FL EVIDENCE
1. Scope
The Florida Evidentiary Code (FEC) can be found at FEC Section 90.101 - 90.958.
All section references in these notes are to provisions in the Florida statutes.
The FEC applies to criminal proceedings and civil actions.
2. Rulings on Evidence [90.104]
The FEC provisions on rulings on evidence are substantially the same as the federal rules.
Look for a substantial right of the party that has been adversely affected and:
when the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or
when the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.
As in the federal system, once the judge has definitively ruled, any objection or motion to strike has been saved and you do not have to raise it again in court.
Harmless Error
The federal rules look for harmless error in two categories: non-constitutional and constitutional errors. There is a different test for each.
In Florida, however, there is no such distinction and the same standard of review applies regardless of the type of error.
The burden is on the state to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or that there is no reasonable possibility that the error contributed to the conviction.
If the court can say beyond a reasonable doubt that the error did not affect the verdict then the error is harmless.
3. Preliminary Questions [90.105]
A court determines preliminary questions concerning:
the qualification of witnesses;
the existence of a privilege; or
the admissibility of evidence.
However, whereas a federal judge can consider otherwise inadmissible evidence like hearsay documents when making that decision, a Florida judge has to consider only evidence that could be admitted to the court.
This is a limitation on the power of the Florida judge that is different from the limitation on the power of the federal judge.
4. Summing Up and Comment: A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused [90.106].
5. Limited Admissibility [90.107]
When evidence that is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose, is admitted, the court, upon request, must restrict such evidence to its proper scope and inform the jury of the limitation at the time it is admitted.
Under the federal rules, the judge has discretion to instruct at the time it is admitted or at the close of the trial with the general jury instructions.
6. Introduction of Related Writings or Recorded Statements [90.108]
When a writing or recorded statement or part of such writing or recorded statement is introduced by a party, an adverse party may require him at the time to introduce any other part of any other writing or recorded statement that in fairness ought to be considered contemporaneously.
This parallels the federal rule of completeness, otherwise known as the doctrine of completeness. This rule prevents misleading of the jury about the content of writings or recorded statements by taking them out of context.
NOTES:
JUDICIAL NOTICE
1. Matters for Judicial Notice
Mandatory: In Florida, a court must take judicial notice of [90.201]:
decisional, constitutional, and public statutory law and resolutions of the Florida legislature and the U.S. Congress;
Florida rules of court that have statewide application, its own rules, and the rules of U.S. courts adopted by the U.S. Supreme Court; and
rules of court of the U.S. Supreme Court and U.S. Courts of Appeal.
Permissive: Florida courts may also take judicial notice of facts that are not subject to dispute because they are capable of accurate and ready determination by resorting to sources whose accuracy cannot be questioned [90.202].
The permissive category becomes mandatory when [90.203]:
requested by a party;
written notice is filed; and
sufficient information is provided to the court.
Upon request of a party, a court may take judicial notice of an image, map, location, distance, calculation, or other information taken from a widely accepted web mapping service, global satellite imaging site, or Internet mapping tool, if such image, map, location, distance, calculation, or other information indicates the date on which the information was created [90.2035].
Court Determination Whether to Take Notice [90.204]
When a court determines upon its own motion that judicial notice of a matter should be taken or when a party requests such notice and shows good cause for not complying with the notice requirements, the court must afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.
In determining the propriety of taking judicial notice, a court may use any source of pertinent and reliable information, whether or not furnished by a party, without regard to any exclusionary rule except a valid claim of privilege or on the grounds of prejudice or confusion.
If the court relies on information not presented in open court, the court must afford each party a reasonable opportunity to challenge the information and offer additional information before it takes judicial notice of the matter.
NOTES:
After judicial notice is taken:
Civil case: The court has discretion to permit evidence to rebut.
Criminal case: The court must permit evidence to rebut.
Denial of a Request for Judicial Notice: Upon request of counsel, when a court denies a request to take judicial notice of any matter, the court shall inform the parties at the earliest practicable time and shall indicate for the record that it has denied the request [90.205].
The failure or refusal of a court to take judicial notice of a matter does not preclude a court from taking judicial notice of the matter in subsequent proceedings [90.207].
2. Instruction to Jury
The court may instruct the jury during the trial to accept as a fact a matter judicially noted [90.206].
The trial judge has the discretion to give the jury a conclusive or permissive instruction and determine whether to permit the introduction of evidence disputing the permitted fact.
If it is a criminal case, the most that an instruction regarding judicial notice can do is establish the prima facie case.
It cannot shift the burden of proof or establish an element of the crime solely through the process of judicial notice.
This reflects the federal rule that in a civil action or proceeding, a court may instruct the jury to accept as conclusive any fact judicially noticed but that, in a criminal case, the court must instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
NOTES:
BURDENS AND PRESUMPTIONS
EXAM TIP: Presumptions and judicial notice are commonly tested topics on the Florida Bar Exam.
1. In General
A presumption is an assumption of fact that the law makes from the existence of other facts found or established [90.301]. Typically, it changes the burden of persuasion.
A presumption is a procedural device that shifts the burden to the opposing party. A presumption may be defined as an inference that may be drawn when one set of facts (basic facts) establishes a very high probability of the existence of another set of facts (ultimate or presumed facts), absent a contrary showing.
Upon introduction of this contrary evidence, the presumption disappears at this point and the burden of persuasion shifts back to the original party.
Unless presumptions are conclusive under the law from which they arise, presumptions are rebuttable [90.301].
The FRE provision on presumptions is much simpler than the Florida provision.
2. Presumptions in Civil Actions and Proceedings
As is the case under the federal rule, presumptions are only applicable in civil actions or proceedings [90.301].
Drawing appropriate inferences are permitted.
There are two types of presumptions:
Rebuttable: The presumed fact is assumed as true until proven otherwise (offers counter-proof).
Most presumptions are rebuttable unless the statute says it is a conclusive presumption.
Irrebuttable: The trier of fact must accept the fact as true (no counter-proof permitted).
Civil cases only - NOT permitted in criminal cases.
There are two types of rebuttable presumptions [90.302]:
presumptions affecting the burden of production;
A presumption as to the burden of production requires the trier of fact to assume the existence of the presumed fact unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event: the existence or nonexistence of the presumed fact is determined from the evidence without regard to the presumption.
NOTES:
presumptions affecting the burden of proof (or persuasion).
A presumption affecting the burden of proof imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.
EXAMPLE: A party presents evidence that a child was born to a woman while she was married and cohabiting with her husband. The judge instructs the jury that they must find that the husband is the father of the child unless the party opposing this evidence convinces them that the husband is not the father of the child.
In a civil action, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence [90.303].
Otherwise, all rebuttable presumptions are presumptions affecting the burden of proof (persuasion) [90.304].
NOTES:
RELEVANCY AND ITS LIMITS
1. Relevancy Generally
Florida is much like the Federal Rules in FRE 401-403. But there are some differences.
Relevance: Relevant evidence is evidence tending to prove or disprove a material fact [90.401].
Admissibility of Relevant Evidence: All relevant evidence is admissible, except as provided by law [90.402].
Exclusion of Relevant Evidence (Balancing): Relevant evidence is inadmissible 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 [90.403].
The Federal Rules have an additional category in 403 called “undue delay and waste of time.” Florida Rules omit this category.
In Florida you can argue that “undue delay and waste of time” falls into the category of “misleading the jury” or “needless presentation of cumulative evidence.”
Paternity Determination in Certain Criminal Prosecutions [90.4025]
There is no comparable federal rule.
In Florida, if a person under 18 years of age gives birth to a child and the paternity of that child is established, such evidence of paternity is admissible in criminal prosecutions for sexual battery, unlawful sexual activity with a minor, or lewd and lascivious offense committed upon or in the presence of persons aged less than 16 years old.
Benevolent Gestures [90.4026]
There is no comparable federal rule.
Applies to civil cases only.
A benevolent gesture is an expression of sympathy. They can relate to a person’s pain, suffering, or death of a loved one in relation to an accident.
These gestures are inadmissible to prove that a party caused the loss.
By contrast, statements of fault are admissible.
HYPOTHETICAL: Defendant is sued for wrongful death by a family. Defendant sent a floral wreath to the funeral with a note saying, “I am so sorry for the pain I have caused all of you. Please forgive me. I should never have driven while so drunk.” Are these statements admissible?
The trick is to sever the statements. “I should have never driven while so drunk” would be severable and it would be admissible. “I am so sorry for the pain I have caused all of you” would not be admissible as evidence of guilt. “Please forgive me” is sufficiently vague that it also would not be severable.
NOTES:
2. Admissibility of Specific Types of Evidence
Character Evidence
Why is it being offered? CE will be offered for one of three purposes - I.C.E. mnemonic
Impeachment
Conformity
Element
If admissible, how may it be offered? (What method?)
Reputation
Specific instances of conduct
Florida does NOT permit opinion evidence.
Element Character Evidence: When character is at issue; where character is an essential element of a cause of action, claim, or defense.
Limited application: There are only a few specific civil causes of action (and one criminal defense) where character is in issue (triggers to be reading for) Mnemonic “Darn N.I.C.E.”
Recall from the MBE lecture, the mnemonic stands for: Defamation; Negligent entrustment, hiring, supervision; Immigration; Child Custody; and Entrapment.
Method to Prove: If admissible because character is at issue in the trial, it may be offered in the form of reputation or specific instances of conduct only. Unlike the FRE, opinion evidence is not permitted [90.405].
Character Evidence NOT Admissible to Prove Conforming Conduct [90.404]
Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:
Just like in the Federal Rules, the accused holds the key to opening the door to use of character evidence. There are some differences however as to how wide the door opens.
Like under the FRE, in Florida, the accused can offer evidence of their own pertinent good character trait as a defense, and on rebuttal, the prosecution may offer character evidence on the same character trait of the accused to rebut the accused’s “good” character evidence. The prosecution cannot attack the defendant on that character trait [90.404(1)(a)].
Like under the FRE, in Florida, the accused can offer evidence of a pertinent character trait of the victim, and on rebuttal, the prosecution may offer character evidence on the same character trait of the victim to rebut the accused’s bad character evidence. However, unlike under the FRE, in Florida the prosecution cannot attack the defendant on that character trait [90.404(1)(b)].
NOTES:
Like under the FRE, in Florida, in a homicide case when the accused offers evidence that the victim was the aggressor, this opens the door to the prosecution to present evidence of a character trait of peacefulness of the victim, even if the accused did not attack the victim’s bad character [90.404(1)(c)].
Method to Prove: When character evidence is admissible to show conforming conduct under the above exceptions, unlike the FRE, in Florida, only reputation evidence can be offered, not opinions or specific instances of conduct [90.405(1)].
Sexual Conduct
Victims of Sexual Battery [794.022]
Testimony: The testimony of the victim need not be corroborated in a prosecution for sexual battery.
Prior Sexual Conduct
Specific instances of prior consensual sexual activity between the victim and any person other than the offender may not be admitted into evidence in a prosecution for sexual battery.
There are exceptions. In Florida, the judge will conduct an in camera proceeding, and the judge must determine that the evidence is for the purpose of showing:
that the defendant was not the source of the semen, pregnancy, injury, or disease; or
when consent by the victim is at issue, it tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.
Note that FRE 412 generally prohibits evidence offered to prove that an alleged victim engaged in other sexual behavior, or to show any victim’s sexual predisposition, with exceptions for criminal and civil proceedings.
Reputation evidence relating to the victim’s prior sexual conduct or evidence presented for the purpose of showing that manner of dress of the victim at the time of the offense incited the sexual battery is not admissible.
Consent: If the victim has a mental incapacity or defect, the prosecution can use evidence of that to show that the consent to the activity was not knowing, intelligent, or voluntary.
NOTES:
Evidence of Similar Crimes, Wrongs, or Acts in Child Molestation Cases
As is provided under the federal rules, in Florida, 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 bearing on any matter to which it is relevant [90.404(2)(b1)].
Child molestation means sexual battery, lewd and lascivious offense committed upon or in the presence of persons aged less than 16 years old, or certain computer transmissions with sexual content knowingly viewed by a person aged less than 16 years old when committed against a person 16 years of age and younger.
Under the federal rules the relevant age is 14 years.
Under the federal rule, evidence of uncharged child molestation is admissible if the prosecution provides enough evidence to support a finding by a preponderance of the evidence.
However, in Florida, a court must find by clear and convincing evidence that the defendant committed the bad act.
To use this type of propensity evidence in Florida, 10-days notice is required, describing the prior conduct with particularity. In addition, there is a limiting instruction at the time of admission (if requested) and at the closing of the case.
Evidence of Similar Crimes in Sexual Assault Cases
In a criminal case in which the defendant is charged with 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 bearing on any matter to which it is relevant [90.404(2)(c1)].
To use this type of propensity evidence in Florida, 10-days notice is required, describing the prior conduct with particularity. In addition, there is a limiting instruction at the time of admission (if requested) and at the closing of the case.
Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
Florida does not have a comparable rule to FRE 415 for civil cases.
NOTES:
HYPOTHETICAL: Defendant is prosecuted for indecent exposure on a bus. May the judge allow evidence of indecent exposure in various places in the past? Of acts of incest by defendant with his mother 9 years before?
Whom did D expose himself to? Children or adults? Let us assume it’s a school bus and he’s done it in the past. This information would be admissible under propensity or 403 “balancing test.” The evidence of past incest with D’s mother would probably not be admissible in Florida from a proof perspective even though it might be admissible under federal rules.
3. “Character Evidence Look-A-Likes”
M: Motive
I: Intent
M: Absence of Mistake
I: Identity (sometimes called modus operandi, handiwork or signature)
C: Common Scheme or Plan
Plus: Knowledge, Opportunity, Preparation, Lack of Accident
Other Crimes, Wrongs, or Acts (MIMIC evidence) [90.404(2)(a)]
Under the non-character theory of relevancy, a party will offer evidence of a character trait not to prove character, but to prove an exception that explains why someone did something.
In Florida, in order to admit evidence under section 90.404(2)(a), the charged offense and the collateral offense must meet a similarity requirement to be relevant.
When relevancy is to show absence of mistake or accident, the collateral offense must be “strikingly similar” and must share some “unique characteristic or combination of characteristics” that sets them apart.
EXAMPLE: If a criminal always burglarizes houses in the same unique way, by clogging the sinks in the course of the crime, evidence of that prior conduct will probably be admissible.
Florida requires clear and convincing evidence.
To use this type of evidence in Florida, 10-days notice is required, describing the prior conduct with particularity. In addition, there is a limiting instruction at the time of admission (if requested) and at the closing of the case.
Notice is not required when used for impeachment or on rebuttal.
Habit: Routine Practice [90.406]
Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.
NOTES:
There is case law that will allow habit evidence for individuals if the judge determines its probative value.
4. Public Policy Exclusions
Subsequent Remedial Measures [90.407]
The Florida rule is almost identical to the federal rule, but it does allow proof for other purposes such as ownership and control when ownership and control have otherwise been denied.
EXAMPLE: Plaintiff sues defendant for injuries sustained falling on defendant’s staircase. Plaintiff cannot try to show that the staircase was defective by evidence that the day after the accident, defendant replaced the staircase.
In federal courts, the rule does not apply to measures undertaken by a third party who is not the defendant.
Florida follows a narrower approach in that remedial measures undertaken by a third party may be admissible to shift blame to the third party and not to show negligence or culpable conduct on the part of the defendant.
Compromise and Offers to Compromise [90.408]
In Florida, evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.
The federal rules also bar such use to impeach through a prior inconsistent statement or contradiction. This is not necessarily the case in Florida. A judge decides based upon the circumstances.
Payment of Medical and Similar Expenses [90.409]
Evidence of furnishing, or offering or promising to pay, medical or hospital expenses or other damages occasioned by an injury or accident is inadmissible to prove liability for the injury or accident.
This can be severed similar to the benevolent gestures rule.
Collateral Source Rule
The collateral source rule prohibits the introduction of any evidence of payments from collateral sources in the liability portion of the proceedings.
The rule is in place to prevent misleading of the jury by, for instance, leading the jury to believe that the plaintiff has already been sufficiently compensated, which has no place in the liability phase.
NOTES:
Inadmissibility of Pleas, Plea Discussions, and Related Statements [90.410]
In Florida, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with such pleas or offers is also inadmissible, except when such statements are offered in a prosecution under chapter 837 (perjury).
The Florida rule differs from the federal rule in that in Florida we look at all the statements made (applies to statements made to the prosecutor and police).
In the federal rules it is not admissible against the defendant, but it may be admissible against another individual or co-conspirator. That is not the case in Florida.
Liability Insurance
Florida does not have a rule equivalent to FRE 411 (but is in common law), which states that evidence that a person was or was not insured against liability is not admissible as to whether the person acted negligently or wrongfully but is for other purposes.
NOTES:
PRIVILEGES
1. In General
FEC 90.501 states that, except as otherwise provided in the FEC itself, other statutes, or the U.S. or Florida Constitutions, a person does not have a privilege to:
refuse to be a witness;
refuse to disclose any matter;
refuse to produce any object or writing; or
prevent another from doing any of the above.
2. Lawyer-Client Privilege
Unlike federal law where the lawyer-client privilege is a common law privilege, in Florida, the lawyer-client privilege is statutory.
Unlike confidentiality rules, the purpose of the privilege is to prevent the lawyer from testifying against the client.
A lawyer may only claim this privilege if he or she is claiming it on behalf of the client.
There is no lawyer-client privilege under 90.502 when:
The services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.
A communication is relevant to an issue between parties who claim through the same deceased client.
A communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.
A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.
A communication is relevant to a matter of common interest between two or more clients, or their successors in interest, if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients or their successors in interest.
Public Records and Meetings: The Sunshine Law
In Florida, under the Sunshine Law, all meetings of any board or commission of any state agency or authority or of a county, municipal corporation, or political subdivision at which official acts are to be taken are open to the public at all times. The minutes of a meeting must be promptly recorded, and the records open to public inspection [286.011].
NOTES:
Thus, communications made at these meetings are not confidential and do not give rise to attorney-client privilege.
Fiduciary Lawyer-Client Privilege [90.5021]
A communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure to the same extent as if the client were not acting as a fiduciary. In applying this privilege to a communication under this section, only the person or entity acting as a fiduciary is considered a client of the lawyer.
3. Physician and Psychotherapist-Patient Privilege
Physician-Patient
Florida does not have a physician-patient privilege. Instead, we say that it is confidential, not privileged.
By statute, medical records and the medical condition of a patient may not be discussed with any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient [456.057].
However, such records may be furnished without authorization upon the issuance of a subpoena in a civil or criminal action if proper notice is given to the patient and the patient’s legal representative by the person seeking the records.
Thus, although medical records are confidential, there is no evidentiary privilege.
Psychotherapist-Patient [90.503]
The patient can refuse to disclose and prevent any other person from disclosing confidential communications or records made for the purpose of diagnosing or treating your mental condition. This includes alcoholism and drug addictions that are discussed between you and your psychotherapist.
The privilege may be claimed by:
The patient or the patient’s attorney on the patient’s behalf.
A guardian or conservator of the patient.
The personal representative of a deceased patient.
The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.
There is no privilege:
For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.
NOTES:
For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense
4. Marital Communication Privilege (Husband-Wife Privilege) [90.504]
The privilege provided through the federal common law allows for the spousal communication privilege (or confidential marital communication privilege). However, Florida does not have a spousal testimony privilege (or spousal immunity).
In Florida, a spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were married.
The privilege may be claimed by either spouse or by the guardian or conservator of a spouse.
The privilege does not apply:
in a proceeding brought by or on behalf of one spouse against the other;
in a criminal proceedings in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either spouse; and
in a criminal proceeding in which the communication is offered by a defendant spouse who is one of the spouses between whom the communication was made.
Note that, unlike under the federal common law, the FEC does not include a joint participant’s exception, which provides an exception when the spouses have jointly participated in a crime.
5. Journalist Privilege [90.5015]
Professional journalists have a privilege not to disclose and not to be a witness concerning the information that the professional journalist has obtained while actively gathering news. This privilege extends to the identity of any source.
This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to:
physical evidence;
eyewitness observations; or
visual or audio recording of crimes.
NOTES:
The privilege is qualified and can be overcome by showing that:
the information is relevant and material to unresolved issues;
the information cannot be obtained from an alternative source; and
a compelling interest exists for requiring disclosure.
A professional journalist does not waive the privilege by publishing or broadcasting information.
Authentication may be required.
Note that there is no federal equivalent and that treatment of this issue in federal courts has been dealt with by applying First Amendment analysis.
6. Sexual Assault Counselor-Patient Privilege [90.5035]
Victims of sexual assault or sexual battery have a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a sexual assault counselor or trained volunteer.
The counseling session is confidential, but the victim may also claim the privilege to prevent them from testifying or allowing the information to be disclosed.
Such confidential communication or record may be disclosed only with prior written consent of the victim.
This privilege may be claimed by the victim or the victim’s attorney on the victim’s behalf, a guardian, conservator, personal representative (if the victim is deceased), and the sexual counselor or trained volunteer on the victim’s behalf.
Florida created a test for disclosure that requires an in camera review by the judge. Must show a reasonable probability that the privileged matter contains information that is necessary to the defense.
There is no equivalent federal privilege.
7. Domestic Violence Advocate-Victim Privilege [90.5036]
Florida also has a domestic violence advocate-victim privilege that protects confidential communications made by the victim to a domestic violence advocate or any record made in the course of advising, counseling, or assisting the victim so long as the advocate was properly registered at the time the communication was made.
Disclosure is allowed to the extent it is necessary to accomplish the purpose for which the domestic violence consultant has been raised.
In all other respects, the privilege is similar to that between a sexual assault counselor and victim of sexual assault or sexual battery.
There is no equivalent federal privilege.
NOTES:
8. Human Trafficking Victim Advocate-Victim Privilege [90.5037]
A human trafficking victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the human trafficking victim to a human trafficking victim advocate or trained volunteer or a record made in the course of advising, counseling, or providing services to the human trafficking victim.
Such confidential communication or record may be disclosed only with the prior written consent of the human trafficking victim. This privilege includes any advice given by the human trafficking victim advocate or trained volunteer to the human trafficking victim in the course of that relationship.
The privilege may be claimed by:
The human trafficking victim or the human trafficking victim’s attorney on his or her behalf.
The guardian or conservator of the human trafficking victim.
The personal representative of a deceased human trafficking victim.
The human trafficking victim advocate or trained volunteer, but only on behalf of the human trafficking victim. The authority of a human trafficking victim advocate or trained volunteer to claim the privilege is presumed in the absence of evidence to the contrary
9. Religious Privilege [90.505]
This privilege does not exist in the federal rules, but has been recognized in the common law.
In Florida, a person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.
The privilege may be claimed by the person, a guardian, conservator, personal representative, and the member of the clergy on behalf of the person.
10. Accountant-Client Privilege [90.5055]
A person who consults an accountant for the purpose of obtaining accounting services has a privilege to refuse to disclose, or to prevent another person from disclosing the contents of confidential communications with an accountant, when such other person learned of the communications because they were made in the rendition of accounting services to the client.
A communication between an accountant and the client is confidential if it is not intended to be disclosed to third persons.
NOTES:
There is no privilege when:
the accountant’s services were sought or obtained to enable or aid anyone to commit or plan to commit when the client knew or should have known was a crime or fraud;
a communication is relevant to an issue of breach of duty by the account to the client or by the client to the accountant; or
a communication is relevant to a matter of common interest between two or more clients, if the communication was made by any of them to an accountant retained or consulted in common when offered in a civil action between the clients.
Federal courts have consistently refused to recognize this privilege.
11. Trade Secrets Privilege [90.506]
The owner of a trade secret has a privilege to refuse to disclose, and to prevent others from disclosing, the trade secret if doing so will not conceal fraud or otherwise work injustice.
If the court directs disclosure, it must take protective measures that the interests of the holder of the privilege, the interest of the parties, and the furtherance of justice require.
The privilege may be claimed by the person or the person’s agent or employee.
There is no equivalent federal rule regarding trade secrets. However, federal courts have recognized a qualified evidentiary privilege for trade secrets.
12. Privileged Communication Necessary to Adverse Party [90.510]
In a civil case or proceeding in which a party claims a privilege as to a communication necessary to an adverse party, upon motion, the court may dismiss the claim for relief or the affirmative defense to which the privileged testimony relates.
The court has the ability to conduct an in camera inquiry of the privileged communication in making its determination.
No comparable federal rule.
13. Accident Report Privilege [316.066(4)]
Statements made by person involved in a car crash to police to complete a crash report are privileged (civil and criminal).
But in a criminal case, police may disclose a person’s statements unless the person’s 5th Amendment rights were violated.
No comparable federal rule.
NOTES:
14. Disclosure of Privileged Matter
Waiver of Privilege by Voluntary Disclosure [90.507]
A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person’s predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.
This is not applicable when the disclosure is itself a privileged communication.
Under Compulsion or Without Opportunity to Claim Privilege [90.508]
Evidence of a statement or other disclosure of privileged matter is inadmissible against the holder of the privilege if the statement or disclosure was compelled erroneously by the court or made without opportunity to claim the privilege.
NOTES:
WITNESSES
1. In General
Every person is competent to be a witness, except as otherwise provided by statute [90.601].
Disqualification: This section prevents incapable people from testifying, and is similar to the federal rule on competence [90.603].
Lack of Personal Knowledge: Florida’s rule regarding lack of personal knowledge is identical to the federal rule [90.604].
Oath or Affirmation [90.605]
In Florida, the oath is specific and must be delivered in a specific fashion.
“Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth?”
A child can testify without taking the oath, if the court can determine that the child understands the duty not to lie.
Interpreters [90.606, 90.6063]
The federal rules governing interpreters are very simple—the rules simply state that an interpreter must meet the qualifications of an expert witness and be administered an oath or affirmation to make a true translation.
In contrast, Florida lays out very detailed rules governing interpreters and translators for a person who does not hear or understand English or cannot express themself in English sufficiently to be understood (whether because they speak another language or they are mentally or developmentally disabled) and for interpreters for deaf persons.
In Florida, an interpreter must take an oath that he or she will make a true interpretation of the questions asked and answers given and that the interpreter will make a true translation into English of any writing that he or she is required by his or her duties to decipher or translate.
An interpreter for deaf persons must make an oath or affirmation that they will make a true interpretation in an understandable manner to the deaf person for whom the interpreter is appointed and that he or she will repeat the statements of the deaf person in the English language to the best of their skill and judgment.
Whenever a deaf person communicates through an interpreter to any person under such circumstances that the communication would be privileged, and the recipient of the communication could not be compelled to testify as to the communication, this privilege shall apply to the interpreter.
NOTES:
Competency of Judge or Juror as Witness [90.607]
Judge: In Florida, as under the federal rules, a judge is incompetent to testify as a witness in a trial over which he or she is presiding, unless the judge will give evidence on a purely formal matter. The federal rules contain no such exception.
Jurors: Generally, a member of the jury is not competent to testify as a witness in a trial when he or she is sitting as a juror. In addition, upon an inquiry into the validity of a verdict or indictment, as in the federal rules, a juror may not testify as to a matter of internal deliberations.
Generally, you can’t call a juror as a witness to “impeach the verdict” (the deliberative process), unless something occurred that was improper.
EXAMPLE: Jurors decide to cast lots, roll dice, or raise the issue of racial discrimination against the defendant.
2. Impeachment
Evidence which attacks the believability of a witness. If a person has not testified, you cannot impeach them.
Rehabilitation (support): Evidence which detracts from an attack on the believability of a witness. Admissible only after the witness was impeached. No bolstering.
Who May Impeach [90.608]
Any party, including the party calling the witness, may attack the credibility of a witness by:
introducing statements of the witness that are inconsistent with the witness’s present testimony;
showing that the witness is biased;
attacking the character of the witness;
showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified;
introducing proof by other witnesses that material facts are not as testified to by the witness being impeached; or
by evidence that the witness has been convicted of a crime.
NOTES:
In Florida, use the mnemonic: Two Eyes For Seeing (I2, C4)
I = (Prior) Inconsistent Statement
I = Interest, motive, or bias
C = Character evidence for truthfulness by reputation only
C = Capacity to observe, recall, or relate information
C = Contradiction
C = (Prior) Conviction of crime
Collateral Matters
If it is a collateral matter, the cross-examiner must "take" the answer, is bound by it, and may not subsequently impeach the witness by introducing extrinsic evidence to contradict the witness on that point.
If it is a non-collateral matter, an adverse party may introduce extrinsic evidence to contradict testimony of a witness made on direct examination.
In Florida, if one party creates an improper inference, the other side can produce extrinsic evidence to rebut it.
Evidence of Character and Conduct of Witness [90.609]
The federal rule allows the credibility of witness to be attacked not only by reputation evidence, but by opinion evidence and, on cross-examination, by specific instances of conduct of the witness [FRE 608]. The Florida rule is narrower.
In Florida, a party may attack or support the credibility of a witness, including the accused, by reputation evidence only.
However, the evidence may refer only to character relating to truthfulness.
Moreover, evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence.
Impeachment by Evidence of Conviction of Crime [90.610]
Think - Prior Conviction of Crime
A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of one year or if the crime involved dishonesty or a false statement regardless of the punishment.
However, it is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.
The pendency of an appeal or the granting of a pardon relating to such crime does not render evidence of the conviction from which the appeal was taken or for which the pardon was granted inadmissible. Evidence of the pendency of the appeal is admissible.
NOTES:
Juvenile adjudications are inadmissible.
Crimes of dishonesty or false statement are defined in a much broader fashion in the state of Florida than in the federal rules. In Florida, if the crime has a basis in cheating, stealing, lying or deceiving, that will be a crime of dishonesty.
Religious Beliefs or Opinions [90.611]
Evidence of the beliefs or opinions of a witness on matters of religion is inadmissible to show that the witness’s credibility is impaired or enhanced thereby.
3. Examination of Witnesses
Mode and Order of Interrogation and Presentation [90.612]
The rule in Florida is exactly the same as the federal rule with one caveat.
The rule tells the judge that they need to take special care of child witnesses under the age of 14 (i.e., Don’t let lawyers ask the questions that the child can’t understand.).
Writing Used to Refresh Memory [90.613]
The rules are substantially similar, but with the following difference:
If a writing or item is used to refresh while the witness is testifying, it must be provided to the opponent.
The opponent is entitled to inspect, cross-examine on it, and introduce the writing/item or portions relating to the testimony for completeness. The court may redact unrelated information.
If the writing or item is not produced, the court must strike the testimony.
Prior Statements of Witnesses [90.614]
The Florida rule is similar to the federal rule, with the following difference.
In Florida, the witness must be shown the statement or the contents disclosed. The federal rules only require that the statements be shown to opposing counsel.
Extrinsic evidence of the prior inconsistent statement is admissible only if:
The witness is given an opportunity to explain or deny the prior inconsistent statement;
The opposing party is given an opportunity to question the witness about the prior inconsistent statement or the interest of justice otherwise requires; and
The witness does not distinctly admit making the prior inconsistent statement.
EXAMPLE: A witness testifies that the defendant ran a red light. On cross examination the witness is asked if he told his bartender, Joe, last week that the plaintiff ran the red light. The witness denies doing so. Joe can be called to testify to the inconsistent statement in the state of Florida.
NOTES:
Calling Witnesses by the Court [90.615]
The court may call witnesses whom all parties may cross-examine.
When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.
In Florida, objections must be made contemporaneously.
Exclusion of Witnesses [90.616]
Upon a party’s request, or upon its own motion, the court will order witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses.
Florida’s rule is the same as the federal rule, except that in a criminal case we allow the victim or victim’s next of kin to be present, unless upon motion the trial judge finds it to be prejudicial.
NOTES:
OPINIONS AND EXPERT TESTIMONY
1. Acceptable Testimony
Opinion Testimony of Lay Witnesses [90.701]
A witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:
the witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions;
the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
the opinions and inferences do not require a special knowledge, skill, experience, or training.
In contrast, the federal rules limit the form of opinion more so. They are:
rationally based on the perception of the witness;
helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and
not based on scientific, technical, or other specialized knowledge that would require an expert opinion.
Testimony by Experts [90.702]
To analyze an opinion offered by an expert, think Mnemonic “S.P.O.T Expert Issues”
S = Proper Subject matter
P = Proper Person (Qualified)
O = Proper Opinion (Basis of the opinion)
T = Proper Testimony (Offered in proper form)
The federal rules use the Daubert factors. Florida currently applies the Daubert factors as well.
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise if:
the testimony is based upon sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the witness has applied the principles and methods reliably to the facts of the case.
NOTE: In recent years, the law in this area has been somewhat unsettled, but in 2019 the Florida Supreme Court appears to have settled upon the Daubert standard.
NOTES:
2. Basis of Opinion Testimony by Experts [90.704]
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.
The Florida rule is now nearly identical to FRE 703. Under both rules, facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudice.
In Florida, the opponent can voir dire the expert witness about underlying facts and data.
3. Opinion on Ultimate Issue [90.703]
In Florida, experts are allowed to testify as to the ultimate issue at trial.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.
Florida does not separate expert testimony with respect to the mental state or condition of a defendant in a criminal case when such state or condition is an element of the crime or defense.
Under the federal and Florida rule, the expert can offer opinion as to sanity if the plea is insanity.
4. Disclosure of Facts or Data Underlying Expert Opinion [90.705]
Unless otherwise required by the court, an expert may testify in terms of opinion or inferences and give reasons without prior disclosure of the underlying facts or data. On cross-examination the expert shall be required to specify the facts or data.
Prior to the witness giving the opinion, a party against whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for the witness’s opinion. If the party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.
In Florida, we look at the basis of the opinion when there is voir dire for purposes of forming an objection.
In the federal system, you voir dire for the qualification as a witness.
NOTES:
5. Authoritativeness of Literature for use in Cross-examination [90.706]
In Florida, statement of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness but cannot be used to bolster the credibility of the expert.
Because Florida has not adopted FRE 803(18) the Learned Treatise exception to the hearsay rule, a learned treatise (or authoritative publication) cannot be used as substantive evidence, but can be used to impeach an expert. Note that the publication itself is not admissible.
6. Court-Appointed Experts
FRE 706 gives courts the right to appoint expert witnesses. Florida has no analogous rule but other Florida statutes create not only the right, but also the duty to appoint experts in certain situations.
NOTES:
HEARSAY
1. Definitions
Hearsay Defined: Hearsay is (1) a statement (2) by a human declarant, (3) other than one made while testifying at trial, (4) offered to prove the truth of the matter asserted (TOMA).
Except as provided by statute, hearsay evidence is inadmissible [90.802].
The definitions of “statement,” “declarant,” and “hearsay” are the same in Florida as under the federal rules.
Out-of-court statements that are not offered for their truth are not hearsay.
Use the mnemonic “C (see) E.L.V.I.S.”
C = Statement of Capacity to see, hear, speak, etc.
E = Effect on the Listener
L = Legally operative facts (LOF), a.k.a. facts of independent legal significance,
V = Verbal Acts
I = Impeachment
S = State of Mind - Circumstantially
2. Hearsay Exemptions [90.801]
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
One of identification of a person made after perceiving the person.
NOTE: In Florida, the five types of party-opponent admissions are treated as hearsay exceptions, not as falling outside the definition of hearsay, as they are in the federal rules.
3. Hearsay Exceptions
Hearsay Exceptions; Availability of Declarant Immaterial [90.803]
Present Sense Impression
In Florida, a spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness is admissible.
NOTES:
The only difference between this and the federal rule is that the federal rule does not include the provision regarding lack of trustworthiness.
Excited Utterance: The Florida rule is identical to the federal rule.
Then Existing Mental, Emotional, or Physical Condition
As in the federal rules, a statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health is admissible.
However, the Florida rule adds that this is the case only when the evidence is offered to:
prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action; or
prove or explain acts of subsequent conduct of the declarant.
As in the federal rules, the exception does not make admissible an after-the-fact statement of memory or belief to prove the fact remembered or believed, unless it relates to the execution, revocation, identification, or terms of the declarant will.
However, the FEC does not permit the admission of such evidence if the statement was made under circumstances that indicate its lack of trustworthiness.
Statements for Purposes of Medical Diagnosis or Treatment
Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.
This rule is substantially the same as the federal rule.
Recorded Recollection
Florida permits the admission of a memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.
A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
The federal rule is broader in that it allows for the admission of a memorandum or record that was made or adopted by the witness [FRE 803(5)].
NOTES:
Records of Regularly Conducted Activity
Like the federal rule, the FEC permits admission of records of regularly conducted business activity if such records are kept in the course of a regularly conducted business activity. Authentication is required.
However, the Florida rule also states that if the evidence is in the form of an opinion or diagnosis, it is inadmissible unless it would be admissible under the requirements for expert testimony.
Written notice to the opponent is required.
Includes the absence of such records as well.
Public Records and Reports
In Florida, records, reports, statements reduced to writing, or data compilations of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matter which there was a duty to report are admissible unless the sources of information or other circumstances show a lack of trustworthiness.
Like the federal rule, there is an exclusion in criminal cases for matters observed by a police officer or other law enforcement personnel.
However, Florida’s exclusion does not apply to an affidavit containing results of tests of person’s blood or breath to determine its alcohol content after operating a vehicle or vessel that is otherwise admissible under the motor vehicles and vessels statute.
Includes the absence of such records as well.
Market Reports, Commercial Publications
Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations if, in the opinion of the court, the sources of information and method of preparation were such as to justify their admission.
Learned Treatises
Unlike the federal rule, the FEC does not allow the use of learned treatises to prove the truth of the matter asserted (i.e., it is not a hearsay exception).
However, in Florida, such texts may be used in cross-examination of an expert witness [90.706].
Party-Opponent Admissions
Florida treats admissions by a party opponent as a hearsay exception where the availability of the declarant is immaterial. That is the key difference between the FEC and FRE.
NOTES:
Admissions:
The party’s own statement in either an individual or a representative capacity;
A statement of which the party has manifested an adoption or belief in its truth;
A statement by a person specifically authorized by the party to make a statement concerning the subject;
A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
A statement by a person who was a co-conspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.
Former Testimony
Florida’s rule allows the admission of former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Such testimony is admissible provided that the court finds the testimony is relevant and would not result in prejudice or confusion.
The constitutionality of this provision has been cast into doubt as a violation of the Confrontation Clause in criminal proceedings and civil proceedings in which due process grants the respondent a right to confrontation [Jones v. R.J. Reynolds Tobacco Co., 830 So. 2d 854 (Fla. Dist. Ct. App. 2002); Jenkins v. State, 803 So. 2d 783 (Fla. Dist. Ct. App. 2001)].
Statement of Child Victim in Civil or Criminal Case
In Florida, in a civil or criminal case, a statement of a child victim is admissible as a hearsay exception, if:
it is made by a child of physical, mental, or emotional age of 16 or less;
it describes acts of sexual abuse or unlawful acts of the like and can be admissible in any civil or criminal hearing; and
the court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.
NOTES:
If it was admitted when the child testifies, you don’t have a confrontation issue.
However, if the child has not testified, the child needs to be declared unavailable.
Unavailability shall include a finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm.
10-days’ notice is required.
Statement of Elderly Person or Disabled Adult
The Florida rule regarding the elderly is similar to the one for statements of child victims.
Judgment of Previous Conviction
The federal rules allow for the admission of evidence of a final judgment.
There is no such exception in Florida.
Judgment as to Personal, Family, or General History, or Boundaries
Under the federal rules, judgments as proof of matters of personal, family, or general history or boundaries, essential to the judgment are admissible if they would be provable by evidence of reputation.
There is no such exception in Florida.
Other Hearsay: The following hearsay exceptions in Florida are identical to the exceptions in the federal rule:
absence of entry in business records;
records of vital statistics;
absence of public record or entry;
records of religious organizations;
marriage, baptismal, and similar certificates;
family records;
records of documents affecting an interest in property;
statements in documents affecting an interest in property;
statements in ancient documents;
reputation concerning personal or family history;
reputation concerning boundaries or general history; and
reputation as to character.
NOTES:
Hearsay Exceptions; Declarant Unavailable [90.804]
What is unavailable? Use the mnemonic P.E.R.I.S.H.
P: Privilege successfully asserted
E: Exhaustion of memory
R: Refusal to testify
I: Inability to procure attendance despite due diligence
S: Sick (mentally or physically)
H: History (witness is deceased)
Former Testimony
The exception for the admission of former testimony given as a witness in another hearing or deposition when the declarant is unavailable is identical to the federal rule.
In criminal cases, discovery depositions (in contrast to depositions to perpetuate testimony) are not admissible.
Statement under Belief of Impending Death
In a civil or criminal trial, a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death is admissible.
Florida’s rule is broader than the federal rule, because the FEC applies to prosecutions for homicide or in a civil action or proceeding.
Statement Against Interest
Florida’s rule is substantially the same as the federal rule.
Statement of Personal or Family History
In Florida, a statement concerning the declarant’s own birth, adoption, marriage, divorce, parentage, ancestry, or similar fact of personal or family history, including relationship by blood, adoption, or marriage, is admissible, even though the declarant had no means of acquiring personal knowledge of the matter stated.
The federal rule goes further, allowing such a statement regarding another person, if the declarant was related to the other person by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.
NOTES:
Statement by Deceased or Ill Declarant Similar to One Previously Admitted
In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable, a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence is admissible.
There is no analogous federal rule.
NOTE: This section replaced the repealed FEC 90.602 – Dead Man’s Statute. It applies mainly in probate and trust litigation cases, where a party offers a trust or will into evidence, permitting the opponent to admit a hearsay statement of a dead or incompetent declarant regarding the trust or will.
Forfeiture by Wrongdoing
The federal rules allow for the admission of statements offered against a party that has assisted in, or acquiesced in, wrongdoing that was intended to, and did, procure the unavailability of a witness.
Florida's provision on forfeiture by wrongdoing is identical to the federal rule.
4. Hearsay Within Hearsay [90.805]
Hearsay within hearsay is not excluded provided each part of the combined statements conforms with an exception to the hearsay rule.
The Florida provision on hearsay within hearsay is identical to the federal rule.
5. Attacking and Supporting Credibility of Declarant [90.806]
In Florida, when a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant’s hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it.
If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
NOTES:
The federal rule is substantially similar, except that it applies only to the declarant of authorized admissions, vicarious admissions, or co-conspirator admissions.
6. Residual Exception
Florida does not have a residual hearsay exception. Thus, unless a statement falls within a stated exception to the hearsay rules, the statement may not be admitted.
NOTES:
AUTHENTICATION AND IDENTIFICATION
1. Requirement of Authentication or Identification [90.901]
The general rule in Florida, which is identical to the federal rule, is that authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Unlike the federal rule, in Florida, there is no authority for the trier of fact to authenticate by comparison.
2. Self-Authentication [90.902]
The Florida rule is substantially the same as the federal rule.
3. Testimony of Subscribing Witness Unnecessary [90.903]
The testimony of a subscribing witness is not necessary to authenticate a writing unless the statute requiring attestation requires it.
There is no analogous federal rule.
4. Photographs of Property Wrongfully Taken [90.91]
Under Florida law, in a prosecution for a crime involving the wrongful taking of property, a photograph of the property alleged to have been wrongfully taken is competent evidence of the property and is admissible to the same extent as if the property were introduced.
The photograph must bear a written description of the property, the name of the owner, the location where the alleged wrongful taking occurred, the name of the investigating law enforcement officer, the date the photograph was taken, and the name of the photographer.
The writing must be made under oath by the investigating law enforcement officer and the photograph must be identified by the signature of the photographer.
There is no analogous federal rule.
5. Handwriting
Non-expert testimony as to the genuineness of handwriting is a recognized way to authenticate provided that the basis for the opinion does not come from a preparation for litigation.
The federal rules also allow the trier of fact or expert witness to compare disputed specimens with specimens that have been authenticated.
NOTES:
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
1. Requirement of Originals [90.952]
Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.
2. Admissibility of Duplicates [90.953]
In Florida, a duplicate is admissible to the same extent as an original unless:
a genuine question is raised about the authenticity of the original or any other document or writing; or
it is unfair, under the circumstance, to admit the duplicate in lieu of the original.
This is the same as the federal rule. However, the Florida rule also states that a duplicate is admissible unless the document or writing is a negotiable instrument, a security, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
The federal rule does not have this exception.
3. Admissibility of Other Evidence of Contents [90.954]
The Florida rule is substantially the same as the federal rule.
The original of a writing, recording, or photograph is not required, except as provided in 90.953 and other evidence of its contents is admissible when:
All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.
An original cannot be obtained in this state by any judicial process or procedure.
An original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing.
The writing, recording, or photograph is not related to a controlling issue.
NOTES:
4. Public Records [90.955]
The Florida rule is substantially the same as the federal rule.
The contents of an official record or of a document authorized to be recorded or filed, and actually recorded or filed, with a governmental agency, either federal, state, county, or municipal, in a place where official records or documents are ordinarily filed, including data compilations in any form, may be proved by a copy authenticated as provided in 90.902 if otherwise admissible.
If a party cannot obtain, by the exercise of reasonable diligence, a copy that complies with subsection (1), other evidence of the contents is admissible.
5. Summaries [90.956]
In Florida, when it is not convenient to examine in court the contents of voluminous writings, records, or photographs, a party may present them in the form of a chart, summary, or calculation by calling a qualified witness.
The party intending to use the summary must give timely written notice of his or her intention to use the summary, proof of which must filed with the court, and must make the summary and the originals or duplicates of the data from which the summary is compiled available for examination or copying, or both, by other parties at a reasonable time and place.
A judge may also order that they be produced in court.
The federal rule is similar, although the federal rule has no notice requirement. However, federal courts have construed an implicit notice requirement.
In addition, while the Florida rule requires that the summary be made available, as well as originals or duplicates of the underlying information, the federal rule does not require that the summary be made available.
6. Functions of Court and Jury [90.958]
In Florida, when the admissibility of evidence of the contents of writings, recordings, or photographs depends upon the existence of a preliminary fact, the question as to whether the preliminary fact exists is for the court to determine.
However, the trier of fact determines whether:
the asserted writing ever existed;
another writing, recording, or photograph produced at the trial is the original; and
other evidence of the contents correctly reflects the contents.
This rule is substantially the same as the federal rule.
NOTES: