Florida Evidence:
Objections and Responses
Presented by Jordan Ostroff of Jordan Law
(407) 906-5529

General Rules
● When making an objection, stand up and say it with confidence.
● Make a legal objection “Objection, relevance.” Then just wait.
● No speaking objections!
● If you can remember rule numbers, you can say “under Florida Rule of Evidence
___,” state response.
● When making/responding to an objection, give the standard response first and
stop talking. Wait for the judge to ask you for follow-up.
● If the Judge has already made a ruling and you need to get more information
on the record, be as nice as possible and ask them if you can be heard for the
record (or for appellate purposes).
● Never argue to opposing counsel (don’t look at them when talking, don’t say
their name), argue to the Judge. Eye contact = persuasiveness.

Fl. R. Evid. § 90.401 – Definition of
Relevant Evidence
● Relevant evidence is evidence tending to prove or disprove a material fact.
● A fact is “material” if its existence would provide the trier of fact with a basis
for making some inference, or chain of inferences, about an issue that is
necessary to a verdict
● It does not have to be a certain amount of relevance. So if opposing counsel
argues that it’s very relevant, that goes to the weight the jury should give it, not
the admissibility of the evidence).
● Conditional Relevance does make the standard higher
○ Preponderance of evidence for conditioned fact

Fl. R. Evid. § 90.401
Objection:
●Relevance
Response:
● Your Honor, a material fact
at issue is ________. This
goes to make that
(more/less) probable.
● This goes to the witness
bias/motive
● This is just laying
background information
● If the Judge asks why, then
explain how this fact
makes it more or less
probable

Fl. R. Evid. § 90.403 – Exclusion on
grounds of prejudice or confusion
● 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. This
section shall not be construed to mean that evidence of
the existence of available third-party benefits is
inadmissible.
● Here we are arguing how helpful it is.
● All evidence should be prejudicial.

Fl. R. Evid. § 90.403
● This rule goes hand-in-hand with 90.401. Evidence can have some relevance
value, but you can argue that the prejudicial nature of it outweighs its
relevance.
○ Know the key phrase: The probative value is substantially outweighed by the danger of unfair
prejudice.
● It’s a balancing test, we are arguing weight versus admissibility.
● Prejudice is present when the evidence is directed to an improper purpose,
such as evidence that inflames the jury or appeals improperly to the jury’s
emotions.
● If the evidence confuses the issues of what is decided then it can be excluded
○ Ex. Drug parties at Doctor’s office
○ Damage amounts in a liability phase trial
○ Breath results during a Motion to Suppress

Fl. R. Evid. § 90.403
Objection
● This is unfairly
prejudicial
● Relevance and it is
confusing the issues
● Burden is on objector to
show that the probative
value is substantially
outweighed by the
prejudice
Response
●Your Honor, the evidence will
not unfairly prejudice the
(Plaintiff/Defendant) and the
probative value outweighs any
danger.
● The probative value of this
evidence is very high because
of _____, therefore it clearly
outweighs any prejudice.

Fl. R. Evid. § 90.801 – Hearsay,
definitions, exceptions
● The following definitions apply under this chapter:
○ (a) A “statement” is:
■ 1. An oral or written assertion; or
■ 2. Nonverbal conduct of a person if it is intended by the
person as an assertion.
○ (b) A “declarant” is a person who makes a statement.
○ (c) “Hearsay” is a statement, other than one made by the
declarant while testifying at the trial or hearing,
○ offered in evidence to prove the truth of the matter asserted.

Fl. R. Evid. § 90.801 – Hearsay,
definitions, exceptions
● (2) 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:
○ (a) 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;
○ (b) 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
○ (c) One of identification of a person made after perceiving the person.

Fl. R. Evid. § 90.801
● What is hearsay:
○ “Out-of-court statement / offered into evidence / for the
truth of the matter asserted” – Know this language!
● A direction or command is not hearsay
○ Ex. Go to the store!
● If you are using the statement to show future action it is
being used for the effect it had on the listener
○ Ex. She said “I’m going to blame you if you don’t climb
up the tree. What did you do then?
○ Answer: I climbed up the tree
● It is raining in Orlando right now! Hearsay?

Fl. R. Evid. § 90.801
Objection
●The question calls
for hearsay
●Objection hearsay
Response
● The testimony is not
offered for the truth but to
show the effect it had on
the listener.
● It is being offered to show
the declarant’s state of
mind
● It is being used to impeach
the witness with a prior
inconsistent statement.
● There is an exception under
90.803…then state
exception

Fl. R. Evid. § 90.803(18) –
Hearsay Exception; Admissions
● A statement that is offered against a party and is:
● (a) The party’s own statement in either an individual or a
representative capacity;
● (b) A statement of which the party has manifested an adoption or
belief in its truth;
● (c) A statement by a person specifically authorized by the party to
make a statement concerning the subject;
● (d) 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
● (e) A statement by a person who was a coconspirator 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.

Fl. R. Evid. § 90.803(18) – Hearsay
Exception; Admissions
● If you are Plaintiff counsel, you can get out statements of
the Defendant or Party reps
● If you are Defense counsel, you can get out statement of
the Plaintiff
● Response: This is an admission by a party opponent.
● Doesn’t include cops/victims in criminal.

Fl. R. Evid. § 90.803(1) &(2) – Hearsay
Exception; Spontaneous & Excited Utterance
● (1) 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.
● (2) EXCITED UTTERANCE.—A statement or excited
utterance relating to a startling event or condition made
while the declarant was under the stress of excitement
caused by the event or condition.

Fl. R. Evid. § 90.803(1) &(2)
● A spontaneous statement is one where the statement was made
without first engaging in reflective thought – thus tending to make it
trustworthy.
○ Must describe the event
○ Ex. A person observing a car accident says, “His car was swerving right before he the
curb.”
● To qualify as an excited utterance there must have been an event
startling enough to create excitement or some sort of stress. The
statement must be made close enough in time to not allow for
misrepresentation.
○ Only needs to be related to the event
○ Ex. A person observing a car accident says, “He had just finished a beer before he got
in the car!”
○ We also trade some time for the need for excitement. Can be longer between event
and statements, than in spontaneous statement.

Fl. R. Evid. § 90.803(1) &(2)
● To qualify as an excited utterance the following foundation must be laid before
getting the statement out:
○ There was a startling event that caused nervous excitement
○ The statement was made before there was time to misrepresent the event
○ The statement must be made while the person is under the stress of the
event
○ The statement must relate to the event or condition that caused excitement

Fl. R. Evid. § 90.803(1) &(2)
Objection
●Hearsay
Response
●The statement falls under the
exception as an excited
utterance. It was made
following the startling event
while the declarant was under
the stress of the event.
● This is a spontaneous
statement, it is about ____ and
describes _____.

Fl. R. Evid. § 90.803(3)– Hearsay Exception;
Then-existing mental, emotional, or physical
condition
● 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, when such evidence is offered to:
○ 1. Prove the declarant’s state of mind, emotion, or physical sensation at the
time or at any other time when such state is an issue in the action
○ 2. Prove or explain acts of subsequent conduct of the declarant.
● This rule allows for statements that prove the declarant’s state of mind,
emotion, or physical sensation, as well as the future conduct of the declarant.

Fl. R. Evid. § 90.803(3)
● However, this subsection does not make admissible:
○ An after-the-fact statement of memory or belief to prove
the fact remembered or believed unless such statement
related to the execution, revocation, identification, or
terms of the declarant’s will.
■ Tomorrow meet me at the rock where we murdered
John
● Past fact doesn’t come in.
○ A statement made under circumstances that indicate its
lack of trustworthiness

Fl. R. Evid. § 90.803(3)
Objection
●The question calls for hearsay
● Objection hearsay.
Response
●This is admissible under the
state of mind exception. The
declarant’s state of mind is at
issue.
●This is a statement about
future action/intent.

Fl. R. Evid. § 90.803(6)– Hearsay Exception;
Records of regularly conducted activity
● A record or report is admissible under the business record exception when by
testimony you establish:
○ The record was made at or near the time of the event recorded
○ The record was made with information from a person with knowledge who
had a duty to furnish such information
○ The record was kept in the course of a regularly conducted business activity
○ It was the regular practice of the business to make such record
● Doesn’t have to be a custodian.
● Stores can’t enter slip and fall reports
● What about reciepts?

Fl. R. Evid. § 90.803(6)
Objection
●The document is hearsay
Response
● This falls under the
business record exception.
The witness laid foundation
that it was made at or near
the time of the event by a
person with such
information. They had a
duty to furnish this
information which is
regularly kept by the
business

Fl. R. Evid. § 90.805– Hearsay within Hearsay
● Hearsay within hearsay is not excluded under § 90.802, provided each part of
the combined statements conforms with an exception to the hearsay rule as
provided in § 90.803 or § 90.804
● Ex. Michael told me that he knew Michelle was going to rob the bank because
she told him she was planning her getaway route.
○ Here Michelle and Michael both makes statements, so you need an exception for each
person/statement in order to get this statement admitted.

Fl. R. Evid. § 90.803 and § 90.804
● We did not cover MOST of the exceptions in here, but this
will cover MOST of the times you need them.
● A few quick tips:
○ Must believe you are doing to die and then not be available (you don’t
actually have to be dead!)
○ Police report are public records in Florida, but still inadmissible by the
State
○ Statements for medical treatment or diagnosis are the statements made
TO the medical person, not the statements made BY the medical person.

Fl. R. Evid. § 90.701 – Opinion
testimony of lay witness
● If 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:
○ (1) 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 and the witness’s use of
inferences or opinions will not mislead the trier of fact to the prejudice of
the objecting party; and
○ (2) The opinions and inferences do not require a special knowledge, skill,
experience, or training.

Fl. R. Evid. § 90.701 – Opinion
testimony of a lay witness
● The rule normally is that a lay witness must testify only to facts which they
observed and are not permitted to testify in terms of an opinion.
○ The case was going fast versus the car was going 70 miles per hour
● In order to give an opinion it must be “rationally based” on the witnesses
perceptions, i.e. a normal person could make the same opinion based on the
same facts.
○ Ex. Just because a witness did not observe the child draw on the wall, they
can give an opinion if the child was the only one in the room, it looks like a
kid’s drawing, they had given the child that color crayon, etc.
● Usually based upon our five senses
○ He was screaming
○ It felt hot

Fl. R. Evid. § 90.701
Objection
●Objection, improper opinion
●Objection, this calls for an
expert opinion
Response
●The opinion is
admissible because it
is rationally based on
the witnesses
perception of the
events and doesn’t
require any expertise.

Fl. R. Evid. § 90.703 – Opinion on
ultimate issue
● 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.
● Must balance this against invading the province of the jury.
● An example of testimony embracing the ultimate issue would be testimony
regarding causation in a negligence case.

Fl. R. Evid. § 90.604 – Lack of
Personal Knowledge
● Except as otherwise provided in s. 90.702, a witness may
not testify to a matter unless evidence is introduced
which is sufficient to support a finding that the witness
has personal knowledge of the matter. Evidence to prove
personal knowledge may be given by the witness’s own
testimony.
● Speculation Objection is NOWHERE in the Rules of
Evidence

Lack of Personal Knowledge vs.
Speculation
● This is Jordan Ostroff evidence - it’s not a real thing, but it makes
sense
● Personal Knowledge - something they CAN know but DOES NOT know
● Speculation - something they CANNOT know and DOES NOT know.
● Ask yourself this:
○ Difference between: Someone looks angry and someone is angry
○ Are they basing this on what they saw or heard?
○ Is the answer someone else’s mental state?
○ Does the witness know the answer?
○ Can the witness find the answer?

Fl. R. Evid. § 90.604
Objection
●Lack of personal
knowledge
●The witness does not
have personal
knowledge of the facts
about which he/she is
testifying
Response
●The witness has said
that he/she witnessed
the event he/she does
have personal
knowledge
●The witness is not
speculating

Entering Evidence Basics
1. Let the record reflect I’m showing opposing
counsel what has been marked for identification
purposes as Plaintiff/Defense Exhibit ___
2. May I approach the witness?
3. I am showing you what has been marked for
identification purposes as Plaintiff/Defense
Exhibit ___, do you recognize this?
4. What is it?
5. Does this fairly and accurately represent the way it
looked the last time you saw it?
6. Has it been changed or altered in anyway since
you last saw it?
7. Your Honor, we move into evidence what has been
pre-marked as exhibit ___ as exhibit ___

Fl. R. Evid. § 90.614 – Prior
statements of witnesses
● (1) When a witness is examined concerning the witness’s prior written
statement or concerning an oral statement that has been reduced to writing,
the court, on motion of the adverse party, shall order the statement to be
shown to the witness or its contents disclosed to him or her.
● (2) Extrinsic evidence of a prior inconsistent statement by a witness is
inadmissible unless the witness is first afforded an opportunity to explain or
deny the prior statement and the opposing party is afforded an opportunity to
interrogate the witness on it, or the interests of justice otherwise require. If a
witness denies making or does not distinctly admit making the prior
inconsistent statement, extrinsic evidence of such statement is admissible.
This subsection is not applicable to admissions of a party-opponent as defined
in s. 90.803(18).

Fl. R. Evid. § 90.614 – Prior
statements of witnesses
● You can use a prior statement of a witness for two purposes: refresh
their memory or impeachment
● With respect to opposing counsel, you should show them or notify
them what parts of a prior statement you are referring to, i.e. page &
line number
● Use refreshment or impeachment language as provided separately.
● If you are refreshing, you can refresh with ANYTHING, if you are
impeaching it must be the statement of that witness (but doesn’t need
to be sworn).

Fl. R. Evid. § 90.105 –
Preliminary Questions
● (1) Except as provided in subsection (2), the court shall determine
preliminary questions concerning the qualification of a person to be
a witness, the existence of a privilege, or the admissibility of
evidence.
● (2) When the relevancy of evidence depends upon the existence of
a preliminary fact, the court shall admit the proffered evidence when
there is prima facie evidence sufficient to support a finding of the
preliminary fact. If prima facie evidence is not introduced to support a
finding of the preliminary fact, the court may admit the proffered
evidence subject to the subsequent introduction of prima facie
evidence of the preliminary fact.
● (3) Hearings on the admissibility of confessions shall be conducted
out of the hearing of the jury. Hearings on other preliminary matters
shall be similarly conducted when the interests of justice require or
when an accused is a witness, if he or she so requests.

Fl. R. Evid. § 90.108 – Introduction of related
writings or recorded statements
● (1) When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require him or her at that time to introduce any
other part or any other writing or recorded statement that in fairness ought to
be considered contemporaneously. An adverse party is not bound by evidence
introduced under this section.
● (2) The report of a court reporter, when certified to by the court reporter as
being a correct transcript of the testimony and proceedings in the case, is
prima facie a correct statement of such testimony and proceedings.

Fl. R. Evid. § 90.108 – Introduction of
related writings or recorded statements
● This is generally referred to as the “Rule of Completeness”
● This rule is important if you a reading part of a document
or statement, i.e. deposition testimony.
● The rule requires that if the adverse party wants the
remainder of a document to be read, it shall be read when
the party reading it is introducing the statement.
○ You want to read in lines 3-5
○ The other party could ask for lines 6-7 also

Fl. R. Evid. § 90.404(a) – Character
Evidence; when admissible.-
● (a) 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:
○ (a) Character of accused.—Evidence of a pertinent trait of character
offered by an accused, or by the prosecution to rebut the trait.
○ (b) Character of victim.—
■ 1. Except as provided in s. 794.022, evidence of a pertinent trait of
character of the victim of the crime offered by an accused, or by the
prosecution to rebut the trait;
■ 2. or Evidence of a character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut evidence that the victim
was the aggressor.
○ (c) Character of witness.—Evidence of the character of a witness, as
provided in ss. 90.608-90.610.

Fl. R. Evid. § 90.404(b) – Other
crimes, wrongs, or acts.
● Similar fact evidence of other crimes, wrongs, or acts is
admissible when relevant to prove a material fact in issue,
including, but not limited to, proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident, but it is inadmissible when the
evidence is relevant solely to prove bad character or
propensity.
● Can be ANY reason that isn’t preponderance
● Wear certain mask, get caught once.

Fl. R. Evid. § 90.404 – Character
Evidence
● Character may be an element of the claim, this is called
“character in issue.”
● Character evidence is not allowed to show propensity
○ Ex. Because he stole from his mother once, he probably
robbed the bank
● Character objections should go with 90.403 objections, because
character evidence while probative may be prejudicial as well.
● Character for truthfulness is put at issue when the person
testifies (that is always at issue!)

Fl. R. Evid. § 90.404(a)
Objection
●This is inadmissible character
evidence
Response
●The good character/reputation
of the witness is directly at
issue because it is an element
of the claim
●Defense put the Defendant’s
good character at issue, the
door has been open to rebut
that with bad character.

Fl. R. Evid. § 90.405 – Methods of
Proving Character
● REPUTATION.—When evidence of the character of a
person or of a trait of that person’s character is
admissible, proof may be made by testimony about that
person’s reputation.
● SPECIFIC INSTANCES OF CONDUCT.—When character or a
trait of character of a person is an essential element of a
charge, claim, or defense, proof may be made of specific
instances of that person’s conduct.
● Florida doesn’t allow opinion character
● Must be reputation in a community

Fl. R. Evid. § 90.609 – Character of
witness as impeachment
● A party may attack or support the credibility of a witness,
including an accused, by evidence in the form of
reputation, except that:
○ (1) The evidence may refer only to character relating
to truthfulness.
○ (2) Evidence of a truthful character is admissible only
after the character of the witness for truthfulness has
been attacked by reputation evidence.

Fl. R. Evid. § 90.609 – Character of
witness as impeachment
● Evidence of the truthful character of a witness is
admissible, but must be in the form of reputation evidence.
● You can present truthful character evidence only after
evidence attacking their character for truthfulness has
been presented.
○ Except for criminal defendant

Objection: Ambiguous (Vague) Question
Meaning
●Questions should be
asked in a form that
makes the meaning of
the question clear.
●If the question is
vague and cannot be
answered, the witness
will likely misconstrue
it.
Response
●The question is not
vague because it asks
specifically…….

Objection: Argumentative
Meaning
●A question is
argumentative if it is
asked for the purpose
of making an
argument to the jury,
to summarize, or
comment on evidence.
●It doesn’t seek new
evidence, just the
counsels conclusions
Response
●The question is not
argumentative I’m
asking the witness if
this is true (if they
agree, etc..)

Objection: Asked & Answered
Meaning
●If counsel repeats a
question they have
already asked and the
witness has already
answered.
●This does not apply if
the question was
asked on direct and
again asked on cross!
Response
●Opposing counsel
asked the question
before, I have not.
●The witness has not
answered this
question.

Objection: Assumes Facts Not In Evidence
Meaning
●When counsel asks a
question that assumes
a fact not yet proven, it
suggests to the jury
the truth of the fact.
Response
●The fact was proven
by the testimony of
______.
●The fact will be proven
during the testimony
of _______.

Objection: Compound Question
Meaning
●A compound question
is a question that is
two or more questions
in one. It will likely
confuse the witness.
●Ex. What time did you
go to the store and did
you see a girl stealing
cookies?
Response
●I’ll rephrase the
question.

Objection: Leading
Meaning
●Leading questions
suggest the answer
and are typically only
allowed on cross
examination.
●Ex. You were going
100 miles per hour,
were you not?
Response
●The question does not
suggest the answer, it
is not leading.
●Ex. Were you at the
office on January 1st?

Objection: Narrative
Meaning
●A question that asks
the witness to respond
with a long narrative
answer
Response
●We ask that you allow
the witness to answer
in this manner

Objection: Non-responsive
Meaning
●You are entitled to get
a responsive answer. If
the witness does not
respond, as a last
ditch effort you can
strike an answer if it
doesn’t answer your
question.
●Tip: Ask the question a
2nd time, if the witness
is still non-responsive
then use this tool.
Response
●The witness did
answer the question.