Florida Statute 90.803

Agent’s Out-of-Court Statements Could Constitute Admissions by a Party Opponent

Posted by David Adelstein on March 05, 2016
Evidence / Comments Off on Agent’s Out-of-Court Statements Could Constitute Admissions by a Party Opponent

images

Below is an example in a criminal trial of the exception to the hearsay rule referred to as admissions against party opponents when a party’s agent makes an out-of-court statement. Check out this article and this article for more on this important hearsay exception embodied in Florida Statute s. 90.803(18).

In Osorio v. State of Florida, 41 Fla.L.WeeklyD547b (Fla. 4th DCA 2016), the police used a confidential informant to make an arrest in a drug case. The confidential informant happened to be a co-worker of the defendant (that had previously been arrested on an unrelated drug charge and turned into an informant to obtain credit in his prosecution). The defendant was relying on an entrapment defense. During the defendant’s cross-examination of a detective at trial, the court refused to allow the detective to testify about an issue that the co-worker / informant relayed to the detective. Then, when the defendant took to stand to testify, the trial court refused to allow the defendant to testify about statements his co-worker / informant made. The court precluded this testimony based on the hearsay rule since both the detective and defendant would be testifying about out-of-court statements from the co-worker / informant offered for the truth of the matter asserted.

Could the co-worker / informant, acting as an agent of the police, be classified as a party-opponent to fall within the hearsay exception known as admissions against party opponents.   The court said yes!

“[A]n agent is one who consents to act on behalf of some person, with that person’s acknowledgment, and is subject to that person’s control.” Osorio, supra, citing Goldschmidt v. Holman, 571 So.2d 422, 424, n.5 (Fla. 1990).

The court held that the co-worker / informant was serving as an agent since the police encouraged his involvement including setting up the drug-buy that led to the defendant’s arrest in furtherance of obtaining credit in his prosecution.  As an agent, the co-worker / informant’s out-of-court statements did fall within the hearsay exception known as admissions against a party opponent. The statements made by the co-worker / informant were statements by the party’s [the state / police] agent concerning a matter within the scope of his agency and made during the existence of the relationship.   See Fla. Stat. s. 90.803(18).  The court held it was error not to allow the defendant to introduce these out-of-court statements that restricted the defendant’s ability to put on his entrapment defense.

 

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.

Tags: , , , , ,

Excited Utterance Hearsay Exception

Posted by David Adelstein on January 23, 2016
Evidence / Comments Off on Excited Utterance Hearsay Exception

Unknown

I have discussed that hearsay is inadmissible evidence. Again, 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.” Fla.Stat. 90.801(1)(c).

While hearsay is inadmissible, there are exceptions that allow hearsay to be admissible at trial.

One hearsay exception is known as an “excited utterance.” Typically, this hearsay exception is more applicable in criminal trials than civil trials. An excited utterance is 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.” Fla.Stat. 90.803(2). An excited utterance is admissible even though the declarant of the statement does not testify to making the statement at trial.

“There are three requirements for a statement to qualify as an excited utterance: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must have been made while the person was under the stress of excitement caused by the startling event.”

Smith v. Florida, 2016 WL 64341, *4 (4th DCA 2016) (internal quotation omitted).

For example, Smith was a murder trial. At trial, the murder victim’s daughter testified she called 911 and told the 911 operator that her aunt, the criminal defendant’s sister, told her that he seriously hurt the victim. The aunt then called 911 telling the operator that she saw blood and pleading with the operator to send help. In response to the 911 calls, the police discovered the victim stabbed to death.

At trial, the aunt denied making the statement to the victim’s daughter that the defendant told her that he seriously hurt the victim. The aunt, of course, was not the most credible since the defendant was her brother. The issue was whether the daughter could testify what the aunt told her (that the defendant told the aunt that he seriously hurt the vicim) since the statement constitutes hearsay.

The appellate court affirmed that the daughter could testify what the aunt told her since the aunt’s statement was an excited utterance: a) the startling event that caused the aunt’s nervous excitement was the thought that the victim was seriously hurt or dead; b) the aunt made the statement to the victim’s daughter immediately after she heard from her brother; and c) the statement was made before the aunt even called 911 so it was clearly made while the aunt was under the stress of the event and before there was time to make any misrepresentation. Further, the startling event the aunt experienced was supported by the aunt’s independent 911 call.

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.

Tags: , , , ,

State of Mind Hearsay Exception

Posted by David Adelstein on November 01, 2015
Evidence / Comments Off on State of Mind Hearsay Exception

images

Sometimes hearsay statements are introduced at trial not to show the truth of the matter asserted by the out-of-court statement, but to prove a certain state of mind of the person that heard the out-of-court statement. In this situation, the out-of-court statement would be admissible and not considered hearsay.

Florida Statute 90.803(3)(a) provides the following hearsay exception:

(a) 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 an exception to hearsay] when such evidence is offered to:

  1. 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.
  2. Prove or explain acts of subsequent conduct of the declarant.

For example, in a medical malpractice action, a CT Scan interpreted by a radiologist revealed an aortic tear (Type I dissection) that needed to be repaired. A test was conducted by a cardiologist to determine the extent and precise location of the tear and the patient died during or immediately after the test. The plaintiff (estate) argued that the test performed caused another tear and this tear caused the patient’s death. During trial, and over the objection of the plaintiff, the cardiologist testified that he was told by the radiologist (the declarant) that read the CT Scan of the aortic tear (Type I dissection). The plaintiff argued that this constituted hearsay since what the radiologist told the cardiologist was an out-of-court statement. The appellate court held that this did not constitute inadmissible hearsay because the out-of-court statement was not offered to prove the truth of the matter asserted, but simply to prove that the cardiologist had notice of the aortic tear (Type I dissection).   See Dorsey v. Reddy, 931 So.2d 259 (Fla. 5th DCA 2006).

In a civil action involving the termination of a county employee, the terminated employee sued a third party for intentionally interfering with the employee’s employment causing the county to terminate the employee. The third party wanted a report introduced at trial. The report was prepared by another county employee that depicted various wrongdoings of the terminated employee. The trial court ruled that this report constituted hearsay. The appellate, however, found that the exclusion of the report was reversible error since the report was not offered to prove the truth of the matter asserted, but to prove the fact that the county had knowledge (notice) of the terminated employee’s alleged wrongdoings prior to terminating the employee. See Spatz v. Kirby, 705 So.2d 657 (Fla. 2d DCA 1998).

Finally, in a criminal action involving grand theft of a van, the defendant was arrested with a passenger in the van. The defendant’s defense was that he had the good faith belief that the van was owned by the passenger. At trial, the defendant called a witness. The witness testified that the day before the arrest, the defendant was driven to his house by the passenger.   The trial court, however, excluded the witness from testifying that the passenger told the witness in front of the defendant that the passenger owned the van. The appellate court held that this testimony was not hearsay because it was offered to prove the defendant’s state of mind–that the defendant had a good faith belief that the passenger actually owned the van. See Alfaro v. State, 837 So.2d 429 (Fla. 4th DCA 2002).

 

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.

Tags: , , ,

Admissions Against Party Opponent (Hearsay Exception) Does Not Need to be Based on Party’s Personal Knowledge

Posted by David Adelstein on April 25, 2015
Uncategorized / Comments Off on Admissions Against Party Opponent (Hearsay Exception) Does Not Need to be Based on Party’s Personal Knowledge

Unknown

An admission against a party opponent is an important exception to the hearsay rule. I previously discussed this hearsay exception in detail because it is an exception that routinely applies in order to admit testimony / evidence at trial.

Recently, the case of Jones v. Alayon, 2015 WL 1545005 (Fla. 4th DCA 2015) discussed the applicability of this exception. This case was a wrongful death action brought by the decedent’s daughter as personal representative of the estate stemming from an automobile accident caused by an off-duty police officer that originally fled the scene of the accident. The jury awarded the plaintiff less damages than the plaintiff desired and the plaintiff appealed. One issue, amongst others, that the plaintiff argued on appeal was that the trial court abused its discretion by allowing hearsay evidence to come in that the decedent’s current wife spent decedent’s money on drugs and alcohol.

Prior to trial, the defense moved in limine to prevent evidence coming in at trial that the defendant was an off-duty police officer arguing that the prejudice of this evidence outweighs its probative value. The plaintiff argued that this evidence was relevant to damages and proffered testimony from the decedent’s current wife that she was traumatized to learn that the accident was caused by an off-duty police officer that originally fled the scene. The trial court denied the motion in limine and allowed this evidence to come in.

During trial, the defense cross-examined the decedent’s daughter (personal representative of the estate) and asked whether she ever told her sister (decedent’s other daughter that resided out of state) that decedent’s current wife spent money on drugs and alcohol. The decedent’s daughter testified no.   Then, during the defense’s case, the defense read into evidence, over a hearsay objection by the plaintiff, a portion of the deposition transcript from the sister where she testified that decedent’s daughter (personal representative of estate) told her that decedent’s current wife did not work and was spending decedent’s money on drugs and alcohol.   The plaintiff objected that this statement constituted hearsay within hearsay in that (a) the sister was relaying something said to her by decadent’s daughter (hearsay) and (b) what decedent’s daughter told her sister was obviously told to her by the decedent (hearsay) and decedent’s daughter had no personal knowledge of this fact. The defense countered that this testimony was admissible as an admission by a party opponent. The trial court agreed with the defense and overruled the plaintiff’s objection since decedent’s daughter was the personal representative of the decedent’s estate (the party plaintiff) and, thus, the statement fell within the admission by a party opponent exception to the hearsay rule.

 

Admission Against Party Opponent — Hearsay Exception

 

 

An admission against a party opponent is set forth in Florida Statute s. 90.803(18):

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….

An admission, however, does not need to be based on the party’s personal or firsthand knowledge. Jones, supra, at *3 citing Charles W. Ehrhardt, Florida Evidence, s. 803.18 (2014 ed.) (admission against party opponent does not need to be based on firsthand knowledge because when person makes relevant admissions or speaks against their interests it may be assumed they would not do so without an adequate investigation).

In this case, decedent’s daughter (personal representative of the estate) made a statement to her sister that decedent’s current wife spent decedent’s money on drugs and alcohol. Decedent’s daughter, however, apparently did not have any personal or firsthand knowledge about this fact. But, as the Fourth District expressed: “That it [statement] is based upon what someone else may have told Jones [decedent’s daughter – personal representative of estate] is unimportant, in that she would not make the statement without some investigation or indicia of reliability.” Jones, supra, at *3.

 

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.

Tags: , , , ,

Admissions Against a Party Are Admissible Exceptions to the Hearsay Rule

Posted by David Adelstein on February 20, 2015
Evidence / Comments Off on Admissions Against a Party Are Admissible Exceptions to the Hearsay Rule

 

images

Previously, I discussed the business records exception to the hearsay rule (of inadmissible evidence). 

Another exception to the hearsay rule deals with admissions against party opponents.  This is an important exception to the hearsay rule that will apply in civil disputes so that a witness can testify about a statement made by a representative / employee of an opposing party without this statement being deemed inadmissible hearsay.

This hearsay exception in Florida Statute s. 90.803(18) states that the following statements (admissions) are admissible:

(18) 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.

Businesses operate through people so it is common for a representative of a business or a person acting within the scope of their employment to say something to another person.  This happens all the time.   But, is this statement admissible against the person’s business in a business dispute?  The answer is yes under this hearsay exception.

For example, in Benjamin v. Tandem Healthcare, Inc., 93 So.3d 1076 (Fla. 4th DCA 2012), an estate filed suit against a nursing home for wrongful death when a resident died by choking on her food.  The nursing home argued, among other things, that the resident had not choked.  During trial, the estate offered the testimony of a person that heard the kitchen manager of the nursing home state that the resident choked on coleslaw even though the kitchen manager had not seen the incident.  This was admissible hearsay because the statement of the kitchen manager was an admission offered against a party (the nursing home).  The kitchen manager made the statement concerning a matter within the scope of his employment. And, such a statement is admissible even if the statement is not based on personal knowledge, as was the statement made by the kitchen manager that did not observe the resident choking.

In Scholz v. RDV Sports, Inc., 710 So.2d 618 (Fla. 5th DCA 1998), a former assistant coach filed a lawsuit against the team for wrongful termination. The former assistant testified that he was told by an employee of the team that he was fired because the team wanted to hire a black assistant and that the team had been pressured to hire a black assistant.   The statements made by the team’s employee were admissible hearsay because the statements were made by a person concerning a matter within the scope of their employment and, thus, were admissions offered against a party (the team).

In Troya v. Miami Beach Health Care Group, Inc., 780 So.2d 228 (Fla. 3d DCA 2001), a woman was injured when she slipped and fell at a hospital.  As soon as she fell, she overheard an unidentified hospital employee say there was too much wax on the floor.   This statement was admissible hearsay as an admission against a party opponent.

 

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.

Tags: , , ,

Application of the Business Records Exception to the Hearsay Rule

Posted by David Adelstein on January 18, 2015
Appeal, Evidence, Standard of Review / Comments Off on Application of the Business Records Exception to the Hearsay Rule

estimate-request

Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial.

Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence.  

What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule?

 

Standard of Appellate Review

 

Whether evidence is admissible under an exception to the hearsay rule, such as the business records exception, is subject to a de novo standard of appellate review. See Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014).   

 

Application of Business Records Exception

 

Landmark American Insurance Company v. Pin-Pon Corp., 2015 WL 71849 (Fla. 4th DCA 2015) is recent a case where the appellate court remanded the dispute back to the trial court for a new trial as to damages because the trial court improperly allowed evidence to fall within the business records exception to the hearsay rule.  The evidence should have been deemed hearsay and should not have been admissible under the business records exception.

This case involved an insurance coverage dispute over damages a hotel sustained from a hurricane. After trial, the hotel received a judgment against its insurer. The insurer appealed and an issue on appeal concerned whether the trial court erred in admitting the hotel’s repair (damages) estimate.

The hotel, to support its repair damages, introduced into evidence a composite exhibit through its architect.   The exhibit contained the architect’s repair scope of work (to repair the damage stemming from the hurricane). The exhibit also contained cost information (pricing the architect’s repair scope of work) that was not prepared by the architect. Rather, the cost information was prepared by the hotel’s general contractor with subcontractor invoices and proposals as the supporting back-up.

Because documents within the composite exhibit (such as the cost information) were not prepared by the architect and, thus, would ordinarily constitute hearsay, the hotel tried to establish that the cost information generated by the contractor and subcontractors would be admissible under the business records exception to the hearsay rule.

The architect testified that in its normal course of business it prepared a repair scope of work (drawings) to address the hurricane damage. This repair scope of work was given to the hotel’s contractor to cost / price. The contractor then submitted the cost / pricing information to the architect for review. The architect testified that these were the types of records it would ordinarily maintain in its ordinary course of business.   Based on this testimony, the trial court ruled that the business records exception applied (since the cost information would be hearsay) and allowed this composite exhibit to be introduced as evidence.

The appellate court, in a detailed discussion about the business records exception to the hearsay rule, explained:

For a record to be admissible under the business records exception, the proponent must 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. However, the fact that a witness employed all the “magic words” of the exception does not necessarily mean that the document is admissible as a business record.

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Stated another way, the witness just need be well enough acquainted with the activity to provide testimony.   To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.

Nonetheless, the fact that a document is incorporated into a business’s records does not automatically bring the document within the business records exception to the hearsay rule. Otherwise, every letter which plaintiff’s employer received in connection with the operation of his business and which was subsequently retained as part of his business records ipso facto would be fully competent to prove the truth of its contents.”

Pin-Pon Corp., 2015 WL at *7 (internal quotations and citations omitted).

The appellate court held that the architect did not properly lay the foundation for the cost documentation within the composite exhibit to establish that the documentation fell within the business records exception to the hearsay rule. In particular, the architect could not show: (i) the documentation was made by or from information transmitted by a person with knowledge, (ii) the documentation was made at or near the time of the event since the architect had no knowledge when the documentation was made, and (iii) whether the preparer of the documents had knowledge or received information from a person with knowledge.

Because this documentation should have been deemed inadmissible, the appellate court remanded the case back to the trial court for a new trial on damages since there was a reasonable possibility that the error in admitting this evidence contributed to the jury’s verdict (i.e., the error in admitting this evidence was not a harmless error).

This case demonstrates the importance in properly laying the foundation so that documents are properly admitted into evidence.  As mentioned above, business disputes generally involve parties admitting evidence under the business records exception to the hearsay rule.  Thus, knowing how to properly lay the foundation for such evidence is important because if that evidence is improperly admitted there is a good chance that error in admitting the evidence will not constitute a harmless error

 

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.

Tags: , , , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com