23 April

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A Promissory Note is NOT Hearsay

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...

05 March

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

Posted by David Adelstein

in Evidence

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...

16 February

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Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

Posted by David Adelstein

in Appeal, Evidence

If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases. In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining...

23 January

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Excited Utterance Hearsay Exception

Posted by David Adelstein

in Evidence

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...

10 January

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Hearsay can Only be Admitted for Another Purpose if Such Purpose is a Material Issue

Posted by David Adelstein

in Evidence

Sometimes, a party will try to introduce hearsay by arguing that that the document/testimony is not being offered to prove the truth of the matter asserted (hearsay), but instead, is being offered for another purpose. This is an avenue to admit evidence that would otherwise be excluded under the hearsay exclusion. This was the situation in the employment litigation case, Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015). In this case, the University terminated a tenured professor for cause and the professor sued. At trial, the University offered into evidence a report prepared by an...

09 December

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Witness Laying the Foundation for the Admission of Business Records

Posted by David Adelstein

in Evidence

More on the business records exception to the hearsay rule and the importance of laying the proper foundation to introduce business records under this exception. This is a must-know hearsay exception to any business-related dispute; and, it is imperative to understand the required testimony of the witness utilized to lay the foundation for the business records exception. In Sanchez v. Suntrust Bank, 4D14-2457 (Fla. 4th DCA 2015) – yes, a mortgage foreclosure case—the lender introduced a screenshot of its record keeping system, the payment history with the borrower, default letters, and a payoff calculation. The lender introduced this documentation through the...

01 November

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State of Mind Hearsay Exception

Posted by David Adelstein

in Evidence

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,...

26 September

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

Posted by David Adelstein

in Evidence

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...

12 September

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Expert Witnesses can Rely on Hearsay….But…

Posted by David Adelstein

in Evidence, Expert Testimony

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...

06 August

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Rule of Completeness so Entire Writing or Statement is Contemporaneously Introduced

Posted by David Adelstein

in Evidence

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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