**Evidence Attack Sheet for the Florida Bar Exam**
*This guide is intended for review purposes only. Always consult the most current statutes, rules, and case law when preparing for the bar examination.*
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**I. Relevance (FRE 401, 402, and 403; Florida Statutes § 90.401, § 90.402, § 90.403)**
– **General Rule**: All relevant evidence is admissible unless a specific rule or law excludes it.
– **Relevance**: Evidence must be material (related to a fact of consequence) and have probative value (tends to make a fact more or less probable).
– **Exclusion for Prejudice, Confusion, or Waste of Time (403)**: Relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
**II. Hearsay (FRE 801, 802, and 803; Florida Statutes § 90.801, § 90.802, § 90.803)**
– **Definition**: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless an exception applies.
– **Non-Hearsay**: Prior statements by a witness, admissions by a party-opponent, and statements of opposing counsel during litigation are not hearsay.
– **Exceptions**: Regardless of the declarant’s availability, there are numerous hearsay exceptions including present sense impressions, excited utterances, then-existing mental, emotional, or physical condition, statements for purposes of medical diagnosis or treatment, records of regularly conducted activity (business records), and public records.
– **Confrontation Clause**: Under the Sixth Amendment, hearsay may be excluded in criminal cases if it violates the defendant’s right to confront witnesses against them.
**III. Witness Competency (FRE 601, 603; Florida Statutes § 90.601, § 90.603)**
– **General Competency Rules**: All persons are competent to be witnesses unless the court finds that they are incapable of expressing themselves or understanding the duty to tell the truth.
– **Oath or Affirmation**: Witnesses must declare to testify truthfully by oath or affirmation.
**IV. Examination of Witnesses (FRE 611; Florida Statutes § 90.612)**
– **Direct Examination**: Questioning of one’s own witness. Leading questions are generally not allowed unless necessary to develop the witness’s testimony.
– **Cross-Examination**: Questioning of an opposing party’s witness. Leading questions are permitted.
– **Impeachment**: The process of challenging the credibility of a witness. Can be done through prior inconsistent statements, bias, conviction of certain crimes, character for untruthfulness, and sensory deficiencies.
**V. Privileges (FRE Article V; Florida Statutes Chapter 90)**
– **Attorney-Client Privilege**: Protects confidential communications between attorneys and clients.
– **Spousal Privileges**: Includes both the spousal immunity (in criminal cases) and the confidential marital communications privilege.
– **Doctor-Patient Privilege**: In Florida, this privilege is limited compared to other jurisdictions.
– **Clergy-Penitent Privilege**: Protects confidential communications between a person and a clergy member.
– **Psychotherapist-Patient Privilege**: Covers confidential communications in the course of diagnosis or treatment of a mental or emotional condition.
**VI. Best Evidence Rule (FRE 1002; Florida Statutes § 90.952)**
– **Definition**: The Best Evidence Rule requires the original document to prove the content of a writing, recording, or photograph, unless an exception applies.
– **Exceptions**: Include loss or destruction of the original, the original is not closely related to a controlling issue, or the writing is not related to a legally operative fact (e.g., collateral matters).
**VII. Opinions and Expert Testimony (FRE 701-705; Florida Statutes § 90.701-90.705)**
– **Lay Witness Opinions**: Must be based on the perception of the witness and helpful to clearly understanding the witness’s testimony or determining a fact in issue.
– **Expert Witness Testimony**: Experts can offer opinions if their specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue. The expert’s opinion must be based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.
– **Daubert Standard**: Florida follows the Daubert standard for admitting expert testimony, focusing on the methodology’s reliability.
**VIII. Authentication and Identification (FRE 901, 902; Florida Statutes § 90.901, § 90.902)**
– **Requirement**: To admit evidence, it must be shown that the item is what it purports to be.
– **Methods**: Can include testimony from a witness with knowledge, non-expert opinions on handwriting, comparison by an expert or the trier of fact, distinctive characteristics, and more.
**IX. Presumptions (FRE 301, 302; Florida Statutes § 90.301, § 90.302)**
– **Presumptions in Civil Cases**: A presumption places the burden of producing evidence on the party against whom it is directed.
– **Presumptions in Criminal Cases**: Presumptions must not infringe on a party’s constitutional rights (e.g., the presumption of innocence).
*By using this Evidence Attack Sheet, law students can organize their study and recall the key rules related to evidence for the Florida Bar Exam. Always keep abreast of changes in the law that might affect exam content.*
*This guide does not constitute legal advice and is for educational purposes only.*