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Bar - Evidence with FL Distinctions
Evidence with FL Distinctions

Additional Law Flashcards




Presentation of evidence: role of judge and jury
judge: decides preliminary questions of competency of evidence

FL distinction: judge may not summarize evidence or comment to the jury about the weight of the evidence, credibility of witnesses, or guilt of the accused

jury: determines weight and credibility of the evidence
Presentation of evidence: challenge to evidence ruling
Can challenge evidentiary ruling as erroneous if: 1) error affects substantial right of a party; and 2) the party notifies the judge of the error. Can be done through: 1) an objection if evidence is admitted (specific grounds for objection), 2) an offer of proof if the evidence is excluded (explain relevance and admissibility of testimony)

plain error rule: error that is obvious to the court; if it affects a substantial right, grounds for reversal even without challenge

once a judge has made a definitive ruling, do not need to renew the objection
Presentation of evidence: completeness rule
for partial introduction of evidence, adverse party may compel introduction of omitted portion to help explain admitted evidence
Presentation of evidence: judicial notice
defined: court's acceptance of a fact as true without requiring formal proof. Adjudicative facts (facts of the case at hand typically decided by jury) subject to judicial notice if facts not subject to reasonable dispute because: 1) generally known within community or 2) can be accurately and readily determined from reliable sources. Cannot be based solely on judge's personal knowledge, multiple witness testimony. Must be accurately and readily determinable.

FL: court MUST take judicial notice of:
1) decisional, constitutional and public statutory law and resolutions of the FL legislature and US congress
2) FL court rules that have statewide application, its own rules, and US court rules adopted by SCOTUS; ;and
3) SCOTUS and Court of Appeal rules

FL: court MAY take judicial notice of, at its discretion: of another jurisdiction's decisions, laws, rules, and records, generally known or determined facts, and governmental agencies' and departments' official seals. A court is not required to give effect to an earlier court's refusal or failure to take judicial notice of a matter.
Presentation of evidence: judicial notice: procedure
Party can ask a court to judicially notice a fact at any time during the trial or on appeal. Usually upon motion by a party BUT the court can take judicial notice itself. Exception: court CANNOT take judicial notice against a criminal defendant for the first time on appeal.

Court must take judicial notice if: 1) requested and 2) necessary information is given to court

opposing party has the right to object to judicial notice and be heard
Presentation of evidence: judicial notice: effect
civil juries: must accept that fact as true
criminal juries: may or may not accept that fact as true
Presentation of evidence: trial process
judiciary has control over order of witnesses/presentation of case to effectively determine truth and avoid wasted time or witness harassment; may also question or call witness

1) prosecution or P goes first and presents its case-in-chief
2) D then presents his case-in-chief
3) after the D rests, prosecution or P gets to present rebuttal witnesses
Presentation of evidence: scope of cross-exam is limited to
1) scope of direct and
2) credibility of the witness (credibility is always at issue; D does not waive his 5th amendment privilege by answering preliminary questions)
Form of questions
Leading questions
Compound questions
Questions that assume facts not in evidence
Argumentative questions
Questions that call for a conclusion or opinion not qualified to give
Repetitive questions (asked and answered)
Form of questions: leading questions
Suggests the answer in the question
General rule: leading questions not allowed on direct; there are no restrictions on the use of leading questions on cross-ex
Exceptions: 1) can ask foundational questions, 2) a witness who has trouble communicating, 3) adverse or hostile witness on direct
Exclusion of witnesses
Most witnesses can be excluded form the courtroom by party request or court initiative

FL: witness may not be excluded if the witness is 1) a party who is a natural person; 2) an officer or employee of a non-natural party in a civil case; 3) witnesses whose presence is essential to the presentation of the party's cause, or 4) in a criminal case, the victim of the crime, the victim's next of kin, the victim's lawful representative, or the parent or guardian of a minor child victim, unless the person's presence would be prejudicial
Burden of proof
Production: must produce legally sufficient evidence for each element of claim such that reasonable trier of fact could infer alleged fact has been proven (prima facie case)
--for criminal cases think LOVID: location, offense, venue, identification of the defendant, and date of the alleged of the crime

--civil: preponderance of the evidence (or clear and convincing for certain cases like fraud)
--criminal: beyond a reasonable doubt
Rebuttable: shifts burden of production (but not persuasion) to opposing party

Conclusive: cannot be challenged by contrary evidence

FL: presumption is rebuttable unless it is conclusive under the law from which it arises. In civil cases, every rebuttable presumption either: 1) requires the trier of fact to assume the existence of a presumed fact unless contrary evidence is introduced (bursting bubble presumption) or 2) places the burden of proof on the party it operates against to show the nonexistence of the presumed fact. (examples of second: child born to married parents is a legitimate child people are sane, marriage is valid, acts of public officials are carried out according to lawful duty)
Relevance: evidence is relevant if
It has a tendency to make a fact more or less probable than it would be without the evidence (probative value) and the fact is of consequence in determining the action (material)

Generally, all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision
Relevance: direct and circumstantial evidence
direct: identical to factual proposition it is offered to prove

circumstantial: indirect proof of factual proposition through inference from collateral facts
Relevance: exclusion of relevant evidence
if probative value is substantially outweighed by the danger of unfair prejudice (confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence) = exclude
Relevance: dependent on existence of fact
proof must be sufficient to support finding that the fact does exist (in order to prove C, have to prove A + B)
Relevance: curative admission of irrelevant evidence
admitted when necessary to rebut previously admitted irrelevant evidence to remove unfair prejudice (ex: D on trial for killing V. D deposited 10k into account. Can put on evidence that D got money for book deal)
Character evidence: defined
generalized information about a person's behavior; typically inadmissible
FRE: it can be proven by reputation, opinion and specific acts in certain cases

FL: can be proven by reputation only
Character evidence: civil cases
inadmissible to prove person acted in accordance with that character or trait on a particular occasion AND

admissible when character is essential element of claim/defense instead of proving a person's conduct (defamation, negligent hiring/entrustment, child custody)
Character evidence: criminal cases: D's character
by prosecution: not permitted to introduce evidence of D's bad character to prove D has propensity to commit crimes so likely to have committed crime in question

by defense: D permitted to introduce evidence of good character as being inconsistent with type of crime charged, but must be pertinent to crime charged, and must be reputation/opinion testimony

D opens the door: once D offers evidence of his good character (or victim's bad character) prosecution can rebut D's claim by attacking D's character with reputation and opinion only
Character evidence: criminal cases: victim's character
by defense: D may introduce reputation/opinion evidence of victim's character when relevant to defense asserted

by prosecution: prosecution can offer rebuttal evidence of victim's good character (and trait for peacefulness in homicide cases) when D has introduced evidence of victim's bad character (to rebut evidence homicide victim was first aggressor)

FL: victim's character can only be proven by reputation, never opinion. Prosecution is not permitted to rebut with the D's character trait when the D offers a victim's character trait; P can only bring up the victim's character for peacefulness
Character evidence: methods of proving character
when character evidence is admissible, may be proven by testimony about person's reputation or witness opinion

FL: character generally can be proven by reputation only. But specific acts may be used when character or a trait of character of a person is an essential element of a charge, claim or defense
Character evidence: impeachment
character evidence of witness's untruthfulness is admissible/relevant to impeach witness
Prior bad acts: when admissible
not admissible to show D's criminal propensity to prove he committed crime in question. Three times when available: MIMIC evidence, specific acts, and habit

FL allows if they are not used to prove character

Have to give advance notice of intent to use prior act at trial if defense request reasonable notice

FL: states have to give D 10 days notice of intent to use evidence (D doesn't have to ask) but no notice required if this is being used for impeachment or rebuttal
Prior bad acts: how to prove other acts occured
FRE: must prove by the conditional relevance rule: other acts are not relevant unless they actually happened. Judge will let the jury hear about these other acts if the judge concludes that the jury could conclude by a preponderance of the evidence that the other acts occurred

FL: must show by clear and convincing evidence
Prior bad acts: MIMIC evidence
MIMIC: motive, intent, absence of mistake, identity, or common plan
--subject to admissibility restrictions, may be introduced for any other purpose except to prove that because D had propensity to commit crimes, D committed the charged crime
--Ex: D charged for burglary by drilling hole to look in house; had drilled in house before; can admit prior bad act
Prior bad acts: specific acts as character evidence
civil: when character evidence is an essential element of claim/defense, can be proven by specific acts or opinion/reputation testimony

criminal: specific acts not admissible, only opinion/reputation testimony (exception is when character is essential element of charged crime)

cross examination: character witness can be asked about specific acts committed by person witness is testifying about

FL: evidence of other crimes, wrongs, or acts is admissible to prove a material fact in issue, but not to prove bad character or propensity. Prior bad acts are admissible in criminal cases involving sexual batter and child molestation, but not in other sex offense cases
Prior bad acts: sex offense cases
FRE: very liberal in bringing other acts evidence in cases that deal with sex offense cases (civil and criminal)

FL: only used in sex cases that deal with child molestation and criminal sex offense cases
Prior bad acts: reverse 404(b)
situation: someone is accused of crime and claim: I don't know who did it but I didn't. So D puts on evidence that there are other crimes out there committed by someone else and those crimes are similar to the crime that D is charged with

FRE: admissible if offered by D if it is relevant to show that there is reasonable doubt

FL: other crime evidence must be of "striking similarity" (stricter)
Habit evidence
evidence of a person's habit admissible to prove person acted in accordance with habit on a particular occasion

may be admitted without corroboration and without an eyewitness

FL: allows evidence of the routine practice of an organization. Otherwise, FL courts follow common law, allowing evidence of a person's habit to corroborate other evidence that shows the habit occurred at a relevant time.
Witnesses: personal knowledge requirement
non-expert witness must have personal knowledge of matter in order to testify

expert witnesses can speculate or hypothesize
Witnesses: competence
every witness is presumed competent unless proven otherwise. Questions about mental competency go to the weight not admissibility of a witness's testimony. (but in diversity cases witness competency determined by state law)

judge: may not testify in trial over which she presides); no objection required (plain error rule)

juror: at trial may not testify as witness at trial in front of co-jurors; after trial may not testify about 1) statements made during deliberation, 2) effects of anything on a particular juror's vote, and 3) and any juror's mental processes. Can testify about: 1) extraneous prejudicial information brought in, 2) outside improper influences, 3) mistake in entering verdict on form (but not consequences of verdict)

children: court decides competency (no bright line rule or specific age); factors: intelligence, ability to distinguish between truth and falsehood, understanding importance of telling the truth

FL: person is disqualified to testify as a witness if he is 1) incapable of making himself understood, 2) incapable of understanding the duty to tell the truth

FL: court may set conditions on taking testimony of a witness less than 16 years old
Witnesses: oath
must take an oath or affirmation to impress a duty of conscience on the witness

FRE: does not mention children taking oaths before testifying
FL: child may be allowed to testify without taking an oath. Sets forth form of the oath that the court must substantially follow

interpreters must also take an oath
Witnesses: interpreters
FRE: only role is in helping with foreign language
FL: broader in scope, allows interpreters in additional circumstances, such as a child, mentally disabled, or deaf person
Witnesses: dead man's statutes
A party that has a financial interest in a civil case is prohibited from testifying about a communication or transaction with a dead person whose estate is a party to that suit, and the alleged communication is adverse to the estate. Waiver: protected party can waive by failing to object to disqualified witness or introducing protected evidence. Not applicable in criminal cases.

FRE: does not have a dead man's statute but may apply one in a diversity case if the particular state has one

FL: does not have a dead man's statute; repealed in 2005
challenge to witness's testimony can be based on character for truthfulness, bias, ability to perceive/testify accurately, contradictory prior statement, or another witness. Can introduce: contrary evidence on non-collateral matter, adverse party's inconsistent statement, prior inconsistent statement made under oath or signed writing, impeaching statements made by witness during direct, introduced to preempt impeachment by opposing party, criminal D can introduce otherwise admissible evidence
Impeachment: specific instances of conduct
extrinsic evidence of specific instances of untruthful conduct generally not admissible

On cross, specific instances can be asked about if it's regarding truthfulness of the witness or another witness about whose character the witness being cross-examined has testified

Must have good-faith belief in prior misconduct and may not cross-examine witness about an arrest, but can cross-examine about the underlying conduct that led to the arrest. Extrinsic evidence generally cannot be used to prove that specific instances of untruthfulness. Extrinsic evidence of specific conduct can be used to impeach on other grounds like bias.

By testifying on another matter, witness does not waive the privilege against self-incrimination for testimony relating only to the witness' character
Impeachment: witness's character for truthfulness
opinion/reputation testimony; evidence of truthful character only admissible after witness's truthful character directly attached.

specific instances of conduct: generally not admissible as indication of character for truthfulness; on cross ex: ok if probative of witness's truthfulness or truthfulness of another witness about whose character the witness has testified; if witness denies, cannot bring up extrinsic evidence

FL: can be attacked only through use of reputation
Impeachment: criminal convictions
can be used (but not arrests) to impeach witness' character for truthfulness

crimes involving dishonest/false statement: can be used to impeach any witness for any conviction

crimes not involving dishonesty/false statement: admissible to impeach witness only if crime is punishable by death or imprisonment of more than one year (subject to 10 year limitation below)

convictions or release more than a year ago: admissible if probative value substantially outweighs prejudicial effect and reasonable written notice of intent to use evidence

conviction evidence not admissible if: pardoned, annulled, later found innocent, rehabilitated

conviction cannot be used for impeachment purposes if the witness has been pardoned, provided that either 1) the action was based on a finding of innocence, or 2) the witness has not been subsequently convicted of another felony

FL: impeaching a witness with prior convictions for misdemeanors involving dishonesty or felonies is allowed, and questions relating to felony convictions may be inquired about on cross-examination. Evidence of juvenile convictions is always inadmissible to show untruthfulness.

FL: does not follow a specific 10-year limit, but considers if "so remote in time as to have no bearing" on the present character of the witness. A pardon does not make the conviction inadmissible.
Impeachment: criminal convictions: method of proof of prior convictions
FRE: when prior conviction is raised, jury learns what the conviction was for. Can be proven by witness's admission on cross or direct or extrinsic evidence (record of the conviction).

FL: cross examiner simply asks IF the witness was convicted of a felony or if HE was convicted of a crime involving dishonesty or false statement
-if witness agrees that he was convicted, inquiry ends there and jury does not hear nature or name of the crime
-if witness denies the conviction, cross-examiner can then examine the specifics of the crime
Impeachment: criminal convictions: pendency of an appeal
has no affect on impeachment; evidence of pending appeal is also admissible
Impeachment: juvenile convictions
not admissible to impeach defendant. If witness is not defendant, admissible if offered to impeach truthfulness and if: 1) offered in a criminal case, 2) would be admissible if an adult conviction would be admissible, and 3) admitting evidence is necessary for fair determination of guilt or innocence
Impeachment: prior inconsistent statements
When prior inconsistent statement is written, or is an oral statement reduced to writing, party introducing the statement must show it to opposing counsel if requested.

Extrinsic evidence may only be introduced if the witness is given the opportunity to explain or deny the prior inconsistent statement. Opportunity to explain or deny does not need to take place before the statement is admitted. Exceptions: no opportunity need to be given to explain or deny if: 1) impeaching a hearsay declarant or 2) admission of a party opponent. Extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding a collateral (irrelevant) matter.

If the statement is made under oath then you can use for substantive purposes and impeachment purposes

FL: witness, not merely the lawyer for adverse party, must be shown the prior inconsistent statement before the evidence is introduced, on motion of the adverse party
Impeachment: bias or interest
can be used to impeach witness because relevant to credibility of his testimony. Can introduce evidence of plea deals

bases: 1) witness has relationship to the party or victim, 2) witness has an interest in the outcome of a case, 3) witness has an interest in testifying

foundation must be laid before extrinsic evidence may be introduced
Impeachment: sensory competence
may be impeached by showing witness has a deficiency in ability to perceive, recall or relate information
Impeachment: impeaching a hearsay declarant
Ex: A is on stand and quotes B as saying "C ran out of here." B however had written a note to C that said "I never saw you run out of there." The note can be admitted against her hearsay statements for impeachment purposes.

She can be impeached by any evidence that would have been admissible had the declarant testified (at that time)

Similar impeachment treatment is given to a non-hearsay statements by co-conspirator, agent, or authorized spokesperson
Impeachment: rehabilitation
a witness who has been impeached can be rehabilitated by explanation on redirect

done so by reputation or opinion evidence with regard to character for truthfulness (if the witness's character was attacked)

by a prior consistent statement offered to rebut a charge that the witness lied

FL: impeached witness may call witnesses to testify to his reputation for truthfulness, but may not call witnesses to give opinions

FL; when a witness is examined concerning written statements, the statement must be shown to the witness. Extrinsic evidence of a witness's prior inconsistent statement is generally inadmissible unless the witness first has an opportunity to explain or deny the prior statement
Impeachment: religious opinions and beliefs
not admissible to attack or support a witness's credibility

exception: may be used to show bias or interest
Impeachment: contradictory evidence
witness may be impeached by evidence that is contradictory to the witness's testimony (ex: P is suing D for damages to his car as a result of an accident. D may introduce P's record of car insurance to show that P's car was damaged in a previous accident)
Impeachment: collateral issues
general rule: may not impeach the credibility of a witness by introducing extrinsic evidence on a collateral matter
Present recollection refreshed
witness may examine any item (document, photo, apple) to refresh the witness's present recollection. Cannot use the object/item while testifying. Item is not introduced into evidence by examining counsel.

Opposing counsel's options:
-right to see and inspect refreshing item
-can introduce the item into evidence (usually for impeachment purposes)
-in crim case, if prosecution does not produce evidence, court may strike the testimony and declare a mistrial
Past recollection recorded
Memo or record regarding a matter about which a witness once had knowledge of, but now has insufficient recollection upon which to testify. May be admitted into evidence

FRE: report must have been "made or adopted" by the witness

FL: report must have been made by the witness (merely adopting is not enough)
Opinion testimony: lay witness v. expert witness
lay witness: admissible if based upon the perception of the witness and helpful to clear understanding of witness's testimony or determination of a fact in issue

expert witness: subject matter must be scientific, technical, or some other specialized knowledge that helps the trier of fact understand evidence or determine fact at issue

FL: lay witness may testify as to his inference or opinion, if doing so will not mislead the trier of fact or prejudice the objecting party. Such inferences and opinions do not require special knowledge, skill, experience or training.
Qualified expert
FL now follows FRE and uses Daubert standard

Daubert: expert testimony may be admitted if: 1) witness is qualified by possessing knowledge, skill experience, training or education, 2) testimony is based on sufficient facts or data, 3) testimony is the product of reliable principles and methods, 4) witness applied those principles and methods to the facts of the case. This is for the judge to decide

an expert may give opinion on al ultimate issue (including D's state of mind) but cannot give opinion on whether criminal D had requisite mental state for the crime charged

FL: expert witness can testify to ultimate issues as well as requisite mental state

can base opinion on personal observation or data that was provided

court may appoint an expert, must inform expert of expert's duties, expert must advise both parties of findings, and each party may depose a court-appointed expert

interpreters are subject to the same rule as expert witness

FL: opposing party may examine the expert witness about underlying facts or data for her opinion. If party establishes that the expert does not have a sufficient basis for the opinion, opinion will be inadmissible
Tangible evidence: defined
any evidence not presented as oral or verbal form
Tangible evidence: authentication
all tangible evidence must be authenticated. Authentication is showing that an object is what it is claimed to be
Tangible evidence: authenticating physical evidence
1) personal knowledge of the witness who has familiarity with the subject

2) using distinctive characteristics

3) by chain of custody

4) reproductions (photos, maps, etc.); witness who has personal knowledge must testify that it actually depicts what it is claimed to represent

5) X-rays; requires: accurate process, machine was working properly, qualified operator, and show chain of custody

FL: photos of property wrongfully taken: allows them to be used in the same way that the property would have been used. Idea is that stolen property later recovered does not need to remain in evidence locker and can be returned to property owner. To authenticate photo: 1) written description of property alleged to have been taken, 2) name of owner, 3) location where it occurred, 3) name of investigating police officer, 4) date photo was taken, 5) signature of photographer
Tangible evidence: authenticating documentary evidence
common methods: 1) stipulation (parties agree), 2) testimony of an eye witness, or 3) handwriting verification

types: 1) ancient documents: more than 20 years old, in a condition that is unlikely to create suspicion about its authenticity, and found in a place that would likely be found, 2) public records: recorded or filed in a public offices as authorized by law or the document is from the office where items of that kind are kept, 3) reply letter doctrine: written response to an original communication and unlikely it was forged by someone else, 4) handwriting verification: comparison (expert witness or trier of fact) or non-expert witness with personal knowledge
**require notice to opposing counsel

self-authenticating documents do not require extrinsic proof of authenticity:
-public documents bearing a seal
-certified copies of public records
-official publications issued by a public authority
-newspapers or periodicals
-trade inscriptions
-notarized or acknowledged documents
-commercial paper
-documents declared by federal statute to be authentic
-records of regularly conducted business activity
**means the business records don't need to be certified by a custodian of the records
**do not require advance notice to opposing counsel

FL: certified transcript by a court reporter is prima facie evidence of a correct statement of the testimony
Tangible evidence: authenticating oral statements
can be identified by any person who has heard voice at any time, even if for litigation purposes

party to telephone conversation can authenticate if:
-he recognized speaker's voice
-speaker knew facts that only a particular person would have known
-caller dialed the number that was believed to be the speaker's and speaker identifies himself upon answering
-caller dialed a business number and spoke to person about regular business
Learned treatises
learned treatise can come into evidence and expert witness can testify from it on direct; an expert on direct/cross or other expert or the judge determines that it is accepted

FL: use of treatise or any other professional literature is limited to cross exam and cannot be used on direct; witness must admit to the treatise's sufficiency; if expert denies that it is authoritative, it is admissible if the judge rules that it is authoritative
Best evidence rule
Original document or reliable duplicate must be produced to prove contents of writing when contents are at issue or witness is relying on contents when testifying. Handwritten copies of original are not duplicates and are admissible only when original/duplicate is lost.

at issue when: 1) document is being used as proof of an event, 2) document has legal effect (will or K), or 3) the witness is testifying based on the facts learned in the writing

FL: duplicate of a negotiable instrument, security, or writing that evidences a right to the payment of money is inadmissible
Best evidence rule: when the original is not required
when the originals are lost or destroyed in good faith, party against whom original would be offered failed to produce it, or document is not closely related to controlling issue

FL: photo of wrongfully taken property rule
Privileges: FL distinction
all privileges except for attorney-client and communications to clergy may be overcome to enable disclosure of information about the abuse of elderly, children or disabled
Privileges: confidential communication
for it to be privileged it must be confidential; if overheard by an unwanted third party it is destroyed; it is not destroyed though if the third party is an unknown eavesdropper or the party's presence is necessary (translator)

holder may waive privilege if: holder fails to timely assert it, voluntarily discloses it, contractual waiver

wrongful disclosure without holder's consent is not a waiver

FL: wrongful disclosure by someone other than the privilege holder without the privilege holder's consent, compelled disclosures and necessity by an opposing party to a civil action do not constitute a waiver
Privileges: spousal privilege
spousal immunity: married persons cannot be compelled to testify against his spouse in any criminal proceeding regardless of who D is; witness spouse holds privilege in federal court
-applies to testimony about events before/during marriage; privilege expires upon divorce or annulment

confidential marital communications: spousal communications during marriage is privileged when made in reliance on sanctity of marriage; both spouses hold privilege and it applies in civil and criminal cases
-begins with marriage and continues indefinitely

neither applies when one spouse sues another or spouse is charged with a crime against the other or the children of either; in FL, this privilege does not apply when a spouse becomes a D in a criminal case (communications not deemed confidential)

FL: doesn't recognize immunity between spouses; husband and wives may be called to testify against one another in both civil and criminal trials. Spouse may claim the marital communications privilege in response to questions, except criminal proceedings, when D-spouse offers the communication as evidence.
Privileges: attorney-client
client holds privilege; communications for the purpose of seeking legal advice or representation; attorney doesn't need to give advice or agree to representation

exists until waived and can survive client's death

not privileged: fee arrangement, identity of client, underlying facts of employment, statement made to an attorney who is acting in another capacity

corporate clients: non-control group communications can be privileged if they are communicating within their employment duties and for the purpose of seeking legal advice for the corporation

doesn't protect communications made to enable or aid commission of what client knew or should have known was crime/fraud, regarding disputes between attoreny and client, parties who claim the same deceased client, between co-clients of the same attorney who are now adverse

waived if spoken in front of third party (but not client representatives)

FL: if someone is using the Child Support Enforcement Program, the communications are privileged

FL: if a person acting as a fiduciary or guardian for another person and talks to a lawyer about that relationship or in furtherance of that relationship, those communications are privileged
Privileges: agency meetings and public officials (FL sunshine)
when FL state government agencies meet with attorneys, those meetings are open to the public, but if the communication is about litigation, those communications are privileged. They may only be disclosed after the litigation ends
Privileges: journalist privilege
applies only to professional journalists who are engaged in actively gathering news. Does not extend to bloggers or book authors

qualified privilege that can be overcome by a showing of all three: 1) information being sought is for an issue that is unresolved, 2) the information is not available from an alternative source, 3) compelling interest exists for requiring disclosure

does not cover: physical evidence of crimes, eye-witness observations of crimes, visual or audio recordings of crimes

not waived by publishing or broadcasting of the privileged information
Privileges: physician-patient
statement privileged so long as it is made for the purpose of obtaining medical treatment; patient holds privilege

doesn't exist if:
-information was acquired for reasons other than treatment
-patient's physical condition is at issue
-statement is part of crime
-dispute exists between patient and physician
-patient contractually waives privilege
-federal question case

FL: prohibits a physician from discussing a patient's medical issues without the consent of the patient, except when a court compels a physician to provide medical records
Privileges: psychotherapist-patient privilege
patient holds privilege, but doesn't exist if patient's mental condition is at issue, statement was result of state ordered exam, or case is commitment proceeding against patient

FL: does recognize privilege for confidential communications related to the diagnosis of a mental or emotional condition
Privileges: self-incrimination
5th amendment protection allowing witness to refuse to give testimony that may tend to incriminate him:
-covers only current statement
-does not apply to physical characteristics or mannerisms
-does not apply to corporations or other organizations

crim case: prosecutor cannot comment on D's failure to take the stand or suggest that jury should draw a negative inference therefrom

civ case: opposing counsel can ask the jury to draw a negative inference from witness's claim of privilege

witness may be compelled to provide incriminating testimony if the government grants him immunity from prosecution
-transactional immunity: protection regards entire transaction
-use immunity: protection only covers compelled statement
-government constitutionally required to offer use immunity, which prohibits only the use of the compelled testimony against the witness
-if government does prosecute witness, it has burden to show in a later proceeding that compelled testimony did not provide investigative lead
-no privilege if witness's danger of incrimination has been removed
-does not protect against later civil trial
Privileges: clergy-penitent
pentitent is holder, but clergy member assert
Privileges: accountant-client
not available at common law, but may jurisdictions recognize by statute; operates similar to attorney-client
Privileges: FL
FL recognizes nine specific privileges
-sexual assault counselor-victim
-domestic violence advocate-victim
-communications made to clergy
-trade secrets

communications made in a mediation are confidential, and FL Traffic Crash Reports cannot be used as evidence at trial

if a communication is necessary to a party in a case, but cannot be disclosed because of a privilege, then the court may dismiss the claim or not allow the defense
Public policy exclusions: subsequent remedial measures
not admissible to prove negligence, culpable conduct, defective product/design, or need for warning/instruction

admissible for other purposes such as impeachment or ownership/control
Public policy exclusions: compromise offers and negotiations
not admissible to prove/disprove validity or amount of disputed claim or for impeachment by prior inconsistent statement or contradiction

admissible to prove bias or prejudice of witness, negate claim of undue delay, or prove obstruction of criminal investigation/prosecution
Public policy exclusions: evidence of payment, offers, or promise to pay medical expenses
not admissible to prove liability for the injury, but statements that accompany the payment, offer or promise to pay are admissible

FL: statements, writings, or gestures expressing sympathy to a person involved in an accident made to that person or her family are inadmissible in a civil action. Statements of fault in conjunction with such statements are admissible
Public policy exclusions: plea negotiation
withdrawn guilty pleas, please of no contest, and statements made while negotiating plea bargains or during plea proceedings are not admissible
Public policy exclusions: liability insurance
not admissible to prove whether person acted negligently or wrongfully

admissible to prove agency, ownership/control or witness's bias/prejudice
Public policy exclusions: sexual conduct
victim's conduct
-evidence of sexual behavior/predisposition not admissible in any proceeding involving sexual misconduct (rape shield)
-specific acts admissible to prove D not source of physical evidence in criminal case
-evidence of sexual behavior/predisposition admissible in civil case if probative value substantially outweighs unfair prejudice

FL: reputation evidence relating to victim's prior sexual conduct and manner of dress at time of offense incited a criminal sexual batter inadmissible

FL: specific instances of prior consensual sexual activity between victim and person other than D inadmissible in sexual battery prosecution unless established at an in camera haring that such evidence may prove:
-D not source of semen, pregnancy, injury, or disease; or
-if consent is an issue, such evidence tends to establish a pattern of conduct or behavior by the victim that is so similar to the conduct or behavior in the case at hand that it is relevant to the issue of consent

FL: use of prophylactic device or the victim's request for its use is not, by itself, relevant to issue of whether offense was committed or whether victim consented

D's conduct (evidence of sexual assault in criminal/civil case) admissible to prove any relevant matter

FRE: 14 day notice requirement
FL: no 14 day notice requiremnet
Hearsay: defined
out-of-court statement offered to prove the truth of the matter assert

declarant: must be a person

statement: oral, written, or assertive nonverbal conduct

offered to prove the truth of the matter asserted: not hearsay if offered to show effect on recipient, state of mind, impeachment

multiple hearsay: hearsay within hearsay may be admissible as long as each part of combined statement conforms to hearsay exception
Hearsay: non-hearsay: prior statements
Prior statements: witness must testify at present trial for it to be admissible
-prior inconsistent statements: used to impeach; if made under penalty of perjury admissible to impeach and substantive
-prior consistent statement: only admissible to rebut express/implied charge that declarant recently fabricated it or acted with improper motive, but must be made before declarant had reason to fabricate
-prior statement of identification: previous out-of-court ID after perceiving that person is admissible as substantive evidence
Hearsay: non-hearsay: opposing party's statements
made by a party to current litigation, admissible without personal knowledge and can be in form of an opinion
-judicial admission: an admission made during pleading, discovery process, or proceeding is conclusive evidence
-adoptive admission: statement of another person that party expressly/impliedly adopts as his own
-vicarious statements: statement made by one person imputed to another based upon relationship between them (employee/agent, authorized speaker, co-conspirators)

FRE: not clear whether these statements can be offered by an opposing party as statements or admissions of a party-opponent

FL: allows criminal D to offer such statements against the prosecution

before a statement can be offered as a statement of a co-conspirator of the D, there has to be shown that there was a conspiracy and that the person was a co-conspirator of the D
-FRE: statement itself can be used as part of the evidence that there was a conspiracy
-FL: statement itself cannot be used to prove that a conspiracy existed; has to be independent evidence of the conspiracy and has to be shown to a judge by a preponderance of the evidence that there is a conspiracy based on this other evidence in order for the statement to come in as a statement of a co-conspirator
Hearsay: exceptions: unavailable
unavailable on 5 grounds: 1) exempt on the grounds of privilege, 2) refuses to testify despite court order, 3) lacks memory of subject matter of statement, 4) unable to testify due to death, infirmity or physical or mental disability, 5) absent and cannot be subpoenaed or otherwise made to appear

5 exceptions:
1) former testimony: will be admissible if: declarant is unavailable, statement was prior testimony given at a prior hearing or deposition, and opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination
-prior testimony at a grand jury does not count
-also applies if current party's predecessor-in-interest had opportunity to develop
-FL: does not require that I or predecessor-in-interest have opportunity, just that someone had a similar interest as I had in the current case (A and B sue my neighbor re unsafe sidewalk. A then sues me and offers B statement from case against neighbor. Under federal approach would be inadmissible. In FL admissible because neighbor had similar interest)
-In criminal case watch out for Confrontation Clause issues

2) dying declarations: admissible if: declarant is unavailable and declarant believed death was imminent when she made the statement and statement pertains to the cause or circumstances of her death
-FRE: admissible in homicide prosecutions and civil cases only
-FL: admissible in any case

3) statements against interest: admissible if: declarant is unavailable, statement is against declarant's self interest and a reasonable person would not have made the statement unless he believed it was true
-against self interest: pecuniary or proprietary interest or exposes declarant to civil or criminal liability
-criminal liability: must have corroborating evidence that clearly indicates the trustworthiness of the out-of-court statement
-contract against statement of opposing party that does not require it to be against party's self interest

4) statement of personal or family history: concerning unavailable declarant's own birth, adoption, marriage, divorce, etc. not excluded

5) declarant unavailable due to wrongdoing (forfeiture against wrongdoing exception): statement that is offered against a party who is wrongfully responsible for the declarant's unavailability is admissible

FL: statement by deceased or ill declarant similar to one previously admitted: action against a personal representative, heir, assignee, legatee, devisee, trustee, or survivor of a deceased person, or guardian of a mentally incompetent person, a written or oral statement made by an unavailable declarant regarding the same subject matter as another statement that was previously offered and admitted into evidence by an adverse party is admissible as a hearsay exception
Hearsay: exceptions: unavailability immaterial
1) present sense impression: statement explaining or describing event/condition made while or immediately after declarant perceived it
-FL: called spontaneous statements; but inadmissible if made under circumstances that indicate a lack of trustworthiness (judge determines)

2) excited utterances: statement about startling event/condition while declarant is under stress of excitement that it caused

3) statement of mental, emotional or physical condition: statement of then-existing state of mind (present intent, motive, or plan) or emotional, sensory or physical condition (mental feeling, pain or bodily health made at that time)
-FL: statement of a then-existing mental, emotional or physical condition is inadmissible if made under circumstances that indicate lack of trustworthiness

4) statement made for medical diagnosis/treatment: describing medical history past/present symptoms is not hearsay if it is made for purpose of medical diagnosis or treatment; can be made to physicians, other medical personnel or even family members; need not necessarily be made by the patient so long as made for medical diagnosis or treatment
-FL: statement must be made by a person seeking the diagnosis or treatment, or who has knowledge of the facts and is legally responsible for a person who is unable to communicate the facts

5) recorded recollection: record not excluded if on a matter that witness once knew, made when matter was fresh in witness's memory, accurately reflects witness's knowledge, and witness states that he cannot recall even after consulting record on the state (read into evidence, but received as exhibit if offered by adverse party)
-FL: statement must have been made by the witness, not adopted by the witness

6) business record: includes nonprofits, record must be kept in course of regularly conducted business activity, making of record was regular practice, and record was made at or near the time by someone with knowledge
-FL: any opinion or diagnosis a party seeks to enter as part of a business record must also be admissible according to rules governing opinion testimony

7) public records: statement of public office/agency that sets out activities of office, observation of person under duty to report (but not police in criminal case) or factual findings of legal investigation
-FL: officer's observations can come in for an affidavit containing information about testing for alcohol or drugs in DUI case, but watch out for confrontation clause

8) learned treatises: statement in treatise, periodical or pamphlet not excluded if expert witness relied on statement during direct/cross and publication reliable authority
-FL: no exception to hearsay rule for learned treatises in FL, although may be admissible on cross to attack credibility

9) judgment of previous convictions: final judgment must be entered after trial or guilty plea, conviction was for crime punishable by death or imprisonment for more than one year, evidence offered to prove any fact essential to sustain judgment
-FL: all final judgments and decrees in FL are admissible as prima facie evidence of the entry and validity of such judgments and decrees

FL: out-of-court statements made by certain child victims, elderly, or disabled adults are admissible if 1) they were made in camera, and 2) the person testifies, or if the person is unavailable, there is corroborative evidence of the offense
-unavailable in this case includes a finding that participation in the proceeding would result in a substantial likelihood of severe emotional or mental harm
Hearsay: exception: residual exception
catch-all exception of a statement that is not otherwise covered by the FRE

FL: has not adopted
Hearsay: corpus delicti rule
no one can be prosecuted for a crime unless there is evidence that a crime was committed.

FRE: do not apply, an out of court admission or confession may be admitted if there is some showing of the trustworthiness for it

FL: follows
Hearsay: confrontation clause
requires face-to-face confrontation between the D and a witness in court

exception: when there is an importation public interest, such as protecting a child
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