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114 Cards in this Set
- Front
- Back
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Relevance - Habit
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In FL, 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
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Relevance - Habit Evidence - Spousal Abuse
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Former instances of spousal abuse may be admissible when a defendant relies on battered spouse syndrome as a defense
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Relevance - Sex Offender Profile
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FL courts have held that a pedophile/child sex offender profile is NOT admissible in a criminal trial
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Relevance - Public Policy Exclusions
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(1) collateral source evidence, generally
(2) expressions of sympathy |
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Relevancy - Public Policy Exclusions - Collateral Source Evidence
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Evidence of payments from collateral sources, such as an insurance policy providing payments for medical or hospital expenses or property damages wholly independent of a defendant tortfeasor, is generally INadmissible as a matter of public policy
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Relevancy - Public Policy Exclusions - Expressions of Sympathy Inadmissible
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In a FL civil case, that portion of a statement, writing, or benevolent gesture that expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or the family of that person is INadmissible in evidence
However, a statement of fault that is part of, or in addition to, any of the above WILL be admissible in evidence |
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Character Evidence - Opinion Testimony
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FL does NOT allow opinion testimony to prove character
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How Defendant Proves Character
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FL limits witnesses to reputation evidence to prove the defendant's character (NO opinion evidence)
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How Prosecution Rebuts Defendant's Character Evidence
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Witnesses may testiofy to the defendnat's bad reputation, but they may NOT give their own opinion of the defendant's character
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Character of the Victim
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CanNOT be proven by opinion testimony
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Character of Victim - Prosecution's Rebuttal
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In FL, the prosecution can rebut the defendant's bad character evidnee of the victim ONLY with reputation evidence of the victim's good character for the same trait
The prosecution may NOT rebut with opinion testimony concerning the victim's good character or with any evidence concerning the defendant's bad character for the same trait |
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Rape Victim's Past Behavior - Generally
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Evidence of a prior consensual relationship between the victim and persons OTHER THAN defendant MAY be admitted IF the defense demonstrates to the court in an in camera proceeding that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease OR when consent by the victim is at issue, such evidence MAY be admitted if the defense demonstrates to the court in an in camera review proceeding that such evidence tends to establish a pattern of conduct or behavior on the part of the victim so similar to the conduct or behavior in the case that it is relevant to the issue of consent
Notwithstanding other provisions of law, reputation evidence relating to a victim's prior sexual conduct shall NOT be admitted into evidence in sexual battery prosecutions ALSO APPLIES to prosecutions for sexual activity with a child by or at the solicitation of a person in familial or custodial authority |
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Rape Victim's Past Behavior - Manner of Dress
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in sexual battery prosecutions, evidnece presented for the purpose of showing that the victim's manner of dress at the time of the offense incited the sexual battery is NOT admissible
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Rape Victim's Past Behavior - Voluntary Entry into Defendant's House
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in sexual battery prosecutions where consent of the victim is a defense, evidence that the victim voluntarily entered the defendant's house is NOT admissible
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Rape Victim's Past Behavior - Mental Incapacity or Defect
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in sexual battery prosecutions where consent of the victim is a defense, evidence of the victim's mental incapacity or defect IS admissible to prove that the consent was not intelligent, knowing, or voluntary
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Rape Victim's Past Behavior - Use of Prophylactic
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an offender's use of a prophylactic device, or a victim's request that an offender use one, is NOT, by ITSELF, relevant to either the issue of whether the offense was committed or whether the victim consented
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Specific Acts of Misconduct - Generally
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admissible IF independently relevant AND the state gives 10 days' notice of intent to use other crimes or acts evidence
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Specific Acts of Misconduct - Examples and Requirements
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similar act evidence IS admissible when relevant to prove a material fact such as:
Motive Opportunity Intent Preparation Plan Knowledge Identity Absence of Mistake or Accident REQUIREMENTS: to be admissible, the similar acts must be STRIKINGLY SIMILAR and share some UNIQUE CHARACTERISTIC or combination of characteristics that set them apart |
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Specific Acts of Misconduct - Prior Acts of Child Molestation
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in a criminal case in which the defendant is charged with a crime involved child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation IS admissible, and MAY be considered for its bearing on any matter to which it is relevant
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Judicial Notice - Appropriate Facts
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a court MAY, upon being furnished with sufficient information, take judicial notice of any matter of
--indisputable facts that are either matters of common knowledge in the community (notorious facts) OR --facts capabale of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts) IF a party requests it AND provies EACH adverse party timely written notice of the request |
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Judicial Notice - Conclusiveness
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the court has the discretion to determine whether judicial notice of a fact is conclusive
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Judicial Notice of Law - Mandatory (4)
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court SHALL take judicial notice of:
(1) decisional, constitutional, and public statutory law and resolutions of the FL Legislature and Congress of the US (2) ordinanaces and municipal and county charters, the enforcement of which is within the jurisdiction of the court (3) FL rules of court that have statewide application, its own rules, and the rules of the US courts adopted by the USSC (4) rules of court of the USSC and of the US Courts of Appeal |
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Judicial Notice of Law - Permissive (13)
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courts MAY take judicial notice of:
(1) special, local, and private acts and resolutions of the US Congress and the FL Legislature (2) decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the US (3) contents of the Federal Register (4) laws of foreign nations and of an organization of nations (5) official actions of the legislative, executive, and judicial departments of the US and of any state, territory, or jurisdiction of teh US (6) records of any court of this state or of any court of record of the US or of any state, territory, or jurisdiction of the US (7) rules of court of any court of this state or of any court of record of the US or of any other state, territory, or jurisdiction of the US (8) provisions of all municipal and county charters and charter amendments of theis state, provided they are available in printed copies or as certified copies, (9) rules promulgated by the governmental agencies of this state which are published in the FL Admin Code or in bound written copies (10) duly enacted ordinances and resolutions of minucipalities and counties located in FL, provided such ordinances and resolutions are available in printed copies or as certified copies (11) facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court (12) 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 (13) official seals of governmental agencies and departments of the US and of any state, territory, or jurisdiction of the US |
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Judicial Notice - Notorious Facts
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Facts of Common Knowledge in the Community
those facts that well-informed persons generally know and accept...though usually facts of common knowledge are known everywhere, it is sufficient for judicial notice if they are known in the community where the court is sitting |
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Judicial Notice - Examples of Notorious Facts
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A court sitting in NYC will take judicial notice that:
(1) streets in Manhattan are numbered easy and west from 5th ave and that odd numbers are on the north side of the street (2) many people are subject to low blood pressure or poor circulation (3) the ordinary period of human gestation is 280 days |
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Judicial Notice - Manifest Facts
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some facts, while NOT generally known and accepted, are eaily verified by resorting to easily accessible, well-established sources
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Judicial Notice - Examples of Manifest Facts
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(1) judicial notice will be taken of the time of the rising or setting of the sun and moon on a particular day since this fact, although not commonly known, can be estimated quickly and accurately by reference to an almanac
(2) the court will accept without proof that February 14, 1999, was a Sunday by reference to a calendar |
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Additional Type of Real Proof - New or Novel Scientific Evidence
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governed by the Frye test, so the 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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Additional Type of Real Proof - New or Novel Scientific Evidence - DNA Evidence
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DNA evidence has been held admissible in FL using the Frye standard
HOWEVER, FL courts ALSO REQUIRE the laboratory testing the DNA follow procedures that also meet the Frye standard to safeguard against false readings and contamination |
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Additional Form of Examination of Witnesses - Use of Hypnosis
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FL has separated post-hypnotic testimony into two categories:
(1) testimony based on independent recollection (2) hypnotically refreshed testimony |
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Use of Hypnosis - Testimony Based on Independent Recollection
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when a witness provides a description of a suspect at the time of the crime, the information elicited from a subsequent hypnotic session is consistent with that previous description, and the witness testifies in court based on an independent recollection of the event, the testimony IS admissible
the fact that hypnosis took place goes to the weight, not the admissibility, of the testimony |
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Use of Hypnosis - Hypnotically Refreshed Testimony
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testimony basd on a memory refreshed or enhanced through hypnosis is INadmissible per se in a criminal trial
a witness canNOT testify to any new matter discovered through hypnosis hypnosis DOES NOT render a witness incompetent to testify to a fact recalled prior to hypnosis IF the fact is property recorded |
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Opinion Testimony - Lay Witnesses
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the Code adopts MORE RESTRICTIVE view of the admissibility of opinions of lay witnesses
admissible when: (1) the witness 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, (2) the testimony will NOT mislead the trier of fact, AND (3) the opinions do NOT require special knowledge or training |
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Opinion Testimony - Expert Witnesses - Appropriate Subject Matter
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to admit expert opinion testimony of a new scientific principle, the trial judge must determine whether:
(1) the expert testimony will assist the jury in understanding the evidence, (2) the expert testimony is based on a scientific principle or discovery that is sufficiently established to have gained general acceptance in the particular field (Frye test), AND (3) the expert is qualified to present opinion evidence on the subject IF ALLOWED: the jury determines the credibility of the expert's opinion, which it is free to accept or reject |
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Opinion Testimony - Expert Witnesses - Opinion Supported by Proper Factual Basis - Facts Made Known to Expert at Trial
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if the court does not require a hypothetical question to be asked, the opposing party IS permitted to conduct a voir dire examination of the witness to determine whether there is sufficient basis for the opinion
IF a sufficient basis for the expert's opinion canNOT be established, the opinion is INadmissible |
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Opinion Testimony - Expert Witnesses - Authoritative Texts and Treatises
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authoritative publications can ONLY be usd DURING CROSS-EXAMINATION of an expert
excerpts from the publication may NOT be read into the record as substantive evidence the publication canNOT be used to bolster the expert's credibility |
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Prior Inconsistent Statements - Laying a Foundation |
a prior statement that is written must be shown to the witness who wrote it before he can be examined about it
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Conviction of a Crime - Generally |
actual CONVICTION required
a defendant or other witness may NOT be impeached with evidence of a prior guilty plea or guilty verdict IF the trial court in that case WITHHELD ADJUDICATION OF GUILT or did not enter a final judgment of conviction EXAMPLE: the trial court may have placed the defendant on probation |
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Conviction of a Crime - Types of Crimes |
to be used for impeachment, a conviction must be for a felony OR misdemeanor INVOLVING dishonesty or false statement
UNLIKE the Federal Rules, FL does NOT require the trial court to balance the probative value of a felony conviction not involving dishonesty or false statement against unfair prejudice |
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Conviction of a Crime - Remoteness |
INadmissible in a civil case if it is "so remotein time as to have no breaing on the prsent character of the witness"
the Code does NOT set a definite time period by which to judge the remoteness of a conviction (NO 10 YEAR CUTOFF) Note: does NOT apply to exclude remote convictions in criminal cases HOWEVER a party in a crimianl case seeking to exclude a conviction on remoteness grounds MAY use this rule and argue that the conviction is so old that its probative value is substantially outweighed by the danger of unfair prejudice |
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Conviction of a Crime - Juvenile Offenses |
juvenile offenses are INadmissible
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Conviction of a Crime - Effect of a Pardon |
a conviction is admissible, even though the witness has been pardoned
HOWEVER, evidence of the pardon IS admissible to rehabilitate the witness |
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Specific Instances of Misconduct - Bad Acts |
a witness may NOT be asked about prior SPECIFIC acts of misconduct for which she was NOT convicted
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Opinion or Reputation Evidence for Truthfulness |
character may NOT be proved by opinion testimony
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Impeachment Methods - Cross-Examination and Extrinsic Evidence
Sensory Deficiencies - Defects of Capacity - Drug or Alcohol Use |
a witness' prior drug or alcohol use, other than at the time of trial or incident described, IS admissible for impeachment purposes where it is expressly shown by other relevant evidence that the prior use affects the witness' ability to observe, remember, or recount
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Credibility - Impeachment
Impeachment on a Collateral Matter |
an adverse party MAY be able to introduce extrinsic evidence to impeach a witness' testimony EVEN IF the impeachment concerns a collateral matter
EXAMPLE: P sues D for neligence arising out of car accident. while testifying on direct examination, D states that before the accident she had attended her morning Math and English classes at the local community college. although D's having attended her morning classes had nothing to do with her liability in the case, P was allowed to call D's English professor to testify that D was absent from class on the morning of the accident. |
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Credibility - Impeachment
Rehabilitation - Good Reputation for Truthfulness |
an impeached witness MAY call other witnesses to testify to his good reputation for truthfulness, but he may NOT call other witnesses to give their opinions as to his truthfulness
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Objections, Exceptions, and Offers of Proof
Objections - Specificity of Objections |
FL law REQUIRES that the specific ground for the objections be given IF it is not apparent from the context of the questioning
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Objections, Exceptions, and Offers of Proof
Exceptions |
FL follows the majority view that a party does NOT ned to renew an objection or offer of proof to preserve an issue for appeal
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Objections, Exceptions, and Offers of Proof
Offers of Proof |
an offer of proof is generally required UNLESS the substance of the evidence is apparent from the context of the questioning
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Testimonial Privileges
Attorney-Client Privilege & child support enforcement program |
communications may be a person who seeks or receives services from the FL Dept of Health and Rehab Services under the child support enforcement program to the attorney representing the Dept ARE protected by the attorney-client privilege
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Testimonial Privileges
Attorney-Client Relationship: Corporation as Client (5) |
communications between a corporate employee and the corporation's attoney ARE protected by the attorney-client privilege IF:
(1) the communication would not have been made but for the contemplation of legal services (2) the employee making the communication did so at the direction of a corporate superior (3) the superior made the request of teh employee as part of the corporation's efforts to secure legal services or advice (4) the content o fthe communication relates to the legal services being rendered and the subject matter of the communication is within the scope of the employee's duties, AND (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents |
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Testimonial Privileges
Attorney-Client Relationship: Nonapplicability of the Privilege (2 additional) |
FL has two ADDITIONAL exceptions to the attorney client privilege:
(1) Public Records Act (2) Sunshine Law |
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Testimonial Privileges
Attorney-Client Relationship: Nonapplicability of the Privilege - Public Records Act |
FL law mandates that ALL public records shall be available for inspection
the attorney-client privilege generally does NOT exempt written communications between an attorney and a public entity client EXCEPTION: a public record prepared by or through an agency attorney reflecting a mental impression, conclusion, litigation strategy, or legal theory, and which was prepared for litigation is exempt from disclosure until the conclusion of the litigation |
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Testimonial Privileges
Attorney-Client Relationship: Nonapplicability of the Privilege - Sunshine Law |
agency meetings of public officials MUST be open to the public
communications between officials and agency attorneys made at such meetings are NOT confidential PRIVATE meetings between officials and agency attorneys to discuss matters of pending litigation ARE allowed...BUT these meetings must be recorrded by a court reporter, and a transcript of the meetings must be made part of the public record on the conclusion of the litigation |
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Testimonial Privileges
Physician-Patient Privilege - Generally |
does NOT recognize a separate physician-patient privilege...patient records may NOT be furnished to, and the medical condition of a patient may NOT be discussed with, any person without the patient's written authorization EXCEPT in certain limited circumstances
does NOT create an evidentiary privilege between physicial and patient, but merely recognizes the confidentiality of such information outside judicial proceedings in any civil or criminal action, patient records MUST be furnished when compelled by subpoena from a court of competent jurisdiction after proper notice to the patient or the patient's legal representative by the party seeking such records |
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Testimonial Privileges
Physician-Patient Privilege - Criminal Proceedings |
FL law has NOT addressed the applicability of the physician-patient privilege to criminal proceedings
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Testimonial Privileges
Psychotherapist/Social Worker-Client Privilege |
privilege for confidential communications between a patient and a psychotherapist for the purpose of diagnosis of a mental or emotional condition (including alcoholiam and other drug addictions)
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Testimonial Privileges
Psychotherapist - Definition |
psychotherapist is defined as:
(1) a licensed or certified psychologist, (2) a person licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under FL law, (3) a person authorized to practice medicine (4) treatment personnel of licensed facilities engaged primarily in diagnosis or treatment of mental or emotional conditions, AND (5) advanced registered nurse practitioner whose primary scope of practice is diagnosis or treatment of mental or emotional conditions |
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Testimonial Privileges
Husband-Wife Privilege |
privilege for confidential communciations made between spouses DURING the course of a valid marriage
it does NOT recognize the doctrine of spousal immunity |
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Testimonial Privileges
Clergy-Penitent Privilege |
a confidential communication between a person and a cleric made privately for the purpose of seeking spiritual counsel and advice in the usual course of practice is privileged
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Testimonial Privileges
Accountant-Client Privilege |
the accountant-client privilege protects information and communications a CPA or licensed public accountant obtains from a client that relate to the client's business affairs
it is similar to the attorney-client privilege |
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Testimonial Privileges
Professional Journalist Privilege - Generally |
professional journalist has a QUALIFIED privilege not to divulge information (or the identity of any source) that the journalist obtained while actively gathering news
does NOT apply to physical evidence, eyewitness observations, or visual or audio recordings of crimes |
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Testimonial Privileges
Professional Journalist Privilege - Overcoming |
a party may overcome the privilege by showing that:
(1) the information is relevant and material to unresolved issues in the proceeding for which the information is sought (2) the information cannot be ontained from alternative sources, and (3) a compelling state interest exists requiring disclosure A journalist does NOT waive this privilege by publishing or broadcasting some of the information at issue |
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Testimonial Privileges
Accident Report Privilege |
privilege for written reports made by persons involved in motor vehicle accidents
such reports are for the confidential use of the Dept of Hwy Safety and are NOT admissible in either a criminal or civil trial that arises out of the accident STATEMENTS made to a law enforceent officer for the purpose of completing the report are ALSO included within the privilege, EXCEPT that at a CRIMINAL tral, an officer may testify to any statemnet 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 breath, 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 (they are NOT communication privileged under the accident report privilege) |
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Testimonial Privileges
Sexual Assault Counselor/Trained Volunteer-Victim Privilege - Generally |
privilege for confidential communications between a sexual assault counselor or trained volunteer and a sexual assault victim
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Testimonial Privileges
Sexual Assault Counselor/Trained Volunteer-Victim Privilege Confidential Communication |
communciation between a sexual assualt counselor or trained volunteer and a victim is "confidential" IF it is NOT intended to be disclosed to 3rd persons OTHER THAN:
(1) those persons present to further the interest of the victim in the consultation, examination, or interview (2) those persons necessary for the transmission of the communication, OR (3) those persons to whom disclosure is reasonably necessary to accomplish the purposes for which the sexual assault counselor or trained volunteer is consulted |
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Testimonial Privileges
Sexual Assault Counselor/Trained Volunteer-Victim Privilege Counselor or Trained Volunteer |
Counselor: an employee of a rape crisis center whose primary purpose is advisins, counseling, or assisting victims of sexual assault or sexual battery
Trained Volunteer: a person who: (1) volunteers at a rape crisiscenter, (2) completed 30 hours of training in assisting victims of sexual violence and related topics provided by the rape crisis center, (3) is supervised by members of the staff of the rape crisis center, AND (4) is included on a list of volunteers that is maintained by the rape crisis center NOTE: with the exception of teh attorney-client privilege and the cleric privilege, none of the recognized privileges applies to a situation involving known or suspected abuse, neglect, or exploitation of children or aged or disabled persons |
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Testimonial Privileges
Domestic Violence Counselor-Victim Privilege |
confidential communications concerning an incident of domestic violence by a victim of domestic violence to any registered domestic violence advocate who has 30 hours of training and works at a program for victims of domestic violence is privileged
to be privileged, the communication must NOT be intended to be disclosed to 3rd parties other than for domestic violence assistance purposes |
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Exclusion and Sequestration of Witnesses
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a witness in a criminal case may NOT be exlcluded from the courtroom if he 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, the court determines such person's presence to be prejudicial
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Hearsay - Statements that are Nonhearsay
Prior Statement of Identification |
a victim's DESCRIPTION of her assailant to a third party is NOT an "identification" of a person after perceiving him, and thus it will NOT be admissible at trial by the third party as nonhearsay prioer statement of identification
Note: the victim's description of her asailant to the third party MAY be testifyied to at trial by the third party and admitted for its truth if it falls under a hearsay exception |
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Hearsay - Statements that are Nonhearsay
Admissions by Party-Opponent |
admissions ARE treated as an exception to the hearsay rule rather than as nonhearsay
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Hearsay - Statements that are Nonhearsay
Vicarious Admissions - Co-Conspirators |
hearday statments of a co-conspirator are INadmissible to prove participation of another co-conspirator in the conspiracy
upon request of counsel, the court MUST instruct the jury that the conspiracy (and each member's participation therein) MUST be established by independent evidence |
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Hearsay Exceptions - Declarant Unavailable
Former Testimony |
FL's hearsay exception for former testimony in a CRIMINAL proceeding REQUIRES that the witness be unavailable
unavailability is NOT REQUIRED for CIVIL proceedings (note: this has been held unconstitutional) |
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Hearsay Exceptions - Declarant Unavailable
Dying Declarations - Statements Under Belief of Impending Death |
dying declarations ARE admissible in ALL civil and criminal cases
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Hearsay Exceptions - Declarant Unavailable
Statement by Deceased or Ill Declarant Similar to Statement Previously Admitted |
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 decause of death or illness, an oral or written statement made by the declarant is admissible IF it involves the same subject matter as a previosuly admitted statement made by the same declarant
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Hearsay Exceptions - Declarant's Availability Immaterial
Declarations of Physical Condition - Child Sex Abuse Victims |
statements of a victim of child sexual abuse identifying the perpetrator to medical personnel are NOT admissible under the hearsay exception for statements made for the purposes of medical diagnosis and treatment
such statements ARE controlled by the special hearsay exception for children's out-of-court statements about abuse |
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Hearsay Exceptions - Declarant's Availability Immaterial
Business Records - Foreign Records of Regularly Conducted Business |
in a criminal proceeding, a foreign record of a regularly conducted business activity will NOT be excluded from evidene by the hearsay rule IF:
(1) the record was made in teh regular couse of business, (2) the business made the record as a regular practice, (3) the record was made contemporaneously with the matters set forth therein, AND (4) the record is a copy of the original |
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Hearsay Exceptions - Declarant's Availability Immaterial
Official Records and Other Official Writings - Public Records and Reports |
factual findings resulting from legally authorized investigations are NOT admissible
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Hearsay Exceptions - Declarant's Availability Immaterial
Official Records and Other Official Writings - Judgments - Prior Criminal Conviction not Admissible |
the Code does NOT recognize an exception for criminal convictions (they are NOT admissible as substantive evidence)
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Hearsay Exceptions - Declarant's Availability Immaterial
Official Records and Other Official Writings - Learned Treatises |
there is NO exception to the hearsay rule for learned treatises
they ARE admissible ONLY to attack the credibility of an expert once they have been established as authoritative there is NO requirement that the expert rely upon them in forming her opinion |
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Hearsay Exceptions - Declarant's Availability Immaterial
Child Victim of Abuse, Neglect, or Sexual Abuse |
hearsay statements of a victim with a physical, mental, emotional, or developmental age of 11 or less, describing ANY act of child abuse, neglect, or sexual abuse, not otherwise admissible, may be admitted nonetheless
ADMITTED IF: (1) the time, content, and circumstnaces of the statement provide sufficient safeguards of reliability, AND (2) the child either testifies or is unavailable as a witness IF the hearsay statement is sufficiently reliable, it IS admissible EVEN IF the child's testimony contradcits the earlier hearsay statement a videotape of the child's testimony MAY satisfy the requirement that the child testify |
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Hearsay Exceptions - Declarant's Availability Immaterial
Child Victim of Abuse, Neglect, or Sexual Abuse Unavailability |
a finding that the child is incompetent to testify because, for example, the child is incapable of understanding the duty to tell the truth or is incapable of expressing himself so as to be understood will satisfy the unavailability requirement
if the child is unavailable to testify, there MUST be particularly trustworthy corroborative evidence of the crime |
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Hearsay Exceptions - Declarant's Availability Immaterial
Child Victim of Abuse, Neglect, or Sexual Abuse Notice |
in a criminal action, the defendant MUST be given notice NO LATER THAN 10 DAYS prior to trial that such a statement will be offered as evidence at trial, together with full disclosure of teh content of the statement and teh time when it was made
Note: neither the FLSC nor the USSC has ruled on the constitutionality of this |
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Hearsay Exceptions - Declarant's Availability Immaterial
Statements of Abused Elderly or Disabled Adult |
there is a hearsay exception for hte out-of-court statements of elderly or disabled adults describing acts of abuse, neglect, assault, battery, or any violent act committed against them
for the statements to be admissible, the declarant MUST EITHER testify OR be unavailable as a witness NOTE: held unconstitutional as to hearsay statements of elderly persons (doesnt meet the confrontation clause) with regard to nontestimonial statements of disabled adults: the court found the exception constitutional |
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Hearsay Exceptions - Declarant's Availability Immaterial
Statements of Abused Elderly or Disabled Adults - Things to Consider |
the trial court will need to consider factors including:
(1) the spontaneity of the statment (2) how the statment was elicited (3) the mental state of the declarant when the abuse was reported (4) how the declarant described the act (5) whether the declarant used terminology unespected of a similarly situated mentally disabled adult (6) the motive or lack thereof to fabricate the statement (7) the ability of the declarant to distinguish between reality and fantasy (8) the vagueness of the accusations (9) the possibilit of any improper influence on the declarant, AND (10) any contradictions in the accusation |
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Hearsay Exceptions - Residual "Catch All" Exception
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there is NO residual catch all exception in FL
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Procedural Considerations - Presumptions
Spoilation or Withholding Evidence |
if evidence is determined to have been INTENTIONALLY lost or destroyed, the trial court MAY rely on sanctions for discovery violations set forth in FRCP and the jury MAY infer that the records would have contained indications of negligence
if evidence is determined to have been NEGLIGENTLY lost or destroyed, there is a rebuttable presumption of negligence when the absence hinders the plaintiff's ability to establish a prima facie case there is NO independent cause of action for spoilation of evidence by a party |
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Presumptions
Summary of FL Presumption Law |
the Code recognizes both "bursting bubble" presumptions and presumptions which shift the buden of persuasion
it does NOT specify whether particular presumptions are treated as one type or another |
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Relationship of Parties, Judge, and Jury
Preliminary Determination of Admissibility - Judicial Power to Comment upon Evidence |
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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Prior Inconsistent Statements -What are they admissible as?
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impeachment only, not as substantial evidence
UNLESS from a prior trial |
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Is a guilty plea admissible?
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yes, as an admission
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To use a lay witness opinion, what must you establish?
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(1) witness connot readily communicate accurately when she perceived without stating an opinion
(2) opinion would not mislead jury (3) opinion does not require special training or knowledge |
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Is prior sexual conduct of the victim admissible?
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reputation evidence relating to prior sexual conduct of a victim of sexual battery may NOT be admitted into evidence in a prosecution for sexual battery
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Can a plea with a witness to testify falsely come in?
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Yes, as an admission by conduct of a party-opponent, which is an exception to the hearsay rule
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Accused's Prior Conviction
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when the accused denies a prior conviction, it may be proved by extrinsic evidence
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Accused's Character Evidence
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admissible
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When is a learned treatise admissible?
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only to attack the credibility of an expert once it has been established as authoritative (so the expert themself cannot bring it in during direct testimony)
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Excited Utterance - Identification of Speaker
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the statement itself can come in as an excited utterance, the person who originally made the statement need not be identified
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Specific Instances of Prior Sexual Conduct
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specific instances of prior sexual conduct between the victim and persons other than the defendant are admissble when the victim's consent is at issue, provided that the defendant 1st establishes to the court in an in camera proceeding that such evidence tends to estalish a pattern of conduct or behavior on teh part 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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Statements of Intoxication
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a witness who has seen a person and is able to describe that person's actions, words, or conduct may express an opinion as to whether that person was intoxicated
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When can the jury determine the genuineness of a writing?
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the jury can determine the genuineness of a writing by comparing the questioned writing with another writing PROVED (not just alleged) to be genuine
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Impeachment with Deposition - the Deposition comes in for??
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impeachment purposes AND substantive evidence
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Confessions to Clergy
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a person has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication by the person to a member of the clergy in the clergy memebr's capacity as a spiritual advisor
a member of the clergy can be a minister, priest, rabbi, or other similar functionary of a religios organization, or reasonaly believed to be so by the person consulting him |
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What happens when a witness uses a writing to refresh her memory on the stand?
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an adverse party is entitled to have the writing prouced at trial, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions that relate to the witness's testimony
if the witness has refreshed her memory before trial by looking at the writing, it is within the court's discretion to require production of the documents and to permit inspection, cross-examination, and introduction of pertinent excerpts |
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What happens when a witness uses notes from the event in question to refresh his memory?
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notes may he READ into evidence under teh past recollection recorded exception to the hearsay rule, but may NOT be admitted into evidence
a memo or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly, may be read to the jury under this exception to the hearsay rule a party may read into evidence such memo or record when it is admitted, but no such memo or record is admissible as an exhibit unless offered by an adverse party |
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Statements within an Affidavit
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cannot come in, as they are hearsay within hearsay without an exception
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Proving agency or authorization to act...
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the witness generally may not state a conclusion as to his authorization
rather, he must be asked by whom he was employed and the nature, terms, and surrounding circumstances of his employment |
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Can evidence of a victim's dress come in?
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evidence presented for the purpose of showing that the victim's manner of dress at the time of the offense incited the sexual battery is INadmissible
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Foundation to being in a videotape...
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prosecutor must establish:
(1) that the individual depicted inthe video probable was the defendant (2) that the video camera was working properly on that date, AND (3) that this particular videotape was the one used in the camera on that date, at the time the incident occurred |
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Best Evidence Rule does NOT apply when...
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the fact to be proved has an existence independent of any writing
Note: the fact of a divorce MUST be proven by the decree itself |
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Effect of a pardon on the admission of the conviction
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even though pardoned, the conviction is still admissible
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How can you obtain discovery from expert medical experts that were hired by the plaintiff but will not be testifying at trial?
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although discovery of all nonwitness expert testimony is not barred by the work product rule, it may be obtained only where the party seeking discovery 1st:
(1) obtains information about the expert through interrogatories directed to the party (2) and then can show exceptional circumstnaces under which it is impracticable to obtain facts or opinions on the same subject by other means |
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Can criminal conviction judgments come in?
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only for impeachment purposes, NOT for substantive evidence
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