases, in those cases the crime may be proven solely by using the Ds stmts or confession

54

FL Closed Circuit or Video-Recorded Testimony

Permits the testimony of a V or other witness, either under 18 or developmentally disabled, to testify via either closed circuit tv or video recording. Need motion and specific findings. Must protect both child's rights and Ds rights.