A Primer on Florida Evidence Law
When it comes to navigating the legal landscape in Florida, an understanding of the Florida Rules of Evidence is essential for all legal practitioners. The Florida Rules of Evidence provide the framework for introducing evidence in civil and criminal cases, helping to ensure fairness and due process in the courtroom. These rules also serve as a reference point for judges, attorneys, and parties alike, dictating what is permissible testimony, what types of documents can be submitted as evidence, and when certain pieces of information should be disclosed or protected.
The Florida Rules of Evidence govern the admission of evidence in both civil and criminal proceedings in the state. Their primary purpose is to promote fairness in trials by ensuring that only relevant, material, and competent evidence is presented in court. In doing so, the rules help reduce confusion, expedite the legal process, and facilitate the discovery of the truth.
The Florida Rules of Evidence are codified in the Florida Statutes, specifically under Title VII: "Evidence . " Each rule outlines specific legal principles and exceptions regarding the admissibility of testimony, documentary evidence, and other types of information that can impact the outcome of a court case. For example, hearsay evidence is generally inadmissible under the Florida Rules of Evidence, but there are several exceptions to this general rule that allow for certain out-of-court statements to be admitted as evidence.
The rules are not set in stone, however. They can be amended and updated through legislation over time, and Florida courts having the authority to interpret and apply the rules to a given situation. This flexibility allows the system to adapt to new legal challenges and evolving social norms, ensuring that the process remains fair and relevant in modern society.
It is crucial for all legal professionals to have a good working knowledge of the Florida Rules of Evidence. Whether you are an attorney, judge, or other legal professional, understanding how to identify, present, and object to evidence is essential for ensuring a fair trial and ensuring that justice is served.
General Provisions of the Florida Evidence Code
The Florida Rules of Evidence, adopted by the Florida Supreme Court and codified as both long and short citations F.S. 90.101 et seg. and F.S. Fla. Stat. §§ 90.101-90.902, contain provisions applying to all actions. The provisions of article I, with a few exceptions, are general in nature and applicable to all actions. These rules govern the admissibility of evidence "in actions, cases and proceedings in the courts of this state," but they also apply to the admissibility of evidence in administrative proceedings. While the rules apply to the admission of evidence in administrative proceedings, they do not apply to rule making.
The official rules are divided into sections, the first of which is known as "General Provisions" which apply to all actions, cases and proceedings in the courts of this state. Article II is divided into two divisions, division 1 discusses general provisions, and discusses judicial notice, presumptions, relevancy and remoteness, inadmissible evidence and excluded relevant matter. Division 2, which begins with 90.501 and runs through 90.704, deals with specific provisions concerning witnesses or evidence. Specific provisions pertaining to witnesses include examination of witnesses, competence to testify, opinion and expert evidence, opinions on ultimate issues, communicable diseases, and privileges. Spouses, and jurors are other areas of specific provisions leading to the judicial determination for admissibility.
Specific provisions pertaining to evidence include hearsay, the best evidence rule, evidence of character, competency of an interpreter, authentication and proof of original outgoing telephone record, certain admissions made in a civil action, and a presumption of correctness in a jury instruction.
Relevancy and Its Limitations
An important concept for personal injury or wrongful death lawyers is the concept of relevance. The basic rule is that evidence is admissible if it is relevant. The Florida rules of evidence state: Relevant evidence is admissible unless excluded by this code or other rules adopted pursuant to constitutional authority. Evidence which is not relevant is inadmissible. Even if evidence is relevant, however, it may be excludable under the rules of evidence. For example, the rules state: Although relevant, evidence is not admissible if the probative value is substantially outweighed by prejudice, confusion, or waste of time or if it will mislead the jury. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, of misleading the jury, or of needless presentation of cumulative evidence. Not all relevant evidence can be presented to a jury. Rarely, however, will a trial judge rule that evidence is inadmissible because it is not relevant. Relevant evidence is defined by the rules of evidence. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." For example, insurance coverage is a topic that is likely to come up in a personal injury case. Insurers are entities whose business is to make money. Like any other business, when they make a profit we, their customers, pay more money. Florida law states: [T]he amount paid a plaintiff in settlement of or as an award in a tort action shall not operate to increase the premium for insurance to such plaintiff, and evidence concerning liability insurance matters shall be inadmissible as to any party except as to the extent that such evidence is deemed relevant by the court to the issue of punitive damages. Florida Statute 768.042(1). So, in a Florida court, even though the fact that someone is insured may be relevant to the case, it is inadmissible in most instances.
Rule on Hearsay Evidence
Why do we have rules of evidence? As a practical matter!
Let’s start with a definition – which is found in Florida Statute 90.801(1)(c). Hearsay means a statement made out of court – not in front of the judge and jury – that is offered to prove the truth of the matter asserted. It is based on perceptions that are second-hand, and typically inadmissible because statements made without first hand knowledge are usually less reliable. It comes from the Latin word "nulla voce" meaning "beware of the man who only brings a single voice."
The Florida Rules of Evidence (or FRE) then provide multiple exceptions to the hearsay rule.
Section 90.804 lists the exceptions to admissibility where the declarant (the person saying the statement) is not available in court. In such circumstances, the out-of-court statement can be listed as an exception to the rule, including the following:
- Statement of First Responder (90.804(2)(a)). For example, if a police officer responded to a bar fight, and as an element of rendering appropriate care to the victim of the altercation, the officer made an out-of-court statement about what happened, that statement might be admissible at trial and considered an exception to the hearsay rule.
- Excited Utterance (90.804(2)(c)). Think of a headline statement of any breaking news. If something suddenly happens, there is often a quote by a witness about the event that sounds very spontaneous and emotional, as it appears to be a reaction to the event. These are considered spontaneous statements and may be admitted at trial.
- Incident Statements (90.804(2)(h)). We have seen examples of this in recent news involving, for example, the Las Vegas concert shooting. Onlookers were able to document data through social media right as the event unfolded, and later provided those accounts to the Sheriff’s department.
- Present Sense Impression (90.803(1)). Example: "I just saw a blue Ford truck leave the scene of the retirement home burglary." The statement is considered an impression of something that was perceived at or near the time it occurred.
For demonstrative examples of different types of hearsay statements, see http://lawresources.sftt.com/content/read-what-is-truth-of-matter-asserted/ which provides a creative matrix of different hearsay statements that might come into evidence at trial.
Disallowing hearsay at trial to prove the truth of the matter asserted is a crucial principle of Florida (and federal) Rules of Evidence. If a statement is reliable enough to be true, it is best proven by the first-hand observer who was capable of perceiving, processing, committing to record, and then recalling his/her statement in a courtroom in front of a judge and jury.
Character Evidence and Its Exceptions
Character evidence, defined as testimony or documents aimed at showing the character of an individual, is an important part of many a trial in the Florida courts. It can be a means used by the prosecution to establish motive or intent, or evidence of a person’s character for truthfulness under the Florida Rules of Evidence. Character evidence can also stand or fall as the trier of fact and judge its credibility against competing evidence. But its admissibility in a court of law depends on the purpose for which the conduct was offered. The Florida Courts allow character evidence to be used in cases involving crimes of dishonesty, such as fraud or theft. Under Florida Statute 90.404(2)(b)(1)-(3), when character evidence is offered for a crime involving falsehoods – such as perjury, or fraud, or even theft – the evidence may be admitted for the purpose of proving that the accused committed the crime, "if it unequivocally proves or disproves the accused’s guilt." The rationale is that evidence of a person’s character is admissible when his or her character is an essential element of a charged crime. In practice, however, character evidence is often misconstrued and its principles misapplied. A victim’s character for truthfulness, for example, is not admissible in a trial for battery if offered to bolster the credibility of the complaining witness. Generally speaking, the Florida Rules of Evidence follow the rule that character is never admissible to prove conduct, and will only be admitted if it directly proved or disproved a party’s guilt and was not used merely to support a conclusion.
Florida Rule of Evidence 404(a)(2)(A) prohibits character evidence of a person to prove that he or she acted in conformity with a character trait on a particular occasion. However, when the issue of the character of the alleged victim is essential to the case, Florida Statute 90.404(2)(c) allows a defendant in a case charging a crime of violence, as defined in Florida Statute 768.095, to admit evidence of the character of the alleged victim to prove conduct in conformity with a character trait, i.e., violent behavior. Moreover, that evidence may be admitted without regard to whether the alleged victim has introduced evidence of his own character to contravene those traits. Florida Statute 90.404(2)(a) and (c). Admissibility of character evidence is determined by examining the purpose for which it is offered. In order for the evidence of character to be admissible, the character must be a material point in the case and evidence of pertinent character traits must be offered by the defendant. See State v. Albritton, 476 So. 2d 158, 162 (Fla. 1985); Lakos v. State, 363 So. 2d 366, 368 (Fla. 1978), citing Hiers v. State, 67 So. 2d 321 (Fla. 1953); see also Johnson v. State, 614 So. 2d 691, 695-96 (Fla. 4th DCA 1993); but see Goodbread v. State, 525 So. 2d US 586, 588-89 (Fla. 1st DCA 1988)(submission of evidence to establish guilt not implicit acceptance of defense A that shoots the arrow in the other direction).
Privileged Communications in Florida Evidence Law
The Florida Rules of Evidence, Chapter 90 of the Florida Statutes, concern the admissibility of evidence in civil and criminal cases. Generally, hearsay and irrelevant evidence is inadmissible. The Rules also contain within it several privileges held by certain persons that can render otherwise hearsay and irrelevant evidence admissible in litigation.
A common issue in civil litigation under the Rules is whether the privilege applies and whether the privilege has been waived or is inapplicable due to other exceptions in the Rules.
In Florida, the following relationships are privileged:
In a recent case, a party objected to the production of documents regarding treatment provided under the preferred provider system because of the privilege created by the Florida patient-physician statute . In that case, the Eleventh Circuit Court of Appeals held that the privilege could not be used to prevent discovery of the existence of the identity of the individual(s) requesting the treatment, and ordered the documents to be produced. See United States v. Moore, 54 F.3d 159 (11th Cir.1995). Moreover, Florida Rule of Evidence 90.502(2)(c) excludes from the attorney client and physician-patient privileges any communication reasonably necessary to accomplish the purpose for which the relationship was established. These statutes may not preclude discovery regarding the existence of the communications, but only the content of the communications, depending on the circumstances and subject of the communication.
Opinions and Expert Testimony
The use of expert witnesses is specifically addressed in the Florida Rules of Evidence. The Florida Supreme Court has held that two things must be met in order for an expert witness to be qualified as expert testimony under Rule 702. See Landers v. Milton, 76 So. 2d 49 (Fla. 1954); see also Fla. Stat. §90.702; McClain v. State, 831 So. 2d 1175 (Fla. 4th DCA 2002). First, the proffered testimony must be relevant and will assist the trier of fact (the jury or Judge if it is a bench trial). Second, the proffered witness must possess expertise and skills that would aid the fact-finder. Fla. Stat. §90.702. Under Florida Rule of Evidence 704, expert testimony requires that an expert witness may give opinion evidence that is otherwise admissible if the witness is properly qualified and if the testimony goes only to matters that are within the expert’s knowledge, skill, experience, training, or education. Fla. Stat. §90.704; De La Rosa v. Fla. Dept. of Transp., 745 So. 2d 1010 (Fla. 1999), en banc; Williams v. State, 703 So. 2d 417 (Fla. 1997). The expert witness cannot testify as to opinions on the ultimate issues of the case. See Fla. R. Evid. 704(a); McClain v. State, 831 So. 2d 1175; Stokes v. State, 548 So. 2d 198 (Fla. 3d DCA 1989). The basis of the opinion evidence must be disclosed prior to the testimony. De La Rosa, 745 So. 2d at 1012. Where the trial court determines that an expert witness is using generally accepted principles, the trial court has broad discretion in allowing the opinion and should not reverse it unless it abused its discretion. Id.; see Pervall v. State, 716 So. 2d 806 (Fla. 3d DCA 1998). While courts have held that the factors traditionally used to qualify an expert include general knowledge, practical experience, training, and observation, it is also important to confirm that the legal issues can be addressed by the proposed expert. Landers v. Milton, 76 So. 2d 49 (Fla. 1954). The use of expert testimony can be valuable and essential in cases that involve complicated medical and scientific issues.
Florida Evidence Code in Practice
In practice, the Florida Evidence Code is frequently called into play during criminal trials, civil litigation, and administrative hearings. Although the code’s rules primarily focus on how evidence is contained in documents and physical objects, they also lay an evidentiary foundation for witness testimony.
Criminal Trials
The case of State v. Belanger illustrates the Florida evidence code involved a real-world application. In this case, a woman was charged with shoplifting. The trial court wanted to introduce a new "tag scan" technology used to deter retail theft. In admitting the proposed evidence, the trial court stated that the company that developed the tag scan technology had been established as an expert witness during previous cases. When moving to introduce the evidence, the prosecution also acknowledged that the technology had been accepted by the courts.
The defendant appealed the issue but lost because the appellate court stated that the lower court had applied the correct legal standard when it admitted the evidence.
Civil Litigation
The 2015 case of Gentry v. St. Lucie County is a civil trial that also demonstrates an application of the Florida Evidence Code. In this case, the defendant was sued for purchasing property via a tax deed sale between 2008 and 2012. The plaintiff attempted to use the recorded tax deed as evidence of title ownership. The defendant objected to the tax deed and asserted that it was inadmissible under the Florida Evidence Code § 90.902. The judge overruled the objection.
The defendant’s changed position sparked an interlocutory appeal. Here, the appellate court explained that the tax deed was admissible as evidence because it was self-authenticating evidence under § 90.902(1) of the code, which states that an evidentiary document does not need further proof to establish its authenticity when documents are recorded according to the law.
Administrative Hearings
Evidence rules also come into play in administrative hearings. For example, in the 2003 case of Florida Department of Business and Professional Regulation v. Cruz, the Department attempted to admit into evidence a computer disk that allegedly contained audio recordings of expert testimony before the Florida Commission on Human Relations. In this case, the defendant objected to the proposed evidence on the grounds that the disk was an unauthenticated component of a de facto "sound recording" and inadmissible pursuant to Florida Evidence Code §90.951.
The applicable code section states that only original recordings or transcripts of recordings can be admitted into evidence as verbatim accounts of testimony. Because the Florida Department only had the disk containing what it claimed were audio recordings and represented that it had no ability to produce a copy of any transcripts of that testimony, the appellate court reversed the lower court’s admission of the computer disk into the record.
Amendments and Important Changes
On January 18, 2023, the Florida Supreme Court made a significant move towards the inclusion of the Daubert standard for the admissibility of expert testimony by amending the Florida Evidence Code. Specifically, the court’s per curiam opinion in Anderson v. McKinna, No. SC22-596, 48 Fla. L. Weekly S513 (Fla. Jan. 18, 2023), adopted the new expert testimony amendments from the United States Federal Rules of Evidence, thus superseding the Frye standard that had prevailed in Florida for decades.
The amendments to the Florida Rules of Evidence expanded upon those proposed by the Evidence Review Commission of the Florida Bar in its 2020 Report on Proposed Amendments to the Florida Evidence Code. The ABA’s adoption of Daubert as a reliability-based test for admissibility was both squarely rejected by the U.S. Supreme Court’s majority in Frye v. U.S., 293 F. 1013, 1014 (D.C. Cir. 1923), and also suggested, if not decisively announced, in the now-infamous footnote 9 of its decision in Joiner v. General Electric Company, 522 U.S. 136, n. 9 (1997). Notably, the U.S. Supreme Court came down on the side of Joiner.
After years of flux, and following the decision in Joiner, Daubert was subsequently adopted at the federal level.
As discussed below, the new amendments to the Florida Rules of Evidence effectively incorporate Daubert, rejecting Frye and adopting a version of the Daubert standard used by some federal courts and other jurisdictions.
Adverb "Reliably" The amendment to section 90.702 of the Florida Evidence Code centralizes reliability, requiring all expert testimony to be supported by "sufficient facts or data" and to be "the product of reliable principles and methods." The same reliability standard will also continue to apply to expert testimony on specialized knowledge, as will the requirement for sufficient facts or data.
Substantive Qualification The new amendments to section 90.702 also removed the requirement that expert witnesses "shall possess knowledge, skill, experience, training, or education." Now, the requirements simply state that the expert must "be qualified as an expert by knowledge, skill, experience, training, or education."
Admissibility of Opinion Testimony The section 90.704 amendments to the Florida Evidence Code eliminated the second clause from the prior version of the statute, which previously stated that "[a]n expert may render an opinion or offer testimony in the form of an opinion without first testifying to the underlying facts or data." The new section now provides that an expert’s opinion can only be based "on facts or data that the expert has personally observed or is made aware of or has been made aware of at or before the hearing."
The Florida Supreme Court’s decision to adopt Daubert sounded the death knell for Frye and settled the contentious debate between those who sought to bring Florida in line with the federal courts at the expense of Frye and those who sought to uphold Frye by avoiding the adoption of Daubert.
The decision also has implications for how litigators practice in Florida. As noted by Chief Justice Carlos Muñiz in his concurrence to the court’s decision in this case, those who are not careful in their preparation of expert witnesses can now be subject to disqualification.
Conclusion of the Florida Rules of Evidence
As we have seen, the Florida Rules of Evidence play an essential role in determining the admissibility and use of evidence during legal proceedings in Florida state and federal courts. Whether you are a legal practitioner or a litigant representing yourself, understanding these rules is crucial to effectively navigating Florida’s complex legal system.
At the core of the Florida Rules of Evidence is the principle that evidence must be both relevant and reliable to be admissible in court. This means that any evidence presented must have a logical connection to the case at hand and must be shown to be what it purports to be. This principle helps ensure that only pertinent and trustworthy information is considered by judges and juries.
When applying the Florida Rules of Evidence, it is important to remember that there are many nuances and exceptions that can come into play. Items such as hearsay, expert witness testimony, and privileges all have specific provisions in the rules. Factors such as reliability, necessity, the purpose of the evidence, and the source from which the evidence was obtained all impact its admissibility and reception in the courtroom.
In addition to understanding the rules themselves , legal professionals and litigants must also be mindful of the broader contexts in which the rules operate. Understanding the objectives of the rules of evidence, as well as the strategies behind the use of evidence in various types of cases, will help keyword searches of the rules perform more effectively and efficiently. Researching relevant portions of the rules first will help tailor your essential research to your case while also informing you of important nuances and strategies.
To further hone your knowledge of the Florida Rules of Evidence, find opportunities to review how they are applied in actual cases. Reviewing trial transcripts, for example, will help you develop a better understanding of how specific rules are invoked and applied.
In conclusion, the Florida Rules of Evidence serve as a vital framework for determining the use and admissibility of evidence within Florida’s legal system. With the right strategies, practitioners and litigants are able to navigate this complex system with confidence and success. Both theory and practice play an important role in the analysis of the Florida Rules of Evidence, and understanding them both is key to employing effective legal strategies throughout the course of your case.