a.   Big Hearsay Exceptions- Declarant Unavailability REQUIRED

i. Former Testimony – testimony given in earlier proceeding by person is ADMISSIBLE IF:

1.   Declarant UNAVAILABLE – privilege, refusal to testify, death, sickness, memory fails

a.   FL: Former Testimony:

i. Criminal Case: requires W unavailable for H/S exception to apply

ii. Civil Case: does NOT require W be unavailable

2.   Party AGAINST whom TESTIMONY is OFFERED had either:

a.   In civil OR criminal case, had an opportunity to cross-examine the person and motive to examine was similar to motive it has now

b.   In CIVIL case, party against whom testimony is offered was in privity with a party to earlier proceeding who had opportunity and similar motive to examine

3.   Requirements:

a.   Meaningful opportunity to cross

i. Same issue and motive

ii.            Party against whom offered must have been

1.   A party in the first proceeding OR

2.   In a civil case, at least in privity with party in the first proceeding

iii.           Grand jury testimony of an unavailable declarant that is offered against the accused in a criminal case would NOT qualify because the accused does not have an opportunity to cross-examine grand jury Ws

b.   Unavailability of the Declarant

i. Declarant is unavailable IF court exempts declarant from testifying due to:

1.   Privilege

2.   Declarant refuses to testify because of privilege or other reason

3.   Declarant’s memory fails

4.   Declarant is dead or sick

5.   Proponent of the statement cannot procure declarant’s attendance by process or other reasonable means

ii.            Statement Against Interest – declaration of person, now unavailable as a W, against his pecuniary, proprietary or penal interest (or statement which would expose declarant to civil liability or which would tend to defeat a civil claim by declarant) AT TIME STATEMENT was made

1.   UNAVAILABLE

2.   Limitation – statement tending to expose declarant to criminal liability and offered to exculpate accused is NOT admissible UNLESS corroborating circumstances clearly indicate trustworthiness of statement

a.   i.e. 3^rd party confession

3.   Statement Against Interest                   vs.       Admission

a.   At time statement made            ---       at time of trial

b.   Made by anyone                      ---       made by party

c.   Requires personal knowledge   ---       no knowledge

d.   Unavailability                           ---       doesn’t matter

iii.           Dying Declaration – only in homicide case or civil action – statement made by declarant while believing the his death was imminent, concerning the cause or circumstances of the impending death  (Does Not Apply to Attempted Murder)

1.   Requirements

a.   Homicide OR ANY civil

b.   Declarant UNAVAILABLE at TIME OF TRIAL, need not actually die

c.   State of mind à made under a sense of IMPENDING death

d.   Content Limitation à must concern cause or circumstances of impending death

i. Can’t be an opinion by dying declarant – MUST be an affirmative statement

1.   “Jennifer did it!” NOT “Jennifer hates me so I think she would kill me for my job.”

2.   FL: Dying Declaration – applies to ALL cases, both criminal and civil

iv.           FL Dead Man Statute Substitute: Statement by Deceased of Ill Declarant SIMILAR to Statement Previously Admitted

1.   Declarant unavailable b/c of death or illness

2.   Action against estate or trust of a deceased or representative of mentally incompetent

3.   Oral or written statement made by Declarant may be admissible if involves same subject matter as previously admitted statement made by same Declarant

b.   Big Hearsay Exceptions: Availability IMMATERIAL

i. Spontaneous Statements – unavailability NOT REQUIRED because the law regards prior statements as being at least as reliable as present in-court testimony

1.   Present/Existing State of mind at issue – a statement of a declarant’s then-existing state of mind is ADMISSIBLE as circumstantial evidence tending to show that the intent to do something in the future was carried out

2.   Past Recollection Recorded – where W’s memory has failed to have been refreshed, W may read into evidence statements from a writing, provided:

a.   W must have once had knowledge of the matter, and

b.   W wrote or adopted document when fresh in memory

3.   Statement /Declaration of existing intent to prove intended future act was done– “Hillman Doctrine”

a.   Can show person MIGHT HAVE carried out intention to do X

4.   Excited utterance

a.   3 requirements:

i. Startling event – must cause excitement in even a poised person

1.   Language - !, “Good heavens!”, screamed, shouted

ii. Made under stress of excitement – can have time lapse if still under stress

iii. Concerns facts of startling event

5.   Present Sense impression – statement describing/explaining event WHILE declarant was perceiving the event OR IMMEDIATELY thereafter

a.   Precise contemporaneousness – no time lapse (declarant describing incident at time it happened)

b.   No need to excite

6.   Declaration of PRESENT physical condition – admissible to show condition

a.   Admissible BY ANYONE who hears it

b.   This is like a specific kind of present sense impression

7.   Declaration of PAST physical condition – admissible IF made for purposes of diagnosis or treatment and describing past condition is pertinent to diagnosis/treatment

a.   Admissible ONLY IF made to medical personnel

b.   Pertinent to diagnosis or treatment, even if diagnosis is only for purpose of giving testimony

c.   Admissible for truth

d.   FL: Declarations of Physical Condition- Child Sex Abuse Victims

i. Statements of child victim identifying perpetrator to medical personal are not admitted under H/S exception for statements made for purpose of obtaining medical diagnosis/treatment

ii. FL has special H/S exception: Child Victim of Abuse, Neglect or Sexual Abuse (see below)

ii.            Judgment of FELONY CONVICTIONS

1.   Judgments of felony convictions are ADMISSIBLE in criminal AND civil action to prove ANY fact ESSENTIAL to the judgment

iii.           Business Records – records made AT OR NEAR the time by, or from information transmitted by, a person with knowledge are kept in REGULAR COURSE OF BUSINESS AND IF IT WAS THE REGULAR COURSE OF THAT BUSINESS TO MAKE THE RECORD UNLESS judge determines that source of information indicates lack of trustworthiness

1.   Comes in to show what information is IN record or what was LEFT OUT

a.   Allows the record to substitute FOR the in-court testimony of the employees

2.   Rationale: employee’s job to keep record or fired; otherwise would have to drag employees into court to testify

a.   Ask whether employee would be able to testify to this matter

b.   Ask whether entry is GERMANE to the business

3.   Person making record does NOT need first-hand knowledge of information being recorded

4.   Police Reports = Business Record?

a.   In CIVIL case, YES

b.   In CRIMINAL case, NO

5.   FL – Foreign Records of Regularly Conducted Business:

a.   Can be a foreign record of business in a criminal case (still needs to meet above requirements and record needs to be a copy of the original)

iv.           FL: Official Records and Other Official Writing:

1.   Public Records and Reports:

a.   Factual findings from legally authorized investigations are NOT admissible

2.   Judgments- Prior Criminal Conviction Not Admissible

a.   No exception for criminal convictions

b.   They are not admissible as substantive evidence

3.   Learned Treatise:

a.   No H/S exception for learned treatise

b.   Admissible ONLY to attack credibility of an expert once they have been established as authoritative

c.   No req’t that expert rely upon them in forming opinion

v.            FL: Child Victim of Abuse, Neglect, or Sexual Abuse

1.   Age Req’t: H/S statements of victim w/physical, mental, emotional or developmental age of 11 or less

2.   Content: statement of ANY act of abuse, neglect, sexual

3.   May be admitted if:

a.   Time/content/circumstances of statement provide sufficient safeguards of reliability

b.   Child either testifies or is unavailable as witness (video tape can satisfy this)

4.   If H/S statement reliable admissible even if contradict earlier statement

5.   Unavailability:

a.   Reasons why child might be found unavailable:

i. Incapable of understanding duty to tell the truth

ii. Incapable of expressing himself to be understood

b.   If child unavailable there must be trustworthy corroborative evidence of crime

6.   Notice:

a.   In criminal action

b.   D must be given 10 days notice of such evidence

c.   W/ full disclosure of content of statement and time made

vi.           FL: Statements of Abused Elderly or Disabled Adult          

1.   H/S exception for out of court statements of elderly or disabled adults

2.   Describing: acts of abuse, neglect, assault, battery, or any violent act committed against them

3.   Declarant must either testify or be unavailable

a.   Note: Florida Supreme Court found it unconstitutional because does not satisfy requirements of Confrontation Clause.  Not firmly rooted nor provide sufficient guarantees of trustworthiness

vii.          FL: NO Residual Catch-all exception in Florida

c.   Multiple Hearsay – look for statements within statements...need exceptions for both to come in

d.   Sixth Amendment Right of Confrontation

i. Even though an out-of-court statement qualifies as an exception to the rule against hearsay, the accused’s 6^th Amendment right of confrontation may render the statement INADMISSIBLE WHEN it is offered against the accused in a criminal case

1.   Crawford v. Washington à In a CRIMINAL case, out-of-court statements, EVEN IF they fit a hearsay exception, will NOT be admitted IF

a.   The out-of-court statement is offered against the accused in a criminal case

b.   The declarant is unavailable at trial

c.   The out-of-court statement was “testimonial” AND

i. “Testimonial” à a hearsay statement is testimonial if declarant makes a statement that he anticipates will be used in the prosecution or investigation of the crime

1.   Includes:

a.   W statements made to police or other law enforcement officials IN RESPONSE TO police questions

b.   Any testimony given at formal proceeding – preliminary heating, grand jury, or motion to suppress

c.   Guilty plea allocutions of co-conspirators to prove that a conspiracy existed

d.   Forensic lab reports revealing drugs, fingerprints, firearms evidence, blood, DNA, etc.

d.   The accused had no opportunity to cross-X the declarant’s testimonial statement when it was made

e.   UNLESS the prosecution demonstrates that the Δ has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial

• Constitutional Law
• Contracts
• Criminal Law
• Criminal Procedure
• Evidence
• Property
• Torts
• Florida Civil Procedure
• Florida Constitutional Law
• Florida Corporations
• Florida Equity
• Florida Family Law
• Florida Partnerships
• Florida Professional Responsibility
• Florida Wills
• Florida Trusts, and
• Florida Criminal Procedure

Here's a sample from the Florida Constitutional Law outline: