FL Evidence Part 2: § 800-920

Question 1

Define Hearsay and the Hearsay Rule.

Answer 1

Hearsay” is an out of court statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

A statement offered to show its effect on a listener, and not for the truth, is not hearsay. A statement is non-hearsay if it is offered to show knowledge of danger in advance, capability, on notice, ownership

Hearsay rule. Except as provided by statute, hearsay evidence is inadmissible

Question 2

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: {CHOOSE ONE}

a)  Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a prior trial, hearing, or other proceeding, or in a deposition;
(b)  Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c)  One of identification of a person made after perceiving the person.
(d) All of the Above

Answer 2

(d) All of the Above

**Prior sworn Inconsistent statements are not hearsay in FLORIDA (as opposed to an Exception to the Hearsay Rule)

Question 3

How many enumerated exceptions are there to the Hearsay Rule, where the availability of the declarant is immaterial (not limited to situations where the W is unavailable) ?

Answer 3

ANSWER:

24

in 6 MAJOR GROUPINGS -

1. “Admissions” by a Party-Oppornent and Former Testimony
2. “Reputation” concerning personal or family history or boundaries, Character amonst associates
3. “Immediate/reflective at the time:” Spontaneous Statement, Excited Utterance, and Then-Existing Mental, Emotional or Physical Condition
4. “Business Records,” Statements for purposes of medical diagnosis (and Absence of entry in regular business records),a nd including Recorded Recollection,
5. “Public records and reports,” including Vital statistics, (and Absence of Public Record or Entry), Records of documents affecting and interest in property recorded or filed, Ancient Documents, Records of Religious organizations, marriage, baptismal and similar certificates, family records. also Including Market reports and commercial publications
6. “Special Allowance” Statement of child or eldery victim

Question 4

How many Exceptions to the Hearsay Rule are there, where the defendant must be “Unavailable?

Answer 4

ANSWER:

6

(1)  Former testimony.
(2)  Dying Declaration. Statement under belief of impending death.
(3)  Statement against interest.
(4)  Statement of personal or family history
(5)  Prior Consistent Statement - Statement by deceased or ill declarant similar to one previously admitted.
(6)  Statement offered against a party that wrongfully caused the declarant’s unavailability.

Question 5

“Unavailability as a witness” means that the declarant: {FILL IN BLANKS}

(a)  Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;
(b)  Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;
(c)  {__________} of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial;
(d)  Is unable to be present or to testify at the hearing because of (_______________)
(e)  Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

Answer 5

ANSWER

(c) Has suffered a lack of memory
(d) death or then-existing physical or mental illness or infirmity;

Question 6

Hearsay Exception: Spontaneous Statement

A spontaneous statement describing or explaining an event or condition made while___________________ or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.

Answer 6

ANSWER

the declarant was perceiving the event or condition,

Question 7

Hearsay Exception: Excited Utterance

A statement or excited utterance relating to a startling event or condition made while the declarant ______________________.

Answer 7

ANSWER:

was under the stress of excitement caused by the event .

An excited utterance does not have to be made at the exact time of the startling event, but must be made while the declarant is still in a state of surprise or shock from the incident.

Question 8

Hearsay Exception: Present Sense Impression

aka. THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.

A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to prove: 1.___________ and 2. _____________

(The justification for the exception is that the “closeness in time between the event and the declarant’s statement reduces the likelihood of deliberate or conscious misrepresentation.”

Answer 8

1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2.  Prove or explain acts of subsequent conduct of the declarant.

Note, however, this subsection does not make admissible:

1.  An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will. OR
2.  A statement made under circumstances that indicate its lack of trustworthiness.

Question 9

Hearsay Exception: Statements for Medical Diagnosis or Treatment

Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment,{ or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts}, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

QUESTION: Can this include statements relating to guilt or fault for the injury? (ie Ray shot me)

Answer 9

ANSWER:

Generally No.

Statements concerning fault or guilt usually are NOT considered reasonably pertinent to diagnosis or treatment, and fall outside the scope of the medical treatment

Question 10

Hearsay Exception: Recorded Recollection

A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.

A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless __________

Answer 10

ANSWER:

offered by an adverse party.

Question 11

FRE Rule 803(1) provides an exception for “[a] statement describing or explaining an event or condition made ______________

Answer 11

ANSWER:

while the declarant was perceiving the event or condition, or immediately thereafter.

The justification for the exception is that the “closeness in time between the event and the declarant’s statement reduces the likelihood of deliberate or conscious misrepresentation.” State v. Morgan, 359 N.C. 131, 154 (2004).

Question 12

Hearsay Exception: Business Records

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge,is admissible if: {3 Requirements}

(a)

(b)

(c)

Answer 12

ANSWER

(a) kept in the course of a regularly conducted business activity
(b) it was the regular practice of that business activity to to do so
(c) a foundation is laid via testimony of the custodian or other qualified witness,

(unless the sources of information or other circumstances show lack of trustworthiness.)

Question 13

Hearsay Exception: Business Records - Pre-requisites

A party intending to offer evidence by means of a certification or declaration shall (1) ______and (2) __________ prior to the introduction of the records.

Answer 13

ANSWER

(1) serve reasonable written notice of that intention upon every other party, and
(2) shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence.

A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may allow.

Question 14

HEarsay Exception - ABSENCE OF ENTRY IN RECORDS

T/F. Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved.

Answer 14

Answer:

TRUE

… unless the sources of information or other circumstances show lack of trustworthiness.

Question 15

Hearsay Exception - Public Records and Reports

Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies…observed pursuant to duty imposed by law or a duty to report, are admissible in :

(a) civil cases
(b) criminal cases
(c) both civil and criminal cases
(d) neither civil nor criminal cases.

Answer 15

ANSWER

(a) Civil Cases

Excluded = in criminal cases, matters observed by a police officer or other law enforcement personnel are not automatically admissible as an exception to the Hearsay Rule.

Question 16

T/F. Florida law states that a crash report made by a person involved in a crash or a statement of such person to a police officer is not admissible into evidence in any trial—civil or criminal.

Answer 16

ANSWER:

True

Crash reports are only used internally by the Department of Transportation in Florida, not in legal proceedings.

Question 17

Hearsay Exception: Vital Statistics

T/F Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, are admissible if a report was made to a public office pursuant to requirements of law, provided that a sufficient foundation has been laid for the accuracy of the record.

Answer 17

ANSWER

False.

The rule does not require “a sufficient foundation to be laid for the accuracy of the record.”

Question 18

Hearsay Exception: Absence of Public Record

Evidence that diligent search failed to disclose a record, report, statement, or data compilation or entry, can be offered to prove the absence of the record, if it would regularly have been made and preserved by a public office and agency.

QUESTION: How can such evidence be presented?

Answer 18

ANSWER:

In the form of a certification, or in the form of testimony,

Question 19

Hearsay Exception : Family & Personal Records

The following are admissible in CIVIL/CRIMINAL/ANY case as exceptions to the Hearsay Rule.

RECORDS OF RELIGIOUS ORGANIZATIONS.—Statements of births, marriages, divorces, deaths, parentage, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.

MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES.—Statements of facts contained in a certificate that the maker performed a marriage or other ceremony if administered by legal authority

FAMILY RECORDS.—Statements of fact concerning personal or family history in family Bibles, charts, engravings in rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones..

Answer 19

ANSWER:

ANY

Question 20

Hearsay Exceptions: Statements in Ancient v Property Documents

What kind of Exception covers statements in a document in existence 20 years or more, which may or may not relate to an interest in property?

Answer 20

ANSWER:

ANCIENT DOCUMENTS.—Statements in a document in existence 20 years or more, the authenticity of which is established.

VS STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY.—A statement contained in a document purporting to establish or affect an interest in property, if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. Does not matter how old the document is.

Question 21

Hearsay Exception: Commercial Publications and Market Reports

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public are admissible in any action… What are some examples?

Answer 21

ANSWER:

Examples include widely published periodicals and publications, newspaper market reports, telephone directories, and city directories. The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate.

Question 22

Hearsay Exception: Admissions.

ADMISSIONS.—A statement that is offered against a party and is:

(a)

(b)

(c)

(d)

(e)

Answer 22

ANSWER:

(a)  The party’s own statement
(b)  A statement of another which the party has manifested an adoption or belief in its truth;
(c)  A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d)  A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
(e)  A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

Question 23

Hearsay Exception: Reputation Concerning Personal or Family History

Evidence of reputation concerning a person’s birth, adoption, marriage, divorce, death, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history is admissible if it is evidenced:

(a)  Among members of a person’s family by blood, adoption, or marriage;
(b)  Among a person’s associates;
(c)  In the community;
(d) All of the Above.

Answer 23

ANSWER:

(d) All of the Above.

Question 24

Hearsay Exceptions: Reputation re: Lands

Evidence of reputation is admissible:

(a) T/F In a community, arising before the controversy about the boundaries of, or customs affecting lands in, the community.
(b) T/F About events of general history which are important to the community, state, or nation where located.

Answer 24

ANSWERS

(a) TRUE
(b) TRUE

Question 25

Hearsay Exception: Reputation as to Character

When evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation.

When can proof may be made of specific instances of that person’s conduct?

Answer 25

ANSWER:

Only in a CIVIL Case, when character or a trait of character of a person is an essential element of a charge, claim, or defense,

Question 26

Hearsay Exceptions: Reputation and Specific Instances of Conduct

In CRIMINAL Cases, Specific instances of an accused person’s prior crimes or bad acts are inadmissible at trial. WHY?

Answer 26

ANSWER:

The underlying reasoning for this evidentiary rule is that a person should be judged for his or her present conduct and not for things that he or she may have done in the past. Just because a person drove while intoxicated three years ago does not mean that the person drove while intoxicated on this occasion. This exclusionary rule is based on principles of fundamental fairness.

However, pursuant to above, if accused alleges “everyone knows I hardly drink” by character/reputation, government can provide evidence to rebut reputation.

Question 27

Hearsay Exception: Former Testimony

Former testimony given by the decarant who testified at another hearing of the same or a different proceeding, or in a deposition, is admissible ONLY IF:

Answer 27

ANSWER

…the party (or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest) against whom the testimony is now offered, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination

Question 28

Hearsay Exception: Child or Elderly Victim

An out-of-court statement made by a

(a) child victim with a physical, mental, emotional, or developmental age of 16 or less describing any act of child abuse or neglect, any act of sexual abuse … OR
(b) an elderly person or disabled adult, as defined in s. 825.101, describing any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult,

….not otherwise admissible, is admissible in evidence in any civil or criminal proceeding IF : _______________

Answer 28

ANSWER;

1.  The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.
2.  The child/elder either testifies; or is unavailable as a witness
3. For elder abuse - provided that there is corroborative evidence of the abuse or offense.

Question 29

DEFINITION OF UNAVAILABILITY.—“Unavailability as a witness” means that the declarant:

Answer 29

ANSWER:

(a)  Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;
(b)  Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;
(c)  Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial;
(d)  Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or
(e)  Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

Question 30

HEARSAY EXCEPTIONS.— Former Testimony

Former testimony is admissible provided that the declarant is unavailable as a witness, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

What is unique about FLORIDA’s application of this exception?

Answer 30

ANSWER:

Florida now allows prior sworn testimony to be introduced even if the party that it is being used against was not present when the prior testimony was taken. Rule was broadened in 1998

Under the amended version of the exception on former testimony, prior testimony can be read at trial even if the testimony was given in a completely unrelated case, where party’s counsel had no opportunity to cross-examine or otherwise develop the declarant’s testimony, and even if counsel had no notice of the testimony.

This is a significant departure from the pre-amendment, former testimony exception. Before the amendment, the party seeking to admit the former testimony was required to establish that the party against whom the testimony was offered had been afforded an opportunity to cross-examine and had a similar motive to develop the testimony.

Question 31

Hearsay Exceptions - Declarant Unavailable: Dying delcaration

Astatement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.

This rule applies:

(a) in a civil or criminal trial
(b) in a civil action
(c) in a criminal prosecution
(d) Always - because it is considered non-hearsay

Answer 31

ANSWER

(a) In a civil or criminal trial

Question 32

Hearsay Exception - Declarant Unavailable: Statement Against Interest

Defined. A statement that could potentially put the original declarant at a disadvantage may be admissible as hearsay, because the assumption is that he or she would not say it unless it were true.

Cite an example of such a statement.

Answer 32

ANSWER

An example could be “I was texting- I didn’t even see her step into the street.”

Question 33

Hearsay Exception - Declarant Unavailable: Others

In addition to exceptions for dying declarations, statements against interest and former testimony, there are 3 other exceptions to the Hearsay Rule requiring the declarant to be unavailable. List.

(1)

(2)

(3)

Answer 33

ANSWER

(1)  Statement of personal or family history.—A statement concerning the declarant’s own birth, adoption, marriage, divorce, parentage, ancestry, or other similar fact of personal or family history, including relationship by blood, adoption, or marriage, even though the declarant had no means of acquiring personal knowledge of the matter stated.
(2)  Statement by deceased or ill declarant similar to one previously admitted.—(generally in estate matters) when a declarant is unavailable , a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.
(3)  Statement offered against a party that wrongfully caused the declarant’s unavailability.—A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.

Question 34

T/F Requirement of authentication or identification. Authentication or identification of evidence is required as a condition precedent to its admissibility.

Answer 34

ANSWER;
TRUE

The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Question 35

Best Evidence Rule: Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

A duplicate is admissible to the same extent as an original, unless:

(1)

(2)

(3)

Answer 35

ANSWER:

(1)  The document or writing is a negotiable instrument, a security, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
(2)  A genuine question is raised about the authenticity of the original / document / writing.
(3)  It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

Question 36

The original of a writing, recording, or photograph is not required, and other evidence of its contents is admissible when:

(1)  All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.
(2)  An original cannot be obtained in this state by any judicial process or procedure.
(3)  An original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing.

And/OR (4) _____________________________

Answer 36

ANSWER:

(4) The writing, recording, or photograph is not related to a controlling issue.

Question 37

When it is not convenient to examine in court the contents of voluminous writings, recordings, or photographs, a party may present them in the form of a chart, summary, or calculation by calling a qualified witness.

QUESTION: What is the pre-requisite for introducting summary evidence?

Answer 37

ANSWER:

The party intending to use such a summary must give timely written notice of his or her intention to use the summary, proof of which shall be filed with the court,and shall make the summary and the originals or duplicates of the data from which the summary is compiled available for examination or copying, or both, by other parties at a reasonable time and place.

A judge may order that they be produced in court.

Question 38

When the admissibility under this chapter of other evidence of the contents of writings, recordings, or photographs depends upon the existence of a preliminary fact, the question as to whether the preliminary fact exists is for the court to determine.  

The trier of fact shall determine whether:_________

Answer 38

ANSWER

(a)  The asserted writing ever existed.
(b)  Another writing, recording, or photograph produced at the trial is the original.
(c)  Other evidence of the contents correctly reflects the contents

Question 39

Sunshine Laws/Atty-Client. Atty client privilege applies to representation of government clients (agencies, officials, representatives and employees) :

(a) for routine business activities and in support of discretionary or strategic decisions;
(b) only for matters prior to, and not in anticipation of, litigation
(c) only during pending litigation
(d) none of the above

Answer 39

ANSWER

(c) only during pending litigiation – after case is over, all records are fair game.

Note: Statements between public officials and their attorneys at public agency meetings are also NOT protected.

Question 40

How is Tangible Evidence Authenticated?

Answer 40

ANSWER

1. Personal Knowledge of the witness familiar with the object
2. Distinctive characteristics
3. Chain of Custody

Question 41

How is Documentary Evidence Authenticated?

Answer 41

ANSWER

1. Stipulation of the parties
2. Testimony of an eyewitness; OR
3. Handwriting verification

Question 42

Name Self-Authenticating Documents (short name)

Answer 42

ANSWER:

PUBLIC.

CERTIFIED.

OFFICIAL.

NEWSPAPERS.

TRADE.

NOTARIZED.

COMMERCIAL DOCUMENTS.

BUSINESS RECORDS.