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ProveMyFloridaCase.com > Evidence (Page 4)

Recipient of Trial Court’s Error Needs to Prove Harmless Error

I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant). Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling...

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State of Mind Hearsay Exception

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: Prove the declarant's state of mind,...

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Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

The trial court allowed certain testimony / evidence to be introduced at trial.  I objected, but the trial court overruled my objection. That evidence was introduced and I lost the trial.  I am considering an appeal based on the trial court's admissibility of this evidence. "Rulings on the admission of evidence are reviewed [on appeal] under the abuse of discretion standard [of review]."  Cantore ex rel. Cantore v. West Boca Medical Center, Inc., 2015 WL 5603449 (Fla. 4th DCA 2015).  This discretion, however, is limited by the Florida Rules of Evidence.   Johnston v. State, 863 So.2d 271, 278 (Fla. 2003).  For...

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Arbitration and the Lax Rules of Evidence

I'm sure you have heard of arbitration.  Arbitration is a method of dispute resolution.  If parties want to arbitrate their dispute as opposed to litigate their dispute in court, they need to include an arbitration provision in their contract.  This is because arbitration is a creature of contract and you cannot be compelled to arbitrate a dispute that you did not contractually agree to arbitrate as the method of dispute resolution.  (If you are arbitrating your dispute, then you are not litigating your dispute in court.) In arbitration, the rules of evidence are lax.  For example, Rules 35 and 36 of the Construction Industry...

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Judicial Notice of a Court’s File does NOT Circumvent Inadmissible Hearsay

Judicial notice is the “cognizance of certain facts which judges or jurors may properly take and act upon without proof, because they already know them.” Wyatt v. State, 270 So.2d 47, 48 (Fla. 4th DCA 1972) (quotation and citation omitted). A court may take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.” Fla.Stat. s. 90.202(6). However, just because a court can take judicial notice of records in the court’s file cannot be used to circumvent otherwise inadmissible hearsay statements...

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Expert Witnesses can Rely on Hearsay….But…

Expert witnesses can rely on hearsay (or inadmissible evidence) in arriving at their expert opinions subject to exceptions set forth below. Vega v. State Farm Mut. Automobile, 45 So.3d 43 (Fla. 5th DCA 2010) (expert automobile appraiser was entitled to rely on other persons knowledge in vintage automobiles to arrive at estimated value of vintage vehicle); Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA 1996) (expert allowed to rely on inadmissible study to arrive at expert opinion). Indeed, Florida Statute s. 90.704 supports this point by stating: If the facts or data are of a type reasonably relied upon by experts in...

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Fact Witness Testimony Must be Based on Their Personal Knowledge

Fact witnesses may only testify as to matters within their personal knowledge.   Fla.Stat. s. 90.604. “[A fact] witness is limited to testifying to facts that are within the witness's knowledge rather than the witness's speculation and conjecture.” A&A Electric Services, Inc. v. Jurado, 40 Fla.L.Weekly D1963a (Fla.2d DCA 2015). For example, in Jurado, the plaintiff was testifying as to a document he signed and the principal of the defendant signed. In doing so, he testified as to the principal’s intent in signing the document. But, how did he know the principal's intent? Wasn’t he merely speculating as to the principal's intent? Of course...

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Rule of Completeness so Entire Writing or Statement is Contemporaneously Introduced

Florida Statute s. 90.108(1) provides: “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.” This is referred to as the rule of completeness. The objective behind this rule of completeness is to avoid misleading the jury with a statement that is based on incomplete information. See Harden v. State, 87 So.3d 1243,1249 (Fla. 4th...

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Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

Expert witnesses are an important part of civil trials (and criminal trials).   Parties utilize expert witnesses at trial to render expert opinions. But, a testifying expert does not need to be at trial live (or, in person) to render an expert opinion.   Florida Rule of Civil Procedure 1.330(a)(3) provides in pertinent part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:…(F) the witness is an expert or skilled witness.” Similarly, Florida Rule of Civil Procedure 1.390(b) provides: “The testimony of an expert…witness may be taken at any time...

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