Evidence

Impeachment as to Prior Crimes in Civil Trials

Posted by David Adelstein on January 29, 2017
Evidence, Trial Perspectives / Comments Off on Impeachment as to Prior Crimes in Civil Trials

In a civil trial, I want to attack (impeach) the credibility of a testifying witness by bringing up a crime that witness committed. Can I do this?

When it comes to impeaching the credibility of a witness based on crimes, Florida Statute s. 90.610 states in material part:

(1) 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 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

(a) Evidence of any such conviction 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.

So, in a criminal trial, a witness’s credibility can be attacked if (1) the witness was convicted of a crime in excess of one year (a felony) or (2) the witness was convicted of a crime involving dishonesty or a false statement regardless of the length of punishment (a misdemeanor involving dishonesty or a false statement).   But, in a civil trial, not so fast – this type of impeachment will not be permitted if the conviction is remote in time that it has no bearing on the character of the witness.   If the crime is so remote in time, there is no probative value to impeach the witness other than the prejudicial effect the knowledge of the crime may have with the jury. See, e.g., Trowell v. J.C. Penny Co., Inc., 813 So.2d 1042 (Fla. 4th DCA 2002) (“The statute directs the court to determine whether the past convictions have a bearing on the present character of the witness. Evidence of theft and shoplifting convictions in the early 1980s with no subsequent convictions would tend to suggest that the witness no longer has a propensity toward dishonesty, and thus such convictions would have little or no bearing on his present character. Evidence of a continuing pattern of theft convictions tends to suggest that the appellant’s character in this regard remains unchanged.”).

The objective in attacking a witness’s credibility based on a crime (as permitted above) is that the witness cannot be trusted—their testimony is nothing but a bunch of lies.

The procedure to attack a witness’s credibility based on a crime is quite simple.   The witness will be asked whether he/she has ever been convicted of a felony or convicted of a misdemeanor crime involving dishonesty. If the witness says yes, the next question will be to ask the witness how many times has he/she been convicted of such crimes. The lawyer impeaching the witness will already know the answer to these questions. What if the witness lies? If the witness lies or gives a misleading answer, the lawyer can impeach that testimony by introducing a certified copy of the judgment of conviction for each crime (which is usually a judgment of the conviction and the sentence). This allows the lawyer to prove that the witness has been convicted of a particular crime, however, the lawyer cannot go into the nitty gritty about the crime(s). See Porter v. State, 593 So.2d 1158, 1159 (Fla. 2d DCA 1992).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another’s Records

Posted by David Adelstein on October 01, 2016
Evidence / Comments Off on Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another’s Records

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If you have looked through the articles on this blog before, you will know that the business records exception to the hearsay rule is a very important hearsay exception in business disputes (or any dispute involving business records!). The business records exception requires a proper foundation to be laid by a witness before the records are admitted into evidence to ensure the accuracy and reliability of the records.  The proper foundation requires the witness to show that “(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.” Ocwen Loan Servicing, LLC v. Gunderson, 41 Fla.L.Weekly D2238a (Fla. 4th DCA 2016) quoting Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008).

The business records exception to the hearsay rule comes up quite a bit in the mortgage foreclosure context.   This is because the loans (notes and mortgage) get assigned or assumed by a new servicer or lender and the new servicer or lender moves to foreclosure on the mortgage. Many times the issue is laying the proper foundation with the witness being relied upon in order to admit certain documents under the business records exception to the hearsay rule.

In Ocwen Loan Servicing, LLC, the witness was trying to lay the foundation for records maintained by the original loan servicer (which was a company whose assets were purchased by the new loan servicer). He testified about the verification process of getting the original servicer’s records to the new servicer to ensure the accuracy of the records and then entering that information into the new servicer’s computer system.

The witness also tried to lay the foundation for a screenshot to show that the original promissory note was entered into the original servicer’s system / loan servicing platform. The trial judge sustained a hearsay objection and excluded this evidence because the witness did not work for the original servicer and had no personal knowledge as to its computer system / servicing platform.   The trial court also excluded the loan payment history and the default letter that was entered into the original servicer’s computer system as hearsay. As a result, the loan servicer could not support a mortgage foreclosure claim and the court entered judgment in favor of the homeowners.

The appellate court reversed finding that the documents that the trial court excluded as hearsay were admissible under the business records exception even though the new loan servicer took custody of the original servicer’s records:

Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’ [T]he authenticating witness need not be ‘the person who actually prepared the business records.’ As such, it is not necessary to present a witness who was employed by the prior servicer or who participated in the boarding process. Rather, the records of a prior servicer are admissible where the current note holder presents testimony that it had procedures in place to check the accuracy of the information it received from the previous note holder. The testifying witness just need[s] [to] be well enough acquainted with the activity to provide testimony. Once this predicate is laid, the burden is on the party opposing the introduction to prove the untrustworthiness of the records

Ocwen Loan Servicing, LLC, supra (internal citations and quotations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Improperly Admitting Hearsay can still be Harmless Error

Posted by David Adelstein on September 03, 2016
Evidence / Comments Off on Improperly Admitting Hearsay can still be Harmless Error

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I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule.

What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of review, limited by Florida’s rules of evidence.

In Johnson v. State, 2016 WL 446889 (Fla. 4th DCA 2016)—yes, a criminal case—a defendant argued that the trial court erred in overruling a hearsay objection and admitting hearsay evidence / testimony. During the trial, the defendant objected when the responding police officer was asked to testify how the victim and the victim’s friend described the defendant. The trial court overruled this objection and the officer was allowed to testify. The appellate court correctly found that this testimony was hearsay as it was offered to prove the truth of the matter asserted–that the defendant was involved in the crime. There was not a hearsay exception that would otherwise allow the officer to recount the victim and the victim’s friend’s description of the defendant.

Unfortunately for the defendant, the trial court’s error was harmless. So, yes, the trial court erred by allowing the officer to offer hearsay testimony, but the error was deemed harmless error. If the error is harmless, then the appellate court will affirm the trial court. Remember, just because a trial court commits error during the course of the trial does not mean the error will result in a new trial or a reversal.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Challenging Standard for Granting Directed Verdict

Posted by David Adelstein on June 25, 2016
Evidence, Trial Perspectives / Comments Off on Challenging Standard for Granting Directed Verdict

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If there is a jury trial, there will be a motion for directed verdict. But, the standard for granting a motion for directed verdict is challenging; if the directed verdict is granted, an appeal will be filed arguing the trial court’s error in granting the directed verdict.

James v. City of Tampa, 2016 WL 3201221 (Fla. 2d DCA 2016) was a personal injury action. The issue at trial was whether the plaintiff’s injuries from a car accident constituted a permanent injury (as this issue impacted damages to be awarded to the injured plaintiff). At the conclusion of all of the evidence, the trial court granted the defendant’s motion for directed verdict on the issue of whether the plaintiff suffered a permanent injury, meaning the directed verdict prevented the jury from considering whether the injuries were permanent, and if so, damages associated with the permanent injuries. Naturally, the plaintiff appealed.

Regarding the challenging burden in granting a motion for directed verdict:

A motion for directed verdict should be granted only where no view of the evidence, or inferenced made therefrom, could support a verdict for the nonmoving party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. In there are conflicts in the evidence or different or reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury. The standard of review on appeal of the trial court’s ruling on a defendant’s motion for directed verdict is the same test used by the trial court in ruling on the motion.

James, supra, quoting Sims v. Cristinzio, 898 So.2d 1004, 1005-06 (Fla. 2d DCA 2005).

Here, the appellate court had no choice but to reverse the directed verdict remanding the matter back to the trial court for a new trial as to damages. The plaintiff put on expert testimony regarding the issue of permanent damages and the defendant cross-examined the plaintiff and presented its own rebutting expert. Thus, the issue of permanency was really a question for the jury as the directed verdict would only be appropriate where “the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the plaintiff…on the permanency issue.” James, supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Know the Best Evidence Rule

Posted by David Adelstein on June 02, 2016
Evidence / Comments Off on Know the Best Evidence Rule

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I previously discussed the best evidence rule.   Check out the article for more information on this evidentiary rule. It is important to know the best evidence rule when litigating negotiable instruments or even contractual disputes.  You do not want to try such a dispute without understanding the application of the best evidence rule.

The recent mortgage foreclosure case of Rattigan v. Central Mortgage Company, 41 Fla. L. Weekly D1312a (Fla. 4th DCA 2016) is an example of the application of the best evidence rule. In this case, the lender at trial failed to introduce the written loan modification to a promissory note that increased the principal amount of the note.   The modification to the note was a different instrument than the original note (that was modified). The lender was proceeding on the loan modification and not the original note.  The Fourth District held that the lender:

[V]iolated the best evidence rule by virtue of its failure to introduce the [written] modification at trial (either the original or duplicate with an explanation as to why the original note was unavailableWithout the introduction of the modification, all testimony regarding the contents of that modification…was erroneous. As a result, there is no proper evidence in the record which could support the final judgment.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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“Other Products” Evidence to Support Alternate Causation Theory

Posted by David Adelstein on May 30, 2016
Appeal, Evidence, Standard of Review / Comments Off on “Other Products” Evidence to Support Alternate Causation Theory

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The recent case of Arizona Chemical Company, LLC v. Mohawk Industries, Inc., 41 Fla. L. Weekly D1213a (Fla. 1st DCA 2016) is a case I discussed regarding lost profit damages. Check out that article here. But, this case also raised an interesting trial and appellate issue involving “other products” evidence to support an alternate causation argument, such as when a specific product or manufactured component fails.

This case involved a manufacturer of a specific brand of carpet suing the manufacturer of resin that was used in manufacturing the failed carpet brand. The carpet manufacturer claimed that the resin failure caused an increase in warranty claims and consumer complaints.

Applicable here is the carpet manufacturer’s pre-trial motion in limine to prevent the resin manufacturer from introducing evidence about other brands manufactured by the carpet manufacturer (that did not use the resin) that contemporaneously failed and also resulted in spikes in consumer claims. In particular, the resin manufacturer intended to introduce evidence at trial of consumer claim spikes related to three other brands of carpet manufactured by the carpet manufacturer, although none of the other brands used the resin. The resin manufacturer claimed that such contemporaneous failures indicate that something other than the resin caused the failure in all of the brands. An alternate causation argument. Makes sense, right? The trial court, however, granted the carpet manufacturer’s motion in limine since the other products were dissimilar to the failed carpet brand at-issue (as none of the other brands used the resin) precluding this “other products” evidence from being introduced during trial.

Post-trial, the resin manufacturer appealed, among other issues, the trial court’s granting of the motion in limine. The First District held that the relevance of “other products” evidence is reviewed under an abuse of discretion standard of appellate review. In reviewing this issue under this abuse of discretion standard of review, the First District affirmed the trial court’s preclusion of this “other products” evidence finding that such evidence was NOT relevant:

 

Generally, evidence of “possible explanations” for the plaintiff’s harm other than the defendant’s negligence is relevant and must be admitted. To establish the relevance of particular alternative-causation evidence, however, the defendant must provide a competent evidentiary link between the plaintiff’s harm and the defendant’s theory. This threshold requirement exists as a function of the relevance rule, even though the defendant does not carry a quantifiable burden of proof as to the alternative explanation.

Here, Arizona’s [resin manufactuer] basic argument is that the excluded evidence was relevant to rebut Mohawk’s [carpet manufacturer] point that the timing of Unibond’s [specific failed carpet brand at-issue] claims spike indicates that Arizona’s resin was the cause of the Unibond defects. The excluded evidence established that other products manufactured in the same Mohawk facility without Arizona’s resin experienced claims spikes at approximately the same time as Unibond. When these two points are considered outside the context of the remaining evidence, they make a compelling case for an abuse of the trial court’s discretion. Of course, context is key. When the trial court’s decision is viewed in the context in which Mohawk used the evidence of Unibond’s claims spike and the limitations of the evidence concerning other products’ claims spikes, the basis for the manner in which the trial court exercised its discretion in this case is understandable.

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Arizona argues that the evidence of other products’ claims spikes rebuts Mohawk’s causation theory because this evidence bears on the likelihood that other factors caused the Unibond claims spike. The specific factors Arizona suggests are poor quality control and lack of adherence to manufacturing protocol. However, there is no evidentiary basis in the record for supplying the connection between contemporaneous claims spikes of the four product lines and these factors. The record supports a theory that there may have been some general quality-control failings at the facility, but Arizona has not identified any evidence to substantiate its conclusion that problems with quality control explained the defects in the non-Unibond products. In fact, evidence Arizona submitted in opposition to Mohawk’s motion indicates that Mohawk traced the causes of the defects in the other products to design flaws and choices of raw materials, not quality-control or procedural failures.

Without a more direct connection between the other products’ failures and Unibond’s failures, the evidence of the other products’ failures showed causation, or rebutted Mohawk’s causation theory, only to the extent that it showed Mohawk has a propensity to produce bad carpet. Introducing evidence for this purpose is improper. In light of these considerations, we find no abuse of discretion in the trial court’s decision to exclude the other-product evidence as legally irrelevant to the issue of liability.

Arizona Chemical Company, LLC, supra (internal quotations omitted).

When relying on “other products” evidence to support an alternate causation theory, it is important to connect the dots and create the evidentiary link between the other products’ failures and the failure at-issue. In other words, you need to create the evidentiary link supporting an alternative theory of causation by relying on the “other products” evidence.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

Posted by David Adelstein on May 21, 2016
Evidence, Standard of Review / Comments Off on Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

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After the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict. (Check out this article too for more on directed verdicts.)  The court denies the motion for a directed verdict. You put on your defense and then the case is submitted to the jury. The jury returns a verdict in favor the plaintiff. You then move to set aside the verdict (also called a motion for judgment notwithstanding the verdict). The trial court denies your motion and enters final judgment consistent with the jury’s verdict. You appeal the trial court’s denial of the motion for directed verdict / motion to set aside the verdict.

An appellate court must review a trial court’s determination on a motion for judgment notwithstanding the verdict de novo and “evaluate the evidence in the light most favorable to the non-moving party, drawing every reasonable inference flowing from the evidence in the non-moving party’s favor.” Miami-Dade Cnty. v. Eghbal, 54 So. 3d 525, 526 (Fla. 3d DCA 2011). Additionally, we must sustain a jury verdict if it is supported by competent substantial evidence. Hancock v. Schorr, 941 So. 2d 409, 412 (Fla. 4th DCA 2006).

Frieri v. Capital Investment Services, Inc. , 41 Fla.L.Weekly D1189a (Fla. 3d DCA 2016).  

In other words, the appellate court will evaluate the evidence in favor of the non-moving plaintiff (part that did not move for the directed verdict) drawing reasonable inferences in its favor. If there was competent substantial evidence supporting the jury’s verdict, the court will affirm the judgment in favor of the plaintiff.

Now what if after the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict and the trial court grants the directed verdict in your favor and against the plaintiff.   The plaintiff appeals the trial court’s granting of your motion for directed verdict.

While the standard of review for the trial court’s entry of a directed verdict is de novo, an appellate court “can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.Banco Espirito Santo Int’l, Ltd. v. BDO Int’l, B.V., 979 So. 2d 1030, 1032 (Fla. 3d DCA 2008) (quoting Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001)).

Frieri, supra.

In other words, the appellate court will evaluate the evidence to see if no proper view of the evidence, and all inferences drawn from the evidence, could support a verdict in favor of the plaintiff. Thus, if the plaintiff fails to introduce any evidence substantiating its claims (or a claim) against the defendant (i.e.,to sustain a verdict in favor of the plaintiff), then the appellate court will affirm the directed verdict.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proving Your Case Through Circumstantial Evidence

Posted by David Adelstein on May 15, 2016
Evidence / Comments Off on Proving Your Case Through Circumstantial Evidence

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The plaintiff puts on her case through circumstantial evidence so that inferences can be drawn from that evidence.  The defendant moves for a directed verdict after the plaintiff put on her case through circumstantial evidence. The trial court denies the motion and the jury enters a verdict in favor of the plaintiff. The defendant appeals the trial court’s denial of the motion for a directed verdict. The standard of review for the denial of a motion for directed verdict is de novo.   Broward Executive Builders, Inc. v. Zota, 41 Fla.L.Weekly D1126a (Fla. 4th DCA 2016).

In Broward Executive Builders, the plaintiff, a painter, fell and seriously injured herself. No one witnessed the fall and the plaintiff was unable to testify. The plaintiff claimed that defendant general contractor caused her fall by failing to install required guardrails that would have prevented the fall.

[A plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Broward Executive Builders, supra, quoting Sanders v. ERP Operating Ltd. P’ship, 157 So.3d 273, 277 (Fla. 2015).

Without any direct evidence relating to the cause of the plaintiff’s injury, the plaintiff needed to establish the defendant general contractor’s liability through circumstantial evidence, predominantly through an expert accident reconstructionist. While the plaintiff may prove facts in a negligence case through circumstantial evidence, an inference drawn from the circumstantial evidence “must be the only reasonable inference that can be formed from that evidence for the plaintiff to build further inferences upon it.” Broward Executive Builders, supra.

While it certainly could be inferred from the circumstantial evidence that the plaintiff fell and sustained injuries, it could not be reasonably inferred that the plaintiff fell from a location where the guardrails would have prevented her fall. The circumstantial evidence did not exclude other reasonable inferences about the location where the plaintiff fell, what the plaintiff was doing when she fell, or what caused the fall. In other words, it could not be solely inferred that the defendant’s failure to install the required guardrails caused the plaintiff’s injuries—there were other reasonable possibilities relating to the fall that could be inferred.

[B]ecause there is no evidence of how she fell or where exactly she fell from, it would be complete speculation and conjecture for any trier of fact to conclude that the lack of guardrails contributed to causing her injuries. The burden of proof rested upon appellees [plaintiff] to prove appellant’s [defendant] negligence. Where there is evidence that the harm could have occurred even in the absence of the appellant’s conduct, proof of causation cannot be based on mere speculation, conjecture, or inferences drawn from other non-exclusive inferences.

Broward Executive Builders, supra (reversing the trial court and remanding for judgment to be entered in favor of defendant general contractor). 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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A Promissory Note is NOT Hearsay

Posted by David Adelstein on April 23, 2016
Evidence / Comments Off on A Promissory Note is NOT Hearsay

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A promissory note is NOT regarded as hearsay. This means a party introducing a promissory note does not need to lay down the foundation to a hearsay exception such as the business records exception in order to admit the note into evidence.

The Fifth District Court of Appeal in Deutsche Bank National Trust Co., Etc. v. Alaqua Property, Etc., 41 Fla.L.WeeklyD994b (Fla. 5th DCA 2016) explained that a promissory note in a foreclosure action is NOT hearsay because it is NOT being offered to prove the truth of the matter asserted; rather, the note has independent legal significance, that being “to establish the existence of the contractual relationship and the rights and obligations of the parties to the note.” Deutsche Bank National Trust Co., supra.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Difference Between Lay Opinion Testimony and Expert Opinion Testimony

Posted by David Adelstein on April 07, 2016
Appeal, Evidence, Standard of Review / Comments Off on Difference Between Lay Opinion Testimony and Expert Opinion Testimony

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Although I have numerous blog articles regarding the appellate standard of review when it comes to the admissibility of evidence, it is important to remember that “[a] trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion; however, the trial court’s interpretation of the evidence code is reviewed de novo.” L.L. v. The State of Florida, 41 Fla.L.Weekly D854a (Fla. 3d DCA 2016).

In L.L., a criminal case, a police officer testified that he smelled the strong odor of marijuana from the defendant and that a plastic bag in defendant’s possession contained marijuana. The defendant objected that the officer’s opinions about the smell being marijuana and the substance in the bag being marijuana was an improper lay opinion and constituted expert opinion testimony (governed by the Daubert standard). The trial court allowed this testimony and the issue on appeal was whether such testimony was expert opinion testimony or proper lay opinion (fact witness) testimony.

The appellate court held that the officer’s testimony or opinions about the smell and substance being marijuana was proper lay witness opinion testimony governed under Florida Evidence Code 90.701:

If a witness is not testifying as an expert, the [lay] 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.

The appellate court’s holding included a very good discussion explaining in detail why the officer’s opinion was proper lay opinion testimony as opposed to expert opinion testimony governed by the Daubert standard:

In addition to the requirement that lay opinion testimony be based on the personal knowledge and perception of the witness, the Advisory Committee Notes explain that courts should consider the witness’s method of reasoning: “the distinction between lay and expert witness testimony is that lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field.‘ ” …As one scholar has explained:

[T]he distinction lies in whether the witness’s reasoning process entails a reliable methodology beyond everyday reasoning. A lay witness, however experienced, offers no methodology beyond ordinary reasoning. An expert is equipped to draw more sophisticated, yet still reliable, inferences. The crux of expert testimony is that it presents inferences that are supported through the application of a reliable methodology. Thus, the witness who relies on experience to support an expert opinion cannot simply claim insights arrived at by applying everyday reasoning to that experience base, but must explain the methodology employed to reach that opinion. An experienced witness who does not bring such methodology to bear should be subject to the restrictions of the lay opinion rule.

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One important reason the Daubert standard [governing the admissibility of expert witness opinions] imposes a more demanding reliability inquiry upon expert opinion testimony is that the opinion results from a methodology or reasoning process that might be foreign to the trier of fact….But in cases such as the one now before us, even if the trier of fact does not have the personal experience necessary to identify the substance in question, the reasoning process is not “foreign in kind.” Many people who have seen and smelled marijuana would be able to recognize it in the same way they recognize anything else they have seen or smelled before.

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Here, Officer Munecas’s reasoning process is nothing that requires a specialist in the field of drug identification; it is reasoning familiar in everyday life.

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Finally, we hasten to add that although the more demanding Daubert admissibility standard does not apply to lay opinion testimony, there is nevertheless a reliability inquiry. Not only must lay opinion testimony be based on the witness’s personal knowledge, section 90.604, Florida Statutes, and perceptions, section 90.701, Florida Statutes, but the witness must have sufficient personal knowledge to support the opinion.

L.L., supra (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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