∑(3) Fl(E) F12

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MC3 FL(E) F12

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MC3 FL(E) F12

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6 AREAS OF EVIDENCE

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1) relevance
2) character
3) opinion
4) hearsay
5) privilege
6) writings

Racing Cars Only Have Pricey Wheels

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HABIT [FL]

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Regular response to a repeated stimulus.

Limited Admissibility: In Florida, evidence of a person's habit to prove a pattern of behavior is ADMISSIBLE to CORROBORATE OTHER EVIDENCE that shows the habit occurred at the relevant time but is NOT ADMISSIBLE as DIRECT EVIDENCE.

Look For: 10+ occurrences
Applies to PEOPLE and BUSINESSES.

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EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS

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1) Offers to Compromise (settlements)
REQ: dispute (over liability OR amount)
EVERYTHING IS EXCLUDED

2) Subsequent Remedial Measures (repairs)

3) Offers to Pay Medical Expenses (compassion & generosity)
Only OFFER TO PAY is EXCLUDED.

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MEANS OF PROVING CHARACTER

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FRE: Reputation, Opinion, or Specific Acts (ROSA)

FL: Reputation OR Specific Acts

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CHARACTER EVIDENCE

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G/R: inadmissible

Exceptions:
1) Reputation (D opens the door in CRIMINAL CASE) - FL
Reputation OR Opinion - FRE

2) Character at Issue - S.E.N.D. (Seduction, Entrapment, Negligent Entrustment/Hiring, Defamation)
*Character evidence as proof of conduct in the litigated event is not admissible in a CIVIL case unless character is directly in issue. - FRE

3) Other Acts
M.I.M.I.C. (Motive, Intent, Mistake (absence of), Identity, or a Common plan or scheme)
* Evidence of other crimes, wrongs, or bad acts is not admissible to prove character and conformity therewith, such evidence MAY BE ADMISSIBLE if it is relevant to some issue other than the defendant's character or disposition to commit the crime.

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PROSECUTION REBUTTAL of D's CHARACTER EVIDENCE ABOUT VICTIM [FL]

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In Florida, the prosecution can rebut the D's bad character evidence of the victim only with REPUTATION evidence of the victim's good character for the same trait.

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JUDICIAL NOTICE OF FACT [FL]

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A court MAY, upon being furnished with sufficient information, take judicial notice when a party requests it and provides each adverse party TIMELY WRITTEN NOTICE of the request.

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JUDICIAL NOTICE OF LAW [FL]

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MANDATORY Judicial Notice

A Florida court SHALL take judicial notice of:
(i) Decisional, constitutional, and public statutory law and resolutions of the FL Legislature adn teh Congress of the United States.
(ii) Ordinances and municipal and county charters, the enforcement of which is within the jurisdiction of the court.
(iii) Florida rules of court that have statewide application, its own rules, and the rules of the United States courts adopted by the U.S. S.Ct.
(iv) Rules of court of the U.S. S.Ct. and of the U.S. Courts of Appeal.


PERMISSIVE Judicial Notice

Florida courts MAY take judicial notice of:
(xi) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.
(xii) Facts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

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FRYE TEST [FL]

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Novel scientific evidence is admissible if it can be shown that it is SUFFICIENTLY ESTABLISHED to have gained GENERAL ACCEPTANCE IN THE PARTICULAR FIELD to which it belongs.

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DAUBERT+ [FRE]

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Daubert Test + Factors (testable, peer review, rate of error, Frye)

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DNA [FL]

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Admissible in Florida using the FRYE standard.

However, the Florida courts also require that the laboratory testing the DNA follow procedures that also meet the FRYE standard to safeguard against false readings and contamination.

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LEGALLY OPERATIVE DOCUMENTS

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Contracts, Wills, Trusts, etc. are not hearsay.

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HYPNOSIS [FL]

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G/R: inadmissible (CRIM)

Exception: Independent memories are allowed.

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OPINION TESTIMONY - LAY WITNESS [FL]

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Lay opinions are ADMISSIBLE when:

(i) the W cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in the form of opinions;
(ii) the testimony will not mislead the trier of fact; and
(iii) the opinions DO NOT REQUIRE SPECIAL KNOWLEDGE OR TRAINING.

*Opinion Testimony by Lay Witnesses and Experts are admissible.
**Lay witnesses can give opinion about another's sanity, IF the witness can be shown to had the opportunity to observe.

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CREDIBILITY - IMPEACHMENT [FL]

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Attacking a W's TRUTHFULNESS.

G/R: Violence is generally not allowed.
Exception: Bias

G/R: Prior Untruthful ACTS are NOT ALLOWED for impeachment.

*In Florida, unlike the FRE, specific instances of conduct are NOT ADMISSIBLE to impeach the credibility of a witness (i.e., have you ever committed perjury).

[Note] Could ask if witness had every been CONVICTED of perjury.

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FEDERAL DIVERSITY ACTIONS - WHERE STATE LAW APPLIES

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1) Privileges
2) Competency of Witnesses
3) Presumptions

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TESTIMONIAL PRIVILEGES [FL]

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1) Physician-Patient (confidentiality rule)
2) Husband-Wife (Confidential Communications ONLY)
3) Accident Report
4) Sexual Assault Counselor/Trained Volunteer-Victim
5) Accountant-Client
6) Psychotherapist-Patient
7) Clergy-Penetent
8) Attorney-Client
9) Work Product
10) Rape Shield Laws (note: manner of dress is not admissible OR use of condoms to show consent)

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CONFIDENTIAL COMMUNICATIONS

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(i) civil OR criminal cases
(ii) communications only
(iii) both spouses hold it (VETO)
(iv) married at the time of COMMUNICATION (separation generally counts)

[Note] If the communication is made in the KNOWN presence of a stranger, it is NOT PRIVILEGED. However, if the statement was not made within the known hearing of the third party and it is overheard, absent a showing of negligence on the part of the speaker, it remains privileged.

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SPOUSAL IMMUNITY

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(i) CRIM only
(ii) no spousal testimony at all (off the stand)
(iii) only the testifying spouse holds the privilege
(iv) married at the time of TRIAL

[FL] not recognized

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ACCIDENT REPORT PRIVILEGE

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WRITTEN reports made by persons involved in motor vehicle accidents are for the confidential use of the Department of Highway Safety and are NOT ADMISSIBLE in either CRIM or CIVIL trials that arises out of the accident.

Statements made to a law enforcement officer for the purpose of completing the report are also included within the privilege, EXCEPT that at a CRIMINAL TRIAL, an officer may testify to any statement made to him by the person involved in the accident (provided that person's privilege against self-incrimination is not violated).

NOTE: The results of breathe, urine, and blood tests for alcohol, chemicals, or controlled substances conducted AS PART OF A TRAFFIC ACCIDENT INVESTIGATIVE REPORT are ADMISSIBLE in CIVIL and CRIMINAL proceedings.

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PRIOR STATMENT OF IDENTIFICATION [FL]

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A victim's description of her assailant to a 3P is not an "identification" of A PERSON (i.e., what they are wearing) after perceiving him, and thus it will NOT BE ADMISSIBLE at trial by the 3P as nonhearsay.

Look For: line-ups and show-ups
Note:
1) Has to be an identification, not generalization of what the person was wearing or characteristics.
2) Witness has to testify about THEIR OWN prior statements (declarant has to take the stand).

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ADMISSIONS BY PARTY-OPPONENT [FL]

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Admissions are treated as an EXCEPTION to the hearsay rule rather than as nonhearsay.

Note:
1) parties talking - party statement
2) offered by opposing party

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STATEMENTS AGAINST INTEREST

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*Declarant must be UNAVAILABLE

Declarant has to admit something and then become unavailable.

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DYING DECLARATIONS [FL]

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*Admissible in CIVIL and CRIMINAL cases.

(i) unavailable
(ii) REASONABLE BELIEF of impending death
(iii) statement about the CIRCUMSTANCES of their death

[FRE] Civil OR Homicide Cases

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HEARSAY STATEMENT BY DECEASED OF ILL DECLARANT SIMILAR TO STATEMENT PREVIOUSLY ADMITTED [FL]

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In an action against the estate or trust of a deceased person or a representative of a mentally incompetent person, when a declarant is UNAVAILABLE because of DEATH or ILLNESS, an oral or written statement made by the declarant is ADMISSIBLE if it involves the same subject matter as a previously admitted statement made by the same declarant.

* Substitute for the Dead Man's Statute

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LEARNED TREATISES [FL]

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NO EXCEPTION to the hearsay rule for learned treatises.

ADMISSIBLE only to attack the CREDIBILITY of an expert only they have been established as authoritative. -- ONLY FOR IMPEACHMENT

NO REQUIREMENT that the expert rely upon them in forming her opinion.

[FRE] Impeachment and Substantive Evidence

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RESIDUAL "CATCH-ALL" EXCEPTION

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Florida does not recognize a "catch-all" exception to hearsay, the exception must be ENUMERATED.

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JUDICIAL POWER TO COMMENT UPON EVIDENCE

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The judge is PROHIBITED from summing up the evidence or commenting to the jury on its weight or the credibility of the witnesses.

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EXPERT OPINION

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Expert opinion may be in hypothetical form, but must relate to facts in evidence. However, the hypothetical need not include every fact.

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PRIOR INCONSISTENT STATEMENTS

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Prior inconsistent statements may not be used as SUBSTANTIVE EVIDENCE, UNLESS they were made under OATH, during TRIAL, HEARING, or OTHER PROCEEDING or in a DEPOSITION. They are only admissible to attack credibility.

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AUTHORITATIVE WORK - Expert Witness Testimony [FL]

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An authoritative work is NOT ADMISSIBLE as INDEPENDENT, SUBSTANTIVE EVIDENCE, but may be used on cross-examination if Expert or the court finds the writing authoritative. (i.e., medical journal)

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PRIOR CONVICTIONS

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Can't ask about particular felonies, just how many (i.e., is it true that you've been convicted of 3 felonies?)

Convictions of crimes punishable by MORE THAN 1 YEAR'S IMPRISONMENT or involving DISHONESTY or FALSE STATEMENT are ADMISSIBLE to impeach.

When an accused denies a prior conviction, it may be proved by EXTRINSIC EVIDENCE.

[note] MM convictions not involving dishonesty or false statement are HEARSAY not admissible under any exception.

[note] A prior conviction may be shown not only by cross-examination of the W but also by introducing a record of judgment.

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PRESUMPTION

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A presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut or meet the presumption.

[Note] When the basic facts that support a presumption are proven at trial, and no other evidence is introduced, the jury MUST find in accordance with the presumption, because the other party did not meet its burden of going forward with rebuttal evidence.

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JUDICIAL NOTICE [FRE]

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Judicial notice may be taken of facts that are not subject to reasonable dispute because they are generally known within the territorial jurisdiction of the trial court.

In a CRIMINAL CASE the jury should be instructed that it may, but is not required to, accept as conclusive any fact that is judicially noticed.

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BURDEN OF PERSUASION

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The burden of a party to persuade the jury to decide an issue in its favor.

[Note] If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose.

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BURDEN OF GOING FORWARD WITH THE EVIDENCE

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The burden of producing sufficient evidence to create a fact question of the issue involved.

[Note] If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant.

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ADMISSION [FRE]

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An admission by a party-opponent is NOT HEARSAY.

An admission is a statment made or act done that amounts to a prior acknowledgment by one of the parties to an action of one of the relevant facts.

[Note] An admission does not have to be the statement of the party against whom the statement is being offered at trial if it qualifies as a vicarious admission. (i.e., admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime, may be admissible against co-cospirators)

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THE PUBLIC RECORDS ACT AND SUNSHINE LAW

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Generally, communications between all public officers and entities and their attorneys are public record.

Exception: For litigation-related communications, but only until the litigation is concluded.

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REPUTATION TESTIMONY

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The prosecutor is allowed to ask on cross-examination whether the reputation witness has HEARD of particular instances of the D's misconduct pertinent to the trait in question.

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EXCITED UTTERANCE

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Hearsay Exception

*The person who originally made the statement need not be identified.

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SEXUAL BATTERY VICTIM'S REPUTATION

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*In Florida, reputation evidence relating to a victim's prior sexual conduct shall not be admitted into evidence in sexual battery prosecutions.

**In Florida, evidence presented for the purpose of showing the victim's manner of dress at the time of the offense incited sexual battery is not admissible.

***In Florida, SPECIFIC INSTANCES of prior sexual conduct between the victim and persons other than the D ARE ADMISSIBLE when the VICTIM'S CONSENT IS AT ISSUE, provided that the D first establishes to the court in an in camera proceeding that such evidence tends to establish a pattern of conduct or behavior on the party of the victim so similar to the conduct or behavior in the case that it is relevant to the issue of consent.

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COLLATERAL EVIDENCE

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Evidence that would not be admissible other than to contradict testimony.

[Note] Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment (other than by cross-examination) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement. The purpose of the rule is to avoid the possibility of unfair surprise, confusion of issues, and undue consumption of time.

*Evidence that a person has previously filed similar claims is generally inadmissible to show the invalidity of the present claim.