FL EVIDENCE

Scope

The Florida Evidentiary Code (FEC) applies to criminal proceedings and civil actions in Florida. It can be found at FEC Section 90.101 - 90.958.

Rulings on Evidence [90.104]

The FEC provisions on rulings on evidence are similar to the federal rules. A timely objection or motion to strike must be made when evidence is admitted, stating the specific ground of objection. If evidence is excluded, the substance of the evidence must be made known to the court. Once the judge has ruled, any objection or motion to strike is saved and does not need to be raised again in court. Harmless error is determined based on whether the error affected the verdict beyond a reasonable doubt.

Preliminary Questions [90.105]

A court determines preliminary questions regarding the qualification of witnesses, existence of a privilege, or admissibility of evidence. In Florida, the judge can only consider evidence that could be admitted to the court, unlike the federal rule which allows consideration of otherwise inadmissible evidence.

Summing Up and Comment [90.106]

A judge is not allowed to sum up the evidence or comment on the weight of the evidence, credibility of witnesses, or guilt of the accused.

Limited Admissibility [90.107]

When evidence is admissible for one party or purpose but inadmissible for another, the court must restrict the evidence to its proper scope and inform the jury of the limitation at the time it is admitted. In the federal rules, the judge has discretion to give instructions at the time of admission or at the close of the trial.

Introduction of Related Writings or Recorded Statements [90.108]

When a party introduces a writing or recorded statement, the adverse party may require the introduction of any other part that should be considered contemporaneously. This rule prevents misleading the jury by taking writings or statements out of context.

Judicial Notice [90.201-90.207]

Courts must take judicial notice of certain matters, such as decisional, constitutional, and statutory law, rules of court, and certain facts that are capable of accurate determination. Judicial notice can be requested by a party and the court must afford each party a reasonable opportunity to present information relevant to the propriety of taking judicial notice. Denial of a request for judicial notice must be indicated on the record. The court may instruct the jury to accept as a fact a matter judicially noticed, but in a criminal case, the instruction cannot shift the burden of proof or establish an element of the crime solely through judicial notice.

Burdens and Presumptions [90.301-90.304]

A presumption is an assumption of fact made by the law based on other established facts. Presumptions can be rebuttable or irrebuttable. In civil actions, presumptions affecting the burden of production and the burden of proof are recognized. The party against whom a presumption operates has the burden of proof concerning the nonexistence of the presumed fact.

Relevancy and its Limits [90.401-90.403]

Relevant evidence is admissible, except as provided by law. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. Florida rules do not include the category of "undue delay and waste of time" for exclusion. Specific types of evidence, such as character evidence, have additional rules for admissibility.

Paternity Determination in Certain Criminal Prosecutions [90.4025]

In Florida, evidence of paternity is admissible in criminal prosecutions for sexual battery, unlawful sexual activity with a minor, or lewd and lascivious offenses committed upon or in the presence of persons aged less than 16 years old.

Benevolent Gestures [90.4026]

In civil cases, benevolent gestures expressing sympathy for a person's pain, suffering, or death are inadmissible to prove that a party caused the loss. Statements of fault, however, are admissible.

Character Evidence [90.405]

Character evidence is generally inadmissible to prove conformity with a particular action, except when the accused opens the door by offering evidence of their own pertinent good character trait as a defense. The prosecution may then offer character evidence to rebut the accused's character evidence, but cannot attack the defendant on that character trait.

Pertinent Character Trait

Under Florida law, the accused can offer evidence of a pertinent character trait of the victim, and the prosecution may offer character evidence on the same trait to rebut the accused's evidence. However, the prosecution cannot attack the defendant on that character trait.

Evidence of Aggressor

In a homicide case, if the accused offers evidence that the victim was the aggressor, the prosecution can present evidence of the victim's peacefulness, even if the accused did not attack the victim's character.

Method to Prove

When character evidence is admissible to show conforming conduct, only reputation evidence can be offered in Florida, not opinions or specific instances of conduct.

Victims of Sexual Battery

Testimony of the victim in a sexual battery case does not need to be corroborated.

Prior Sexual Conduct

Specific instances of prior consensual sexual activity between the victim and anyone other than the offender are generally not admissible in a prosecution for sexual battery, except in certain circumstances determined by the judge.

Evidence of Similar Crimes in Child Molestation Cases

In child molestation cases, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its relevance.

Evidence of Similar Crimes in Sexual Assault Cases

In a criminal case involving a sexual offense, evidence of the defendant's commission of other crimes, wrongs, or acts involving a sexual offense is admissible and may be considered for its relevance.

Habit

Routine Practice:Evidence of the routine practice of an organization is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.

Subsequent Remedial Measures

Evidence of subsequent remedial measures is generally not admissible to prove liability, except in certain circumstances such as ownership and control.

Compromise and Offers to Compromise

Evidence of an offer to compromise a claim or relevant conduct or statements made in negotiations concerning a compromise is generally inadmissible to prove liability or absence of liability.

Payment of Medical and Similar Expenses

Evidence of furnishing, offering, or promising to pay medical or hospital expenses or other damages caused by an injury or accident is inadmissible to prove liability for the injury or accident.

Collateral Source Rule

The collateral source rule prohibits the introduction of evidence of payments from collateral sources in the liability portion of the proceedings.

Inadmissibility of Pleas, Plea Discussions, and Related Statements

Evidence of a plea of guilty, nolo contendere, or an offer to plead guilty or nolo contendere is generally inadmissible in any civil or criminal proceeding, except in a prosecution for perjury.

Lawyer-Client Privilege

In Florida, the lawyer-client privilege is statutory and is intended to prevent the lawyer from testifying against the client. There are exceptions to the privilege, such as when the lawyer's services were sought to commit a crime or fraud.

Public Records and Meetings

The Sunshine Law:Under the Sunshine Law in Florida, meetings of boards or commissions of state agencies or authorities, as well as county, municipal, or political subdivision meetings where official acts are taken, are open to the public and communications made at these meetings are not confidential.

Fiduciary Lawyer-Client Privilege

Communications between a lawyer and a client acting as a fiduciary are privileged and protected from disclosure to the same extent as if the client were not acting as a fiduciary.

Physician and Psychotherapist-Patient Privilege

In Florida, there is no physician-patient privilege, but medical records are confidential. However, there is a psychotherapist-patient privilege that allows the patient to refuse to disclose confidential communications or records made for the purpose of diagnosing or treating their mental condition.

Marital Communication Privilege (Husband-Wife Privilege)

A privilege that allows spouses to refuse to disclose confidential communications made between them during their marriage.

Journalist Privilege

A privilege that allows professional journalists to refuse to disclose information or sources obtained while actively gathering news.

Sexual Assault Counselor-Patient Privilege

A privilege that allows victims of sexual assault to refuse to disclose confidential communications made to a sexual assault counselor or trained volunteer.

Domestic Violence Advocate-Victim Privilege

A privilege that protects confidential communications made by domestic violence victims to a domestic violence advocate.

Human Trafficking Victim Advocate-Victim Privilege

A privilege that allows human trafficking victims to refuse to disclose confidential communications made to a human trafficking victim advocate or trained volunteer.

Religious Privilege

A privilege that allows individuals to refuse to disclose confidential communications made to a member of the clergy in their capacity as a spiritual adviser.

Accountant-Client Privilege

A privilege that allows clients to refuse to disclose confidential communications made with an accountant for the purpose of obtaining accounting services.

Trade Secrets Privilege

A privilege that allows the owner of a trade secret to refuse to disclose the trade secret, as long as doing so will not conceal fraud or work injustice.

Privileged Communication Necessary to Adverse Party

A privilege that allows a party to refuse to disclose a communication necessary to an adverse party in a civil case or proceeding.

Accident Report Privilege

A privilege that protects statements made by individuals involved in a car crash to the police for the purpose of completing a crash report.

Waiver of Privilege by Voluntary Disclosure

The act of voluntarily disclosing or making a communication that waives the privilege against the disclosure of a confidential matter or communication.

Competency of Judge or Juror as Witness

The rule that states a judge is generally incompetent to testify as a witness in a trial over which they are presiding, and a juror is generally not competent to testify as a witness in a trial when they are sitting as a juror.

Impeachment

The act of attacking the credibility of a witness through various means, such as introducing inconsistent statements, showing bias, attacking character, or introducing proof of prior convictions.

Evidence of Character and Conduct of Witness

The rule that allows the credibility of a witness to be attacked or supported by reputation evidence only, specifically relating to character for truthfulness.

Impeachment by Evidence of Conviction of Crime

Evidence that a witness has been convicted of a crime, punishable by death or imprisonment exceeding one year, or involving dishonesty or false statement, can be used to attack the witness's credibility.

Religious Beliefs or Opinions

Evidence of a witness's beliefs or opinions on matters of religion cannot be used to determine the witness's credibility.

Mode and Order of Interrogation and Presentation

Special care should be taken when questioning child witnesses under the age of 14.

Writing Used to Refresh Memory

If a witness uses a writing or item to refresh their memory while testifying, it must be provided to the opponent, who can inspect, cross-examine, and introduce relevant portions of the writing/item.

Prior Statements of Witnesses

In Florida, the witness must be shown the statement or its contents, and extrinsic evidence of a prior inconsistent statement is admissible if the witness is given an opportunity to explain or deny it.

Calling Witnesses by the Court

The court has the authority to call witnesses for cross-examination, and may interrogate witnesses when required by the interests of justice.

Exclusion of Witnesses

Upon request, the court can order witnesses to be excluded from a proceeding, except for the victim or victim's next of kin in a criminal case, unless it is found to be prejudicial.

Opinion Testimony of Lay Witnesses

Lay witnesses can provide testimony in the form of inference and opinion if they cannot readily communicate their perception without using inferences or opinions, and it will not mislead the trier of fact.

Testimony by Experts

An expert witness can testify if their opinion is based on sufficient facts or data, the principles and methods used are reliable, and they have applied them reliably to the case.

Basis of Opinion Testimony by Experts

An expert can base their opinion on facts or data perceived or made known to them at or before trial, as long as they are of a type reasonably relied upon by experts in the subject.

Opinion on Ultimate Issue

In Florida, experts are allowed to testify as to the ultimate issue at trial.

Disclosure of Facts or Data Underlying Expert Opinion

Unless otherwise required by the court, an expert can testify without prior disclosure of the underlying facts or data, but may be required to specify them on cross-examination.

Authoritativeness of Literature for use in Cross-examination

Statements of facts or opinions in published writings can be used to cross-examine an expert witness, but not to bolster their credibility.

Court-Appointed Experts

While Florida does not have a specific rule for court-appointed experts, other statutes allow for the appointment of experts in certain situations.

Hearsay Defined

Hearsay is a statement made by a human declarant, other than one made while testifying at trial, offered to prove the truth of the matter asserted.

Hearsay Exemptions

Statements inconsistent with a declarant's testimony given under oath, consistent with the declarant's testimony to rebut a charge of improper influence, or for identification purposes are not considered hearsay.

Present Sense Impression

Spontaneous statements describing or explaining an event or condition made while perceiving it or immediately thereafter are admissible, unless circumstances indicate lack of trustworthiness.

Excited Utterance

Statements made under the influence of excitement or shock caused by an event are admissible.

Then Existing Mental, Emotional, or Physical Condition

Statements about a declarant's state of mind, emotion, or physical sensation, including intent, plan, motive, or design, are admissible if relevant to the action or to explain subsequent conduct.

Statements for Purposes of Medical Diagnosis or Treatment

Statements made for medical diagnosis or treatment, describing medical history, symptoms, or sensations, are admissible.

Recorded Recollection

A memorandum or record made by a witness when the matter was fresh in their memory, reflecting their knowledge correctly, can be admitted if the witness has insufficient recollection to testify accurately.

Records of Regularly Conducted Activity

Records of regularly conducted business activity can be admitted if kept in the course of business, but opinions or diagnoses within the records require expert testimony.

Written notice

Notice required to be given in writing to the opponent.

Public Records and Reports

Records, reports, statements reduced to writing, or data compilations of public offices or agencies that set forth their activities or matters observed pursuant to duty imposed by law are admissible unless lack of trustworthiness is shown.

Market Reports, Commercial Publications

Market quotations, tabulations, lists, directories, or other published compilations used and relied upon by the public or persons in particular occupations are admissible if the court finds the sources of information and method of preparation justify their admission.

Learned Treatises

In Florida, learned treatises cannot be used to prove the truth of the matter asserted, but they can be used in cross-examination of an expert witness.

Party-Opponent Admissions

Admissions by a party opponent are admissible as a hearsay exception, regardless of the availability of the declarant.

Former Testimony

Former testimony given by a declarant in another hearing or deposition is admissible if the party against whom it is offered had an opportunity to develop the testimony and the court finds it relevant and not prejudicial.

Statement of Child Victim

In civil or criminal cases, a statement made by a child victim describing acts of sexual abuse or unlawful acts is admissible if the child is 16 years old or younger and the court finds the statement reliable.

Statement of Elderly Person or Disabled Adult

Similar to statements of child victims, statements made by elderly persons or disabled adults are admissible in civil or criminal cases if the court finds the statement reliable.

Judgment of Previous Conviction

Unlike the federal rules, evidence of a final judgment of previous conviction is not admissible in Florida.

Judgment as to Personal, Family, or General History, or Boundaries

Judgments as proof of personal, family, or general history or boundaries are not admissible in Florida.

Other Hearsay

Various hearsay exceptions in Florida, such as absence of entry in business records, records of vital statistics, reputation as to character, etc., are identical to the federal rules.

Hearsay Within Hearsay

Hearsay within hearsay is admissible in Florida if each part of the combined statements conforms to an exception to the hearsay rule.

Attacking and Supporting Credibility of Declarant

In Florida, the credibility of a declarant of a hearsay statement may be attacked and supported by any evidence that would be admissible if the declarant had testified as a witness.

Residual Exception

Florida does not have a residual hearsay exception, meaning statements not falling within a stated exception may not be admitted.

Requirement of Authentication or Identification

Evidence in Florida must be authenticated or identified before it can be admitted, requiring evidence supporting a finding that the matter in question is what its proponent claims.

Self-Authentication

Self-authentication of evidence in Florida follows the same rules as the federal rules.

Testimony of Subscribing Witness Unnecessary

In Florida, the testimony of a subscribing witness is not necessary to authenticate a writing unless required by statute.

Photographs of Property Wrongfully Taken

In Florida, photographs of property alleged to have been wrongfully taken are admissible in prosecutions for crimes involving wrongful taking, provided they meet certain requirements.

Handwriting

Non-expert testimony on the genuineness of handwriting is admissible in Florida, as long as it does not come from preparation for litigation.

Requirement of Originals

In Florida, an original writing, recording, or photograph is generally required to prove its contents, unless otherwise provided by statute.

Admissibility of Duplicates

Duplicates are admissible in Florida to the same extent as originals, unless there are authenticity concerns or it would be unfair to admit the duplicate instead of the original.

Admissibility of Other Evidence of Contents

Other evidence of the contents of a writing, recording, or photograph is admissible in Florida when the original is lost, cannot be obtained, was under the control of the opposing party, or is not related to a controlling issue.

Public Records

Public records in Florida are admissible under the same rules as the federal rules.

Official Record

The contents of a document that has been authorized to be recorded or filed with a governmental agency and is considered a legal record.

Copy Authentication

The process of verifying the authenticity of a copy of an official record or document, making it admissible as evidence.

Admissibility

The quality or state of being allowed or accepted as evidence in a court of law.

Summaries

In Florida, when it is not practical to present voluminous writings, records, or photographs in court, a party may use a chart, summary, or calculation to present the information through a qualified witness.

Notice Requirement

In Florida, the party intending to use a summary must provide timely written notice of their intention to use the summary, along with proof filed with the court. The summary and the originals or duplicates of the data used to create the summary must be made available for examination or copying by other parties.

Functions of Court and Jury

In Florida, the court determines the existence of a preliminary fact that affects the admissibility of evidence. The trier of fact (jury) determines whether the asserted writing existed, whether a presented writing is the original, and whether other evidence correctly reflects the contents. This rule is similar to the federal rule.