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Florida evidence

  1. Florida Evidence: Objections and Responses Presented by Jordan Ostroff of Jordan Law (407) 906-5529
  2. 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.
  3. 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
  4. 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
  5. 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.
  6. 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
  7. 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.
  8. 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.
  9. 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.
  10. 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?
  11. 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
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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
  17. 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 _____.
  18. 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.
  19. 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
  20. 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.
  21. 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?
  22. 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
  23. 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.
  24. 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.
  25. 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.
  26. 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
  27. 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.
  28. 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.
  29. 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
  30. 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?
  31. 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
  32. 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 ___
  33. 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).
  34. 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).
  35. 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.
  36. 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.
  37. 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
  38. 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.
  39. 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.
  40. 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!)
  41. 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.
  42. 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
  43. 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.
  44. 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
  45. 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…….
  46. 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..)
  47. 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.
  48. 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 _______.
  49. 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.
  50. 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?
  51. 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
  52. 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.