Florida Bar- Evidence

Front 1

When must an objection be made?

Back 1

As soon as opposing atty reasonably knows valid grounds for an objection exist.

Front 2

When doesn't an objection have to state the precise legal ground on which it is based?

Back 2

When it is obvious from the context.

Front 3

Hearsay evidence which would be inadmissible at trial is admissible _______.

Back 3

before a judge hearing evidence on a preliminary question of fact such as compentency, qualification of witnesses, unavailability, or privilege by a preponderance of the evidence.

Front 4

What is the rule of completeness?

Back 4

The party that introduces one part of a conversation or document--whether or not the other parts are relevant-- has waived her right to object to the introduction of the rest of the conversation or document.

Front 5

A judicially noticed fact is one that is...

Back 5

not subject to reasonable dispute in that it is generally known within the locality or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. No contradictory evidence will be taken on it.

Front 6

Judicial Notice and the Jury

Back 6

A jury in a criminal case may- but is not required to- accept as conclusive any judicially noticed fact. A jury in a civil case will be told it must accept as conclusive any judicially noticed fact and no contradictory evidence is permitted on the issue. However- the judge has the discretion to give the jury a conclusive or permissive instruction and to decide whether to permit evidence in counterproof to the judicially noticed fact.

Front 7

In a criminal trial- what does the D need to be proved guilty of?

Back 7

Each element of the crime as well as absence of mitigating factors- beyond a reasonable doubt.

Front 8

What is a presumption

Back 8

A procedural device that shifts the burden of going forward to the opposing party. Upon intro of contrary evidence, the presumption disappears and the burden shifts to original party.

Front 9

Conclusive and Rebuttable Presumptions

Back 9

All presumptions are deemed rebuttable unless made conclusive under the law from which they arise. Whether a presumption shifts the burden of production or proof turns on the purpose for which the presumption was created. When the presumption was created out of procedural convenience and grounded in experience and not to further some public policy then it only shifts the burden of production. Alll other rebuttable presumptions shift the burden of persuasion to the party against whom they are directed.

Front 10

Can you prove character through opinion testimony in Florida

Back 10

Hell no! Only reputation evidence may be used.

Front 11

Evidence of a person's character is ______ to prove that he has acted _______/

Back 11

inadmissible to prove he acted in conformity with that character.

Front 12

Traits- opening doors- in criminal cases

Back 12

Prosecution may not initially show D's bad traits to make an inference that he is more likely to have committed the crime charged, the accused may introduce evidence of character traits inconsistent with the crime. But that opens the door and the prosecution may rebut that evidence.

Front 13

When is victim's character ok to bring in?

Back 13

When the asserted defense makes it relevant (such as vic's reputation for violence if D is claiming self-defense) When accused presents victim's character traits, the state may cross the reputation witness and may present its own witnesses.

Front 14

What are the rules about prior bad acts

Back 14

(Not in book- William's Rule) P may introduce circumstantial evidence of other crimes, wrongs, or acts for the very narrow purpose of proving: motive , opportunity, intent, preparation, plan, knowledge, identity , or absence of mistake or accident.

Front 15

Habit evidence

Back 15

A narrow range of probative traits- automatic, invariable paterns of behavior that could be characterized by the words "always" or "invariably". Regular response to a given situation that is done without a high degree of forethought. May be admitted if it corroborates other evidence that the party acted habitually on the occasion in question but may not be admitted as direct evidence of such action.

Front 16

Subsequent remedial measures

Back 16

Indadmissable to prove negligence, culpable conduct, product defect, or need for warning. BUT it may be admitted to prove ownership, control, feasibility of precautionary measures, or impeachment.

Front 17

Compromise and offers to compromise

Back 17

May not be used to prove liability or amount of claim- or impeachment through a prior inconsistent statement. It doesn't qualify as such until the other party has made a claim so that a dispute exists. It may be used to show a witness's bias or prejudice, negating a contention of undue delay, and proving an effort to obstruct a criminal investigation or prosecution.

Front 18

Offer to pay medical bills and admissions made in connection with offers to pay medical bills.

Back 18

Offers to pay med bills are not admissible to prove liability. Although ADMISSIONS made while offering to pay med bills and may be severed from the offer itself.

Front 19

Rape - Evid of prior conduct. --consent defense

Back 19

When consent is a defense, evidence of V's mental incapacity or defect is admissible to prove consent wasn't intelligent, knowing or voluntary- and the jury must be so instructed. Condoms aren't relevant to consent.

Front 20

Rape- evid of prior conduct. When is it admissible?

Back 20

1) to prove specific instances of sexual behavior by the alleged victim, if it offered to prove that a person other than the accused was the source of physical evidence.
2) to prove specific instances of sexual behavior by victim with the accused if offered by the accused to prove consent or by the prosecution
3) if the exclusion of the evidence would violate the constitutional rights of the defendant.

Front 21

Statements expressing sympathy

Back 21

Evidence of statements of benevolent gestures expressing sympathy to another relating to a person's pain, suffering, or death as a result of an accident, and made to that person or a rep of his family is inadmissible in a civil action.

Front 22

Atty Client Privilege-

Back 22

Client holds privilege to refuse to disclose confidential communications made for the purpose of legal services to the client. No 3rd persons can know about it. The privilege applies even if client reasonably believed random dude was an attorney and he was not. It also extends to paralegals, etc. No privilege exists if the lawyer was sought to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. No privilege for preexisting written docs merely because they are given to an atty (contracts leases memos)

Front 23

Physician/ Psychotherapist Privilege

Back 23

Patient holds priv. to refuse to disclose confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition. Includes drug treatment. Presence of 3rd party doesn't destroy privilege as long as they are there to further the patient's interests. The privilege is waived if patient puts his physical, mental or emotional condition at issue.

Front 24

FL medical records

Back 24

They are confidential but not protected by privilege and must be produced if subpoenaed.

Front 25

Marital Communications privilege.

Back 25

FL doesn't recognize spousal priv. Only Marital communications privilege. It protects confidential communications made during a legally valid marriage. It survives divorce. Both spouses hold the privilege. It works in both civil and criminal cases.

Front 26

Self incriminating statements- criminal cases

Back 26

Any statement made in plea discussions that doesn't result in a plea of guilty or results in a withdrawn plea is excluded. Withdrawn pleas are also excluded.

Front 27

Self Incriminating statements- generally

Back 27

The privilege applies only to testimonial evidence. Accused can be compelled to give writing, hair and blood samples, etc. Testimony given at a prelim hearing doesn't waive the privilege of the accused to take the stand at trial. The gov can compel testimony without jeopardizing the fifth amd by granting immunity from using the actual testimony of the witness and any evidence derived therefrom. (derivative use)

Front 28

Evidence at a preliminary hearing is...

Back 28

inadmissible at trial and the state can't comment on it

Front 29

Accountant Client Privilege?

Back 29

Fed courts nope- but FL provides a client with the privilege to refuse to disclose confidential communications with an accountant when made for the purposes of rendering accounting service.

Front 30

Automobile crash report privilege

Back 30

Accident reports or statements made at an accident scene to a police officer for the purposes of completing an accident report are privileged and may not be used as evidence at any trial. ALTHOUGH the LEO may testify at a CRIMINAL trial as to statements made as long as it doesn't violate the party's privilege against self-incrimination.

Front 31

What are all the other statutorily recognized privileges in florida?

Back 31

Journalists, sexual assault counselor/victim, DV advocate/victim, clergy, trade secrets

Front 32

When can a juror testify?

Back 32

1) as to whether extraneous prejudicial information was improperly brought to the jury,
2) When the jurors decide a case by lot or game- testimony is allowed to disclose such.
3) jurors may testify about attempts by other jurors to inappropriately appeal to race.
4) jurors can't expressly agree amongst themselves to decide the case a certain way based on agreement as opposed to the evidence and thus a juror may testify about such an agreement.

Front 33

Every person is competent to be a witness EXCEPT:

Back 33

1) a witness who would be incompetent under state law if state law controls
2) a witness who lacks personal knowledge except for an expert
3) a witness who cannot understand that he must tell the truth.
4) the trial judge
5) a juror -except in some circumstances

Front 34

What type of evidence can you use to attack a person's character?

Back 34

REPUTATION-----not opinion.

Front 35

What are the four ways to impeach?

Back 35

1) bias/prejudice
2) sensory defects
3) prior inconsistent statement
4) character to impeach

Front 36

Evidence about prior bad acts is inadmissible when...

Back 36

it is relevant solely to prove bad character.

Front 37

If witness has a criminal history then they may be crossed and challenged re:

Back 37

The court MUST ADMIT any conviction involving dishonesty or false statement within past 10 years. If older than 10 years the court MAY admit it pending the 403 balancing test. Also the court MUST admit a recent conviction for a crime of a witness punishable by death or at least one year imprisonment if the impeaching party first shows that the probative value outweighs the prejudicial effect. If the conviction or release from confinement is older than 10 years it may be admitted if the court determines the probative value SUBSTANTIALLY outweighs its prejudicial effect.

Front 38

When can D be impeached by recent non-fraud crimes?

Back 38

the court MAY admit a recent conviction for a crime punishable by death or at least one year imprisonment unless the objecting party first shows that the prejudicial effect outweighs the probative value.

Front 39

When are juvie adjudications admissible to impeach credibility

Back 39

Normally they aren't. Except when such a conviction would be admissible but for the age of the convicted, (IE a crime of dishonesty) and the admission of the evidence is necessary for determination of the issue of guilt or innocence.

Front 40

Cross is limited to...

Back 40

The subject matter of the direct and matters affecting the credibility of the witness. Although the court may permit inquiry into other matters

Front 41

What is the remedy for when the opposing party is deprived of his opportunity to cross?

Back 41

Strike the direct exam.

Front 42

Present memory refreshed?

Back 42

When the witness has some knowledge of the testimony but whose memory is incomplete. The witness is shown a refresher then testifies to what he remembers without refreshing evidence present. The rules regarding hearsay and admissibility of writings are inapplicable here.

Front 43

Prior Inconsistent Statements- When are they admissible substantively?

Back 43

It is admissible only to impeach unless
1) it is sworn under oath (then it is admissible for its truth)
2) it is an admission
3) a hearsay exception applies.

Front 44

When is extrinsic evidence of a prior inconsistent statement by a witness admissible?

Back 44

when the witness is afforded an opportunity to explain or deny AND the opposing party is afforded an opportunity to interrogate him thereon, OR the interests of justice otherwise require.

Front 45

What can a layperson testify to?

Back 45

In the form of an opinion on matters which are rationally based on the perception of the witness, helpful to a clear understanding of his testimony or to the determination of a fact in issue, and not based on scientific, tech or other specialized knowledge. (Speed and other measurements, physical states/intox or injury, personal emotions of others, sensory descriptions, value of one's own land, sanity of the testator (if they are a witness to a will)

Front 46

Is a lay witness's testimony objectionable because it touches on an ultimate issue? How about Expert witnesses?

Back 46

Nope- lay witnesses can touch on the ultimate issue. In Florida, unlike many other places- experts can testify to the ultimate issue when it is appropriate.

Front 47

What is a statement for hearsay purposes?

Back 47

Oral or written assertion or nonverbal conduct if it is intended as an assertion. (gestures, head nods, silence)

Front 48

Hearsay analysis process:

Back 48

1) Isolate the statement
2) who is the declarant?
3) Is it being offered for its truth?

Front 49

Nonhearsay:

Back 49

Prior sworn inconsistent statements...not an affidavit, must be under oath and subject to cross.
Prior consistent statements- admissible to rebut charge against declarant of recent fabrication or improper influence or motive. Also admissible to rebut evidence of bias.
Prior identifications

Front 50

Hearsay exceptions: List

Back 50

Admissions
present sense impressions
Excited utterences
Statements of mental or physical condition
Statements for medical treatment
Past recollection recorded
Business records
Public records
Learned treatises
statement of child.
Family records
Ancient documents
Declarant unavailable
former testimony
statement under belief of impending death
Statement against interest

Front 51

Hearsay Exceptions:Admissions

Back 51

Statement of a party- oral or written assertion- used against party by opponent. Can be words, letters, documents. Adoptive admissions- party remains silent while statement is made in his presence he would have denied if it were false. Vicarious admissions are statements of employees made during employment concerning a matter in the scope of employer. No authority to speak is required.

Front 52

Hearsay Exceptions:present sense impressions vs excited utterances

Back 52

Present sense impression must be made while declarant perceived the event or immediately thereafter-- an excited utterance doesn't require spontaneity, as long as it was made under the stress of excitement.

Front 53

Hearsay Exceptions:Statements of mental or physical condition

Back 53

Statements of mind are not admitted if it was made under circumstances that indicate lack of trustworthiness. Statements of mind/physical condition are admissible if offered to prove that condition. The present mental state exception can be used to prove actions in accordance with that mental state. Statements of present physical condition are admissible if made to anyone. Past physical condition are admissible only if made to a doctor or the like for the purposes of diagnosis.

Front 54

Hearsay Exceptions:statement s for medical treatment

Back 54

Admissible if made for purposes of diagnoses, treatment, description of med history, past or present symptoms, pain or sensation, or the inception of general character of the cause or external source thereof, insofar as reasonably related to diagnosis or treatment. This might include statements made to a doctor for the purposes of enabling him to testify even if there is no treatment.

Front 55

Hearsay Exceptions:Past recollections recorded

Back 55

Memo or record is admissible if it concerns a matter about which a witness once had knowledge but now doesn't remember. It must have been MADE by the witness himself when the matter was fresh in his memory. It may be read into evidence but not received as an exhibit unless introduced by an adverse party. Witness must actually be on the stand.

Front 56

Hearsay Exceptions:Business records

Back 56

Records kept in routine course of business are admissible even though declarant is available. Record keeper doesn't have to have personal knowledge but it must have been transmitted by someone with personal knowledge. Not applicable to records anticipating litigation. Absence from record may be used to prove something didn't occur if it was typically recorded.

Front 57

Hearsay Exception: Public Records

Back 57

Records, reports, statements or data compilations in any form, of public offices or agencies are admissible if they set forth the activities of the office or agency or matters observed pursuant to the duty imposed by law

Front 58

Hearsay Exception:Learned treatises

Back 58

Statements in published Treatises are admissible if they are established as a reliable authority by testimony or admission of the witness. The passage can be read into the record but the treatise can't be entered into evidence. IT may only be used after an expert has relied on it or it has been called to the expert's attention on cross and the expert has established its qualifications. Florida doesn't allow us to use treatises to bolster the witness's credibility but they may be used to cross an expert.

Front 59

Hearsay Exception: statement of a child victim

Back 59

Hearsay statements of child victims are allowed in civil or criminal cases. Court must find at a prelim hearing that the statement has sufficient indica of reliability- the child has a mental, emotional, or defelopmental age of 11 or less, and the statement describes the act of abuse.

Front 60

Hearsay Exceptions: Family records and reputation

Back 60

Family records and reputation concerning family history are admissible to prove family relationships.

Front 61

Hearsay Exception: Ancient documents

Back 61

20 years or more makes doc ancient. Must have established authenticity.

Front 62

Hearsay Exception: Declarant unavailable

Back 62

Former testimony, statements under belief of impending death, statements against interest and statements of personal or family history require that the declarant be unavailable to be admissible. Statement offered against a person who does something bad to make a witness unavailable will be an exception as well. A witness who refuses to testify even after ordered by the court to do so, or is exempted from testifying because of privilege, is unavailable.

Front 63

Hearsay Exception: Former testimony

Back 63

Applies to a now unavailable declarant's former testimony given as a witness, or in a dep if the party against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, redirect exam.

Front 64

Hearsay Exception: Statement under belief of impending death.

Back 64

In any civil or criminal trial a statement made by someone while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is a hearsay exception if declarant is unavailable.

Front 65

Hearsay exception: Statement against interest

Back 65

If declarant is now unavailable and the statment was at the time of its making so far contrary to declarant's interest or subjected him to crim or civil liability or to render nvalid a claim by him against another that a reasonable man in his position would not have made the statement unless he believed it to be true. BUT a statement tending to expose declarant to crim liability and offered to exculpate the accused isn't admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Front 66

Attacking and supporting the credibility of the declarant- hearsay

Back 66

If a hearsay statement or exception has been admitted the credibility of declarant my be attacked and may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness.

Front 67

Confrontation clause- what does it require?

Back 67

It must be a criminal case where the declarant is unavailable then testimonial evidence is inadmissible unless the D is given a prior opportunity to cross the declarant.

Front 68

Authentication- proof of signature- physical evidence

Back 68

To prove the content of a writing,recording or photo the original is required except as otherwise provided. this is the best evidence rule and it applies only where the contents of a writing are at issue. A duplicate is admissible unless a genuine question of authenticity of the original is raised or if it would be fundamentally unfair to admit the dupe.

Front 69

The original is not required and other evidence of the contents of a writing recording or photo is admissible if : (list 1-4)

Back 69

1) all originals are lost or destroyed unless in bad faith
2( no original can be obtained by judicial process
3) If party in charge of document was given notice it would be required and he doesn't produce it or
4) the writing is not closely related to a controlling issue.

Front 70

What are ways that the contents of an official record may be proved?

Back 70

by copy, certified as correct or testified to be correct by a witness who has compared it to original. If a copy that complies with the foregoing cannot be obtained by reasonable diligence other evidence of contents may be admitted.

Front 71

What are the rules about photographs being admitted in lieu of property that was taken?

Back 71

1) the photo bears a written description of the property taken, the location where it occurred, the name of investigating LEO the date of photo and name of photographer
2) this description is made under oath by police officer and
3) the photo is signed by the photographer.