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35 Cards in this Set
- Front
- Back
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JUDICIAL NOTICE Judicial Notice |
Judicial Notice is the recognition that a fact is true by the judge without formal presentation of evidence. |
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JUDICIAL NOTICE B,Common Law Rule |
1. Facts not subject to dispute because they are generally known within the territorial jurisdiction of the court. 2. Facts not subject to dispute because they are capable of certain verification 3. Examples of each. |
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JUDICIAL NOTICE C. Mandatory Judicial Notice |
1. Florida/Federal Constitutions 2. Florida/Federal Public Statutes 3. Florida/Federal Court Decisions 4. Florida/Federal Court Rules. |
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JUDICIAL NOTICE D. Discretionary Judicial Notice - 90.202 |
1. Court decisions, constitutions, public laws of every other state
2. Contents of the Federal Register --- federal regulations 3. Contents of the Florida Administrative Code --- Florida regulations 4. Municipal/county ordinances 5. Court records 6. Facts not subject to dispute because they are generally known within the territorial jurisdiction of the court. 7. Facts not subject to dispute because they are capable of certain verification |
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JUDICIAL NOTICE E. Compulsory Judicial Notice |
1. The court must take judicial notice of the matters listed in F.S. 90.202 if the attorney seeking judicial notice does the following a. Furnish the adverse party with written notice of the Request to Take Judicial Notice. b. Furnish the court with sufficient information to take judicial notice, i.e. a copy of the federal regulation or county ordinance, etc. 2. The court can take judicial notice of a matter on its own motion. a. the court must allow each party to be heard on the appropriateness of taking judicial notice. b. The court may use any reliable source as long as the source is made part of the court record if it has not otherwise been admitted into evidence. 3. If the court denies a request to take judicial notice, the court must inform the parties as early as possible. |
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JUDICIAL NOTICE F. A party can not dispute a fact that has? |
A party can not dispute a fact that has been judicially noticed at trial; the judge may instruct the jury during the trial to accept a matter that has been judicially noticed or he/she can wait until final jury instructions. |
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JUDICIAL NOTICE G. The failure or refusal of the trial judge to take judicial notice does not? |
THe failure or refusal of the trial judge to take judicial notice does not prevent another court (appellate court) from taking judicial notice in subsequent proceedings. |
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II. PRESUMPTIONS - F.S. 90.301-304 Definiton |
A presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established. |
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PRESUMPTIONS For example- |
1. A letter that has been properly addressed, stamped and mailed is presumed to have been recieved by the addressee. 2. If there is a rear-end motor vehicle collision, the driver of the second car is presumed to be negligent 3. Basic fact(s) v. presumed fact 4. THe party against whom a presumption operates has the burden of producing credible evidence that the presumed fact is false. 5. INFERENCE- deduction/conclusion of fact that the trier of fact (jury) can logically make from the existence of another fact or group of facts; the jury is not required to make an inference; examples. |
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PRESUMPTIONS B. Conclusive Presumptions- The party againstwhom the presumption operates can not contradict the presumed fact,i.e., is not permitted to introduce evidence that the presumed fact is nottrue. |
1. If thebasic fact(s) are true, then the presumed fact is true. 2. Conclusive presumptions are created bystatute or common law and are not covered under F.S. 90.301-304. 3. Examples of conclusive presumptions: wa. A child under 12 is conclusively presumedincapable of consenting to sexual intercourse. b. A child under six (6) is conclusivelypresumed incapable of committing contributory/comparative negligence. c. If two persons die simultaneously, each is conclusively presumed to have survived the other for the purpose of inheriting property. |
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PRESUMPTIONS C. PresumptionAffecting the Burden of Producing Evidence (PABPE) |
1. A PABPE requires the trier of fact to assume the existence of the presumed fact unless the party against whom the presumption operates introduces credible evidence that the presumed fact is not true. 2. If the party against whom the presumption operates produces credible evidence that the presumed fact is not true, then the presumption vanishes and the jury decides the case without regard to presumption. 3. A PABPE is a presumption that is primarily to facilitate the determination of the action rather than to implement a public policy favoring the presumed fact. 4. A PABPE does not shift the burden of proof to the party against whom the presumption operates; it only shifts the burden of producing evidence. 5. Examples of PABPE: a. A letter that is properly addressed, stamped and mailed is presumed to have been received by the addressee. b. An operator of a motor vehicle who drives into the rear of another vehicle is presumed negligent. c. An owner of a motor vehicle is presumed to have consented to its use by a third person. d. The unexplained absence of a person for five (5) years presumes the death of that person. e. An attorneys fee that does not exceed 10% of the face amount sued for is presumed reasonable.\ |
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PRESUMPTIONS Examples of Presumption affecting the Burden of Producing Evidence PABPE |
a. A letterthat is properly addressed, stamped and mailed is presumed to have beenreceived by the addressee. b. An operator of a motor vehicle who drivesinto the rear of another vehicle is presumed negligent. c. An owner of a motor vehicle is presumed tohave consented to its use by a third person. d. The unexplained absence of a personfor five (5) years presumes the death of that person. e. An attorneys fee that does not exceed 10% ofthe face amount sued for is presumed reasonable. |
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PRESUMPTIONS Presumptions Affecting the Burden of Proof |
1. Thesepresumptions are primarily to implement a public policy favoring the presumedfact. 2. A presumption affecting the burden of proofshifts the burden of proof to the party against whom the presumption operates;that party must prove that the presumed fact is not true. 3. Examples of presumptions affecting theburden of proof a. A child born during a valid marriage(wedlock) is presumed legitimate. b. There is a presumption of sanity in civilcases. c. There is a presumption that a death is notsuicide. d. Public and elected officials are presumed toperform their duties in a lawful manner. |
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PRESUMPTIONS E. Presumptions in F.S. 90.301-304 apply only in? |
Civil Cases |
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III. Burden of Proof Civil Cases- |
1. The burdenis on the plaintiff/petitioner to prove each element of his/her claim forrelief. 2. The burden is on the defendant/respondent toprove any affirmative defense. 3. In a civil case, the burden of proof is generallyby the greater weight of the evidence (preponderance of the evidence). 4. In some civil cases, the burden of proof isby clear and convincing evidence. a. Oral contracts b. Termination of parental rights c. Revocation of a professional license d. Removing a judge from office |
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Burden of proof B. CriminalCases |
1. The burdenof proof is on the state to prove each element of the crime, except venue,beyond and to the exclusion of every reasonable doubt; venue must be proved bya preponderance of the evidence. 2. If the defendant raises an affirmativedefense, the burden of proof can be on the state or the defendant; the issue isdetermined by statute or common law.
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I. Privileges - F.S. 90.501-510 Definition |
The right to have evidence excluded at trial |
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PRIVILEGES. In Florida, No person has the right to refuse? |
In Florida, no person has the right to refuse to be awitness, refuse to disclose any matter, refuse to produce any object or writingor prevent another from being a witness, disclosing any matter, or fromproducing any object or writing unless the person has a privilege to do sounder one of the following sources: 1. United States Constitution 2. Florida Constitution 3. Chapter 90, Fla. Stat. (Evidence Code) 4. Any other Florida statute |
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PRIVILEGES Privileges under theU.S. Constitution are not codified in Chapter 90 since they are often revisedby U.S. Supreme Court decisions. Examples" |
1. Evidence isproduct of an unreasonable search and seizure (Fourth Amendment). 2. Evidence is product of violation of dueprocess (Fifth/Fourteenth Amendments). 3. Product of violation of defendant’s Miranda rights (Fifth Amendment) 4. Privilege against self-incrimination (FifthAmendment) a. In a criminal case, the defendant has theabsolute right not to testify at trial. b. This privilege applies in both civil andcriminal proceedings. c. Any witness (including the Governor ofFlorida) has the right to refuse to answer any question if the answer maysubject the witness to a criminal penalty; if the witness could onlysuffer a loss of money or property, then the witness can not use the privilege.) |
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PRIVILEGES Florida Constitution - Most of the federal privileges are recognized in ? |
Most of the federal privileges are recognized in theDeclaration of Rights in the Florida Constitution; Art. I, §23, Fla. Const.provides a specific right to privacy. |
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PRIVILEGES E. Other Florida statutes can also be a sourceof privilege |
1. Drug/alcohol treatment 2. Mediation proceedings 3. Accident (crash) report (AR) privilege ---F.S. 316.066 a. The report itself is not admissible; even without F.S. 316.066, the report would be hearsay. b. The AR privilege also applies to any statements made by a person involved in the accident/crash to the investigating officer for the purposes of completing the report. c. Persons involved in the accident include drivers, passengers and pedestrians, but not an owner of the vehicle who is not physically present at the crash scene. d. A statement made before the investigating officer arrives at the crash scene is not covered by the AR privilege. e. The statement does not need to be confidential to be covered by the AR privilege. f. The AR privilege does not apply to physical observations made by the investigating officer at the crash scene. g. The AR privilege does not apply to the results of breath tests, blood tests, urine tests or field sobriety exercises--- not statements. h. The investigating officer can not assert the privilege on his/her behalf; the privilege belongs to persons involved in the accident. i. The AR is not admissible for impeachment unless the opposing party uses it to refresh the recollection of a witness. j. The AR privilege is waived if a timely objection is not made. k. In criminal cases, the investigating officer must “change hats” and tell the person that the accident investigation has concluded; the LEO must then read Miranda rights and obtain a waiver before the suspect’s statements can be used at the criminal trial. |
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PRIVILEGES F. Generalrules for privileges in Chapter 90, |
1. The judgedetermines whether a privilege exists and whether an exception applies 2. Only the holder of the privilege canproperly assert the privilege; a privilege can be asserted on behalf of theholder by an attorney, a guardian of the holder or the person to whom theholder communicated the privileged matter, i.e., psychotherapist. 3. A party (plaintiff/defendant) mayproperly appeal an incorrect ruling disallowing a privilege only if the partyis the holder of the privilege. 4. A party (plaintiff/defendant) mayproperly appeal an incorrect ruling allowing a privilege if the court excludesmaterial evidence that should have been admitted. 5. The burden of proof is on the personasserting a privilege to establish the elements of the privilege; the burden ofproof is on the person alleging an exception to prove that the exceptionapplies. 6. If the court has made a definitive ruling onthe record admitting or excluding evidence, either at or before trial, a partyis not required to renew an objection or make an offer of proof topreserve the claim of error for appeal. |
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PRIVILEGES G. Attorney/Lawyer--Client (A/C) Privilege --- F.S. 90.502 |
1. A clienthas a privilege to refuse to disclose and prevent others from disclosingconfidential communications made between the client and the attorney or anyperson employed by the attorney for the purpose of assisting the attorney torender legal services to the client. 2. Definition of lawyer --- any person that theclient reasonably believes is licensed to practice law in any state or nation;does not have to be member of the Florida Bar 3. The A/C privilege applies to any person “employed”by the lawyer, including but not limited to legal assistants, receptionists,experts, investigators and interpreters. 4. The A/C privilege belongs to the client andcan be asserted by the client, and by his/her lawyer, guardian or personal representative. 5. If a corporation is the client, the A/Cprivilege applies to the officers, directors or managing agents of thecorporation. The A/C privilege appliesto confidential communication between the corporation’s attorney and a regularemployee only if (1) the employee communicates with the attorney at thedirection of a corporate superior AND(2) the communication reasonably relates to the employees’ duties on behalf ofthe corporation. 6. “Confidential” means the communication isnot intended to be disclosed to third persons. 7. “Communication” means an oral, or written,communication or a physical act intended as a communication. 8. Exceptions to the A/C privilege a. Crime/fraud exception --- Client seeksadvice to assist in the commission of an ongoing/future crime or fraud. b. Action between beneficiaries claiming throughthe same deceased client; however, the A/C privilege still applies when a thirdperson who is not a beneficiary brings a lawsuit against the estate ofthe deceased client. c. Dispute between attorney and the client;attorney sues for fees or client sues for malpractice; bar disciplinaryproceedings initiated by client. d. Attorney is an attesting witness to adocument signed by the client when the issue is competence or intent. e. When two or more clients consult an attorneyabout a matter of common interest and then later sue each other over the matterof common interest 9. The A/C privilege does apply in childabuse/neglect proceedings. |
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PRIVILEGES H. Attorney work product privilege |
1. AttorneyFact Work Product --- documents or tangible items prepared by the attorney inanticipation of litigation --- attorney has a qualified privilege torefuse to disclose fact work product unless the opposing party can show asubstantial need for the information and the inability to obtain it any otherway without undue hardship. 2. Attorney Opinion Work Product --- theattorney’s opinions, mental impressions, legal theories, etc. --- rough draft ofopening or closing. The attorney has anabsolute privilege to refuse to disclose opinion work product. |
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PRIVILEGES I. Psychotherapist-Patient Privilege --- F.S. 90.503ge |
1. A patienthas a privilege to refuse to disclose and prevent others from disclosing confidentialcommunications or records made for the diagnosis or treatment of amental/emotional condition between himself and the psychotherapist or anypersons participating in the diagnosis or treatment under the direction of apsychotherapist. 2. Definition of psychotherapist --- any personwho the patient reasonably believes is licensed to practice medicine and who isengaged in the diagnosis or treatment of a mental or emotional condition. The definition of psychotherapist alsoincludes a licensed psychologist who is diagnosing or treating a mental oremotional condition. The Evidence Codehas been amended several times since its adoption to include other counselorsand therapists within the definition of psychotherapist. 3. In Florida, there is nophysician-patient privilege; there never has been a physician-patient privilegein Florida. However, a physician canmeet the definition of a psychotherapist if the physician is diagnosing ortreating a mental or emotional condition. 4. The psychotherapist-patient privilegeclearly applies to group therapy. Apatient can prevent any member of the group from disclosing any statement madeby the patient as long as the group is under the supervision/direction of apsychotherapist. 5. Exceptions to the psychotherapist-patientprivilege a. Proceedings to compel the involuntaryhospitalization of the patient (Baker Act) if the psychotherapist reasonablybelieves the patient is dangerous to himself or others. b. If the court orders an evaluation of thepatient’s mental or emotional condition. c. If the patient places his mental oremotional condition at issue by making it an element of a claim or defense. d. The privilege does not apply in childabuse/neglect proceedings or proceedings involving the abuse or neglect of theelderly or disabled. 6. Duty to Warn --- If a patient has made anactual threat to physically harm an identifiable victim(s) and thepsychotherapist reasonably believes that the patient is likely to carry out thethreat, the psychotherapist has a duty to warn the potential victim(s) or tonotify law enforcement authorities. HOWEVER, the evidentiary privilege in court still applies. The psychotherapist may disclose patientcommunications to the extent necessary to warn the victims or notify LEO. See F.S. 456.059 and F.S. 490.147. 7. If a patient discloses his intention tocommit a future crime to his psychotherapist, the privilege will generallystill apply unless the future crime involves a child, disabled person or anelderly person. Even though there is aduty to warn if the future crime involves physical violence, the evidentiaryprivilege still generally applies. 8. Psychotherapist-patient privilege belongs tothe patient and can be asserted by the patient, his/her psychotherapist,his/her lawyer or the guardian or personal representative of the patient. |
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PRIVILEGES J. Clergy Privilege --- F.S. 90.505 |
1. A personcan refuse to disclose and prevent others from disclosing confidentialcommunications made to a member of the clergy if made privately for the purposeof seeking spiritual advice. 2. Clergy --- priest, minister, rabbi or imamor other head of an organized religion 3. Confidential --- depends on the regularpractice of the particular religion 4. There are no exceptions to the clergyprivilege. 5. There may be a duty to warn as there is forpsychotherapists. Since there is nostatute and little case law, this will not be on the test. 6. The clergy privilege is for the benefit ofthe person seeking spiritual advice and can be asserted by the person, clergymember, person’s lawyer or guardian or personal representative of the person.torate |
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PRIVILEGES K. Husband/Wife (H/W) Privilege --- F.S. 90.504 |
1. A spousehas a privilege to refuse to disclose and prevent others from disclosingconfidential communications between the spouses while they were married. 2. Each spouse holds the privilege. 3. The privilege can not be asserted by thepersonal representative of a deceased spouse; only the surviving spouse canassert the privilege. 4. There must be a valid marriage for theprivilege to apply. 5. A divorce will not affect the privilege; aconfidential communication made during the marriage will still be privileged. 6. The privilege applies to oral or writtencommunications and physical acts intended as a communication; if a spouseobserves a physical act by his/her spouse that is not intended as acommunication, the privilege does not apply. 7. Confidential --- not intended to bedisclosed to third persons 8. Exceptions to the H/W privilege: a. If one spouse sues the other spouse, i.e.,dissolution of marriage b. A spouse is charged with a crime against theperson or property of the other spouse or a child of either spouse. c. If a spouse is charged with a crime againsta third person (not his/her spouse or child of either), then only the spousewho is the defendant in the criminal case can assert the privilege; the otherspouse can not assert the privilege on his/her own behalf. d. Child abuse or neglect proceedings;proceedings involving abuse or neglect of the elderly or disabledw R |
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PRIVILEGES L. Accountant-Client Privilege --- F.S. 90.5055 |
1. A clientcan refuse to disclose and prevent others from disclosing confidentialcommunications between the client and the accountant and any person employed bythe accountant for the purpose of rendering accounting services to the client. 2. This privilege includes confidentialinformation given to the accountant by the client, i.e., books and records. 3. Exceptions to the accountant-clientprivilege: a. Crime/fraud exception --- Client seeksadvice to assist in committing a future crime or fraud. b. Dispute between the client and theaccountant c. Two or more clients consult the accountantabout a matter of common interest and then later sue each other over the matterof common interest. 4. There is no federal accountant-clientprivilege. a. Federal tax proceedings --- no privilege ---Florida or federal b. Bankruptcy proceedings --- no privilege ---Florida or federal |
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PRIVILEGES M. Journalist Privilege-` |
1. This is a qualifiedprivilege. 2. A professional journalist has a qualifiedprivilege not to be a witness and not to disclose information, includingsources, that the journalist obtained while actively gathering the news. a. The party objecting to the privilege mustshow that: (1) the information is relevant to material issues in the case, (2)there is a compelling interest requiring disclosure and (3) the informationcannot be obtained from other sources without undue hardship. b. Privilege applies to confidential andnonconfidential information and sources. c. The privilege applies in civil/criminalproceedings. d. Privilege does not apply toeyewitness observations of crimes or physical evidence, including recordings ofcrimes, i.e., CNN ---looting during Katrina/Fergusono aid |
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PRIVILEGES N. Waiver ofPrivileges --- F.S. 90.507 |
1. A privilegeis waived if the holder voluntarily discloses or consents to disclosure of thesubstance of the communication. 2. If the disclosure is covered by anotherprivilege, there is no waiver. 3. If disclosure is compelled erroneously bythe court or if the holder has no opportunity to claim the privilege, there isno waiver. 4. The privilege is waived unless a timelyobjection is made. |
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V. Relevancy--- F.S. 90.401-410 A. Definitions. |
1. Material--- Reasonably relates to one of the substantive issues to be decided by thetrier of fact at trial; credibility of witnesses is always material. 2. Relevant --- Evidence tends to proveor disprove a material fact. F.S.90.401. 3. Incompetent --- Evidence is materialand relevant, but not admissible because of a legal reason --- Constitution,statute or case law |
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RELEVANCY B. All relevant evidence is admissible, except |
All relevant evidence is admissible, except asprovided by law. F.S. 90.402. |
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RELEVANCY C. Relevant evidence is not admissibleif its? |
C. Relevantevidence is not admissible if its probative value is substantiallyoutweighed by the danger of unfair prejudice; also N/A if probativevalue is substantially outweighed by the danger that the evidence will confuseor mislead the jury or if the evidence is cumulative. F.S. 90.403.
1. Examples--- DUI case in which a trace amount of cocaine is found in urine test 2. Gruesome photographs |
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RELEVANCY D. Miscellaneous Relevance Issues |
1. Liabilityinsurance --- Evidence that a person has liability insurance is N/A to provenegligence; however, such evidence is admissible to prove: a. Ownership or control of the premises onwhich an injury occurred b. Impeachment --- A witness to whom astatement was made works for the defendant’s insurance company and thereforemay be biased. c. Liability insurance is part of an admissionby the defendant; after an accident, defendant says: “I am so sorry. Don’tworry; my insurance will take care of this.” 2. Subsequent remedial measures --- F.S. 90.407--- Evidence of subsequent repairs or other precautionary measures madefollowing an accident are N/A to prove negligence or culpable conduct; however,such evidence is admissible to prove: a. Ownership or control of the premises wherethe accident occurred b. Impeachment --- Opposing party destroyedevidence by making repairs and then lied about the matter. c. Rebut the claim that further precaution wasnot possible. 3. Compromises/offers to compromise in civilcases --- F.S. 90.408. a. An offer to compromise a claim that isdisputed as to validity or amount and any statements made in connection withthe offer are N/A to prove liability or absence of liability. b. However, statements made during settlementnegotiations are admissible at trial for impeachment. c. Evidence of furnishing or offering to paymedical/hospital expenses is N/A to prove liability. F.S. 90.409. d. The claim must be disputed as to validity oramount. 4. Plea negotiations --- F.S. 90.410 a. Evidence of an offer to plead guilty or nolo contendre or a guilty plea or no lo contendre plea that is later withdrawn isN/A for any purpose in a civil or criminal proceeding. b. Statements made in connection with pleanegotiations are N/A at trial to prove guilt or innocence or for impeachment;however, such statements are admissible in a separate prosecution for perjury. |
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Cheat |
4. Plea negotiations --- F.S. 90.410a. Evidence of an offer to plead guilty or nolo contendre or a guilty plea or no lo contendre plea that is later withdrawn isN/A for any purpose in a civil or criminal proceeding.b. Statements made in connection with pleanegotiations are N/A at trial to prove guilt or innocence or for impeachment;however, such statements are admissible in a separate prosecution for perjury. A/C Exceptions - Client seeksadvice to assist in the commission of an ongoing/future crime or fraud. b. Action between beneficiaries claiming throughthe same deceased client; however, the A/C privilege still applies when a thirdperson who is not a beneficiary brings a lawsuit against the estate ofthe deceased client. c. Dispute between attorney and the client;attorney sues for fees or client sues for malpractice; bar disciplinaryproceedings initiated by client. d. Attorney is an attesting witness to adocument signed by the client when the issue is competence or intent. e. When two or more clients consult an attorneyabout a matter of common interest and then later sue each other over the matterof common interest 2. Subsequent remedial measures --- F.S. 90.407--- Evidence of subsequent repairs or other precautionary measures madefollowing an accident are N/A to prove negligence or culpable conduct; however,such evidence is admissible to prove:a. Ownership or control of the premises wherethe accident occurred b. Impeachment --- Opposing party destroyedevidence by making repairs and then lied about the matter. c. Rebut the claim that further precaution wasnot possible. C. Relevantevidence is not admissible if its probative value is substantiallyoutweighed by the danger of unfair prejudice; also N/A if probativevalue is substantially outweighed by the danger that the evidence will confuseor mislead the jury or if the evidence is cumulative. F.S. 90.403.1. Examples--- DUI case in which a trace amount of cocaine is found in urine test2. Gruesome photographs The A/C privilege appliesto confidential communication between the corporation’s attorney and a regularemployee only if (1) the employee communicates with the attorney at thedirection of a corporate superior AND(2) the communication reasonably relates to the employees’ duties on behalf ofthe corporation. |
