I. ADMISSIBILITY OF HEARSAY
A.
Definition of Hearsay
1.
Out-of-Court Statement
Keen v. State, 775 So.2d 263 (Fla. 2000)(Officer's testimony that after
communicating with insurance company and defendant's brother, police officer
prepared an arrest warrant for the defendant was hearsay because the clear
inference was that the insurance companies and brother said that the defendant
was implicated in a murder.).
Cedillo v. State, 949 So.2d 339 (Fla. 4th DCA 2007)(Officer’s testimony that
after interviewing witness defendant became a suspect in the case was hearsay
“even though the specific statement of the non-testifying witness is not repeated.).
Diaz v. State, 890 So.2d 556 (Fla. 5th DCA 2005)(Testimony of undercover
officer that he had a conversation with a person which led him to believe that the
defendant was a drug dealer. "If the declarant's statement would be hearsay if the
witness directly quoted the declarant, then the testimony is inadmissible no matter
how circumlocutory the witness is. If, however, the declarant's statement is nonhearsay, or if it falls within an exception to the hearsay rule, then it is admissible
even if it is incriminating.).
Avilez v. State, 50 So.3d 1189 (Fla. 4th DCA 2010)(A computer generated report
of electronic-key card swipes for a door lock was not hearsay)
2.
Offered to prove truth of matter asserted.
Keen v. State, 775 So.2d 263 (Fla. 2000)(The state's offer of this evidence to
show a "sequence of events" did not avoid a hearsay objection. "[T]here is no
relevancy for such testimony to prove or establish such a nonissue. When the
only possible relevance out-of-court statement is directed to the truth of the
matters stated by a declarant, the subject matter is classic hearsay even though the
proponent of such evidence seeks to clothe such hearsay under a nonhearsay
label.").
Foster v. State, 778 So.2d 906 (Fla. 2000)(The non-hearsay "purpose for which
that statement is offered must relate to a material issue in the case and its probative
value must not be substantially outweighed by its prejudicial effect.").
Farinacci v. State, 29 So.3d 1212 (Fla. 4th DCA 2010)(In prosecution for lewd
and lascivious molestation, detective demonstration of the manner in which the
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victim said the defendant touched him was hearsay even though the detective did
not recite any specific statement made by defendant. “[T]here is no mime
exception to the hearsay rule. When the testimony of the witness at trial is founded
on a communication with another person, the result of which is to connect the
testifying officer to the defendant later charged with the crime, that connection is
manifestly the result of inadmissible hearsay. That is the identical basis for the
officer's testimony in this case. Postell describes this inadmissible connection as
`egregious hearsay’ and holds that `defendant's right of confrontation is defeated,
notwithstanding that the actual statements made by the non-testifying witness are
not repeated.’”).
B.
Statement of Identification
Puryear v. State, 810 So.2d 901 (Fla. 2002)(Victim's statements to detective and boyfriend
which described her assailant were not admissible under section 90.801(2)(c). A
"description is not an identification.").
Ibar v. State, 938 So.2d 451 (Fla. 2006)(Officer's testimony that individuals identified
defendant in a photograph taken from a surveillance tape was inadmissible under section
90.801(2)(c). The individuals making the identification were not victims or witnesses to
the crime and the decision apparently limits admissibility to statements of identification
made by those classes of declarants).
C.
Admissions
Perera v. State, 873 So.2d 389, 391-92 (Fla. 3d DCA 2004)(Defendant's statement that "he
was sorry, that he had been abused by his uncle" was admissible as an admission. "Perera's
apology...[is a statement] from which guilt may be inferred.").
State v. Billie, 881 So.2d 637, 639 (Fla. 3d DCA 2004)(Defendant's testimony during
prior trial is admissible in a retrial following the reversal of conviction under section
90.803(18).).
Garland v. State, 834 So.2d 265 (Fla. 4th DCA 2002) (In murder prosecution, report
prepared by FDLE agent stating that gunshot residue found in swabs taken from defendant
was not "forensically significant" was admissible against state under 90.803 (18)(d).
"Before admitting this type of evidence, however, a trial court must first determine that
there is ‘sufficient independent indicia of reliability' to justify admitting it." Opinion did
not indicate the factors that could be considered in making this determination.).
1.
Adoptive Admissions
Globe v. State, 877 So.2d 663, 72-73 (Fla. 2004)(Defendant's acquiescence to the
codefendant's statements made during joint confession was admissible as adoptive
admissions. The factors which should be considered " include the following: 1. The
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statement must have been heard by the party claimed to have acquiesced. 2. The
statement must have been understood by [the defendant]. 3. The subject matter of the
statement is within the knowledge of the [defendant]. 4. There were no physical or
emotional impediments to the person responding. 5. The personal make-up of the speaker
or his relationship to the party or event are not such as to make it unreasonable to expect a
denial. 6. The statement itself must be such as would, if untrue, call for a denial under the
circumstances." The decision also held that “admissions by acquiescence or silence do not
implicate the Confrontation Clause.").
2.
Corpus Delicti
A.
State v. Colorado, 890 So.2d 468 (Fla. 2d DCA 2005)(In DUI manslaughter
prosecution arising out of a one car accident, error to admit the statement of the
defendant that he was the driver where there was no physical or circumstantial
evidence which placed the defendant behind the wheel and did not establish the
corpus delicti.).
J.A.S. v. State, 920 So.2d 759 (Fla. 2d DCA 2006)(Error to admit statement of
juvenile when the only proof of the corpus delicti was father's inadmissible
hearsay.)
B.
Section 92.565
In sexual abuse prosecutions, a memorialized confession is admissible without showing
the corpus delicti if the court finds that the confession is trustworthy and that the state is
unable to show the existence of each element of the crime.
Tanzi v. State, 964 So.2d 106 (Fla. 2007)(In sexual battery prosecution, no error to admit
statement of defendant without following requirements of section 92.565 where state
established the corpus delicti.).
Hobbs v. State, 999 So.2d 1025 (Fla. 2008)(Court can consider victim’s recantation of
earlier statement in determining whether state is unable to show the elements of a crime
for purposes of 92.565. Resolving conflict between the Districts.).
Bradley v. State, 918 So. 2d 337, 341 (Fla. 1st DCA 2006) (92.565 applies to any victim
under the age of 12 regardless of whether the child is expressive or articulate.).
Hernandez v. State, 946 So.2d 1270 (Fla. 2d DCA 2007)(Trial court’s repetition of the
boilerplate statutory language was not a sufficient case specific finding that the statement
was trustworthy under section 92.565 when the trial court did not specify what it had
heard at the hearing to conclude the statements were trustworthy. Trial court cannot
consider the contents of the statement itself to determine whether there is corroborating
evidence of trustworthiness.).
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Gieger v. State, 907 So.2d 668 (Fla. 2d DCA 2005)(Error to admit statement of defendant
under section 92.565 when the only evidence to corroborate the trustworthiness of the
statement was that the defendant had the opportunity to commit the crime and other
hearsay statements made by the defendant to others. "[T]here must be some evidence that
tends to establish the type of harm for which the defendant is being criminally charged.").
D. Spontaneous Statement
Depravine v. State, 995 So.2d 351 (Fla. 2008)(There is no requirement for an exciting or
startling event or condition for statements to be admitted under section 90.803(1).
E. Excited Utterance
Hayward v. State, 24 So.2d 17 (Fla.2009)(No error to admit statement of victim to officer a
few minutes after murder victim was shot under section 90.803(2). Opinion discusses
factors to determine admissibility.).
Hutchison v. State, 882 So.2d 943 (Fla. 2004)(Testimony concerning telephone
conversation between murder victim and friend on the evening of the murder that she had
had a "big fight" with defendant was not admissible as an excited utterance because the
record does not reflect whether there was an opportunity to engage in reflective thought. The
record only reflects the probably lapse of thirty minutes between the time of the fight and of
the call. "There is no evidence in the record to show what occurred between the fight... and
the phone call....Absent some evidence that Renee did not engage in reflective thought, the
statement to Pruitt cannot be admitted as an excited utterance.").
Beiname v. State, 45 So.3d 804 (Fla. 4th DCA 2010)(Officer’s testimony as to statement
made by victim was inadmissible under section 90.803(2) when the victim had an
opportunity for reflective thought between the event and the statement and there was no
proof from the prosecution that the declarant did not engage in reflective thought.)
F.
Statements for Purpose for Medical Diagnosis and Treatment
Harris v. State, 37 So3d 285 (Fla. 2d DCA 2010)(Patient’s testimony concerning
physician’s statement concerning reason for Xray was inadmissible under 90.803(4). The
exception “applies when a doctor, or perhaps a nurse or paramedic, explains what a victim
of a crime told them when seeking treatment. It does not apply to allow the victim to state
in court what the doctor explained to the victim about the reason or the necessity for
treatment.”).
Neeley v. State, 883 So.2d 861, 863-64 (Fla. 1st DCA 2004)(Statement in hospital record
that victim was shot by "arrested assailant" was inadmissible under section 90.803(4).
Statement that victim was shot is admissible under the exception.).
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Williams v. State, 865 So.2d 17, 19 (Fla. 3d DCA 2004)(Case coordinator's testimony
regarding statements of child to nurse-practioner that he had been abused were admissible
under 90.803(4) when case coordinator testified that her role was to insure that the child
knows why he is at the exam and "to obtain history so that the medical examiner can
diagnose or treat.");
Herrera v. State, 879 So.2d 38, 40 (Fla. 4th DCA 2004)(In sexual battery prosecution,
statements of victim to nurse practioner that she was forced to have sex were admissible
under section 90. 803(4) but statements that assault was done at gun-point, that her clothes
would be ripped off if she did not remove them, and that nude pictures were taken of her
were not admissible under section 90.803(4) because they were not relevant to medical
diagnosis or treatment.).
G.
State of Mind Exception.
Cotton v. State, 763 So.2d 437 (Fla. 4th DCA 2000)(en banc)(Defendant's post-arrest
statement to police denying knowledge of cocaine was not admissible under section
90.803(3).).
H.
Past Recollection Recorded
Hernandez v. State, 31 So.3d 873 (Fla.4th DCA 2010)(Error to admit contents of tapedconversation as past recollection recorded when witness was unable, or unwilling, to attest
to the accuracy of the conversation. “Section 90.803(5)…provides an exception to the
hearsay rule when a witness cannot recall matters of which he or she previously had
knowledge. If the proper foundation is laid, a tape-recorded statement may qualify as a
recorded recollection. To be admitted into evidence, the past recollection recorded must be
offered by the witness who is either devoid of a present recollection, or possessed of an
imperfect present recollection and desires to use a memorandum of a past recollection. “
The witness must be able to assert now that the record correctly represented his knowledge
and recollection at the time of making.”).
I.
Business Records
Yisreal v. State, 993 So.2d 952 (Fla. 2008)(Letter from Department of Corrections employee
setting forth the release date of prisoner was not a business record for purpose of 90.803(6). “To
secure admissibility under… [the business record] exception, the proponent must show that (1) the
record was made at or near the time of the event; (2) was made by or from information transmitted
by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business
activity; and (4) that it was a regular practice of that business to make such a record.”).
Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So. 2d 1369, 1373 (Fla. 1st DCA
1992) (“In order to lay a foundation for the admission of a business record, it is necessary to call a
witness who can show that each of the foundational requirements set out in the statute is present
…. It is not necessary to call the person who actually prepared the document. The records
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custodian or any qualified witness who has the necessary knowledge to testify as to how the record
was made can lay the necessary foundation …. If the offering party does not lay the necessary
foundation, the evidence is not admissible under section 90.803(6).”).
McKown v. State, 46 So.3d 174, 175 (Fla. 4th DCA 2010)(Victim’s bank statements were not
admissible under business record exception since foundation was not laid. “While the victim had
her bank statements with her in court, a predicate was not laid for their authenticity or reliability.
Section 90.803(6)(a), … requires that the records custodian or other qualified bank employee
testify to the necessary predicate before bank statements may be admitted into evidence. Without
laying that foundation, the evidence is inadmissible hearsay.”).
Armstrong v. State, 42 So.2d 315, 317 (Fla. 2d DCA 2010)(In prosecution for fraudulent use of a
credit card, reversible error to permit cardholder to testify at trial that she had downloaded her
account from bank’s website and that certain transactions were unauthorized. “[T}he State had not
produced a records custodian to testify to the authenticity of these records as required by section
90.803(6)(a), … nor had the State provided an affidavit to self-authenticate them as permitted by
section 90.902(11).”).
Thompson v. State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998) (Testimony concerning the
contents of a bill of lading which was never introduced into evidence was inadmissible hearsay.
Under the business record exception a record or report is admissible, section 90.803(6) “does not
authorize hearsay testimony concerning the contents of business records which have not been
admitted into evidence.”).
Jackson v. State, 877 So.2d 816 (Fla. 4th DCA 2004)(Bell South computer records of victim's
telephone to defendant's pager were admissible under section 90.603(6). Computer printouts of
computer generated business records "`are admissible if the custodian or other qualified witness is
available to testify to the manner of preparation, reliability and trustworthiness of the product.'
Data compiled and presented in printouts prepared for trial may be admissible under the business
record exception, even though the printouts themselves are not kept in the regular course of
business. The fact that the information was printed out at the request of a party to the lawsuit `does
not deprive the printout of its business record character.'").
Baber v. State, 775 So.2d 258 (Fla. 2001)(A hospital record of a blood alcohol test made for
medical purposes which is maintained by the hospital as a business record is admissible under
section 90.803(6) without the testimony of the technician who conducted the test.).
Nimmons v. State, 814 So.2d 1153 (Fla.2d DCA 2002) (Laboratory report containing results of
drug tests were admissible despite entry on report: "Specimen analysis was preformed without
chain of custody handling. These results should be used for medical purposes only and Not for
any legal or employment purposes.").
Fencher v. State, 931 So.2d 184 (Fla. 5th DCA 2006)(No abuse of discretion in admitting a rape kit
as a business record without the testimony of the nurse who took the sample from the victim's
vaginal area; another witness laid the foundation for the business record exception.).
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King v . Auto Supply, 917 So.2d 1015 (Fla. 1st DCA 2006)(Documents in investigative agency's
files were admissible under section 90.803(6) even though the person who observed the matter
recorded did not testify because they were employees of the business who had personal
knowledge of the matters recorded.)
McKown v. State, 46 So.3d 174, 175 (Fla. 4th DCA2010)(“The summary compiled from …
victim’s bank statements … was [not admissible because it was] not authenticated by the party
who prepared it. In Johnson v. State, 856 So.2d 1085 (Fla. 5th DCA 2003), the admission into
evidence of a compilation of checks written on a victim's bank account was reversed because `[n]o
evidence was adduced identifying who had made the compilation, nor was any further predicate
shown that would render it admissible as a summary pursuant to section 90.956,..’”).
1.
Personal Knowledge of Employee
Reichenberg v. Davis, 846 So.2d 1233 (Fla. 5th DCA 2003)(Reports of
investigators for Child Protection Team and Department of Children and Families
which contained witness interviews were inadmissible under section 90.803(6)
because "they were not based on the personal knowledge of an agent of an agent of
the ‘business.').
2.
Opinions and Diagnoses
Shorter v. State, 98 So.3d 685, 692 (Fla.4th DCA 2012)( Decision expresses “a very
significant section 90.403 concern about the admissibility of a DNA forensic report
if the expert preparing the report does not testify.” However, the issue was not
preserved for appeal.).
Bradley v. Brotman, 836 So.2d 1129 (Fla. 3rd DCA 2002) (Suggesting that it was
error to admit portion of medical record in which non-testifying physician opined
that a dog bite did not cause the alopecia. "This prejudice or confusion [under
section 90.403] is more likely to occur in a case where the expert does not testify at
trial and is not subject to cross-examination.").
3.
Expert Witness Reports
McElroy v. Perry, 753 So.2d 121 (Fla. 2d DCA 2000)(Report of Independent
Medical Examiner was prepared for the purpose of litigation and lacked the
necessary trustworthiness to be admissible under section 90.803(6).).
J.
Public Record Exception, Section 90.803(8).
Yisreal v. State, 993 So.2d 952 (Fla. 2008)(Letter from Department of Corrections
employee setting forth the release date of prisoner was not a public record for purpose of
90.803(8). Department of Corrections Crime and Time Report was “activities based” public
7
record admissible under section 90.803(8), if the record was properly authenticated, which
it was with an accompanying letter from DOC employee under seal.).
Trepal v. State, 846 So.2d 405 (Fla. 2003) (Report of Office of the Inspector General of the
United States Department of Justice relating to the FBI crime laboratory was inadmissible
hearsay.).
Burgess v. State, 831 So.2d 137, 140 (Fla 2002) ("[T]he information contained in police
reports is ordinarily considered hearsay and inadmissible in an adversary criminal
proceeding. Nor does the information contained in the report in question fall under any
recognized exception to the hearsay rule. A police report or criminal arrest affidavit is not
admissible into evidence as a public record exception to the hearsay rule because that
exception excludes ‘in criminal matters observed by a police officer or other law
enforcement personnel.' ").
Reichenberg v. Davis, 846 So.2d 1233 (Fla. 5th DCA 2003)(Reports of investigators for
Child Protection Team and Department of Children and Families which contained witness
interviews were inadmissible under section 90.803(8) because "they were not based on the
personal knowledge of an agent of an agent of the ‘business.').
K.
Child Abuse Victim Exception. Section 90.803(23)
State v. Contreras, 979 So.2d 896 (Fla. 2008)(Child who made statement when age11 but
was thirteen at the time of trial can have statement admitted under 90.803(23). “The only
age requirement is that the statement being admitted as hearsay must have been made by a
victim eleven years or less in age.”).
N.C. v. State, 947 So.2d 1201 (Fla. 1st DCA 2007)(State’s filing of notice six days prior to
hearing did not preclude admission of statement under section 90.803(23) when defense
conceded it knew of the statement made by the child and could not explain how it was
prejudiced by the untimely notice.).
Peterson v. State, 810 So.2d 1095 (Fla. 5th DCA 2002) (Statement was admissible under
section 90.803(23) where child was in court room, began weeping when questioned on the
witness stand and refused to answer questions about the alleged sexual act. The court and
counsel urged child to testify but she refused. No error in trial court's finding that the child
refused to testify and thus was unavailable. "Peterson argues this was insufficient because
the judge had not ordered the victim to testify... However, it appears to us that under these
circumstances (a weeping child on the stand) that a court order would have served no
purpose. Further, the judge's prior efforts and urgings of the child to testify while she was
on the witness stand was sufficient to satisfy the statute.").
Mikler v. State, 829 So.2d 932 (Fla. 4th DCA 2002) (When victim was not asked on direct
or cross-examination about the sexual act involved in one count of indictment, videotape
interview of victim in which she stated that the sexual act occurred was admissible under
8
90.803(23) and was sufficient to support a finding of guilt. Because the statement admitted
under 90.803(23) was "surrounded by circumstantial guarantees of reliability". When the
child testifies at trial and is subject to cross-examination, "other corroborative evidence of
abuse" is not required under 90.803(23).).
Ghelichkhani v. State, 765 So.2d 185 (Fla. 4th DCA 2000) (Evidence was not sufficient to
corroborate when it established opportunity but did not "confirm that the charged offense
occurred.").
R.U. v. Department of Children & Families, 777 So.2d 1153, 1160 (Fla. 4th DCA 2001)( In
dependency hearing, error to admit testimony of counselor concerning statement if child
under section 90.803(23) when child did not testify and the only corroboration was the
counselor's testimony concerning other hearsay statements made by the child: "[T]he only
evidence being used to support N.M.'s hearsay statements is other hearsay statements made
by the same child to the same therapist who testified as to the original declarations. The
child declarant’s hearsay statements cannot be ‘other' corroborating evidence within the
same meaning of section 90.803(23)(a)2.b. We read the word 'other' in the rule as
denoting evidence derived from a source other than the child victim's own statements.").
1.
Sufficiency
Baugh v. State, 961 So.2d 198 (Fla. 2007) (Reaffirming that a statement of a child
admitted under section 90.803(23) is not sufficient to sustain a conviction when it
was the only evidence of guilt and is inconsistent with the child's in-court
testimony. There was sufficient to corroborate the facts in the victim’s repudiated
statement.).
L.
Declarations Against Penal Interest
Brooks v. State, 787 So.2d 765, 777 (Fla. 2001)(Statements by accomplice made to law
enforcement officer during interviews after murder was committed bit before arrest were
inadmissible under section 90.804(2)(c) even though they were on their face selfincriminatory: "[W}hen viewed in conjunction with his other statements and under the
circumstances in which they were made, it is obvious they were predominantly self-serving
in attempting to shift the blame, and thus lacked the necessary “guarantees of
trustworthiness.'").
Machado v. State, 787 So.2d 112, 113-14 (Fla. 4th DCA 2001)(In murder prosecution,
testimony that co-defendant made statements at a funeral and at co-defendant's home
describing how murder occurred were admissible under section 90.804(2)(c). The
"statements were made out of the presence of officers and in a personal setting. The record
further shows that he made the statements in order to describe how the witness's father died
and to gloat about evading police arrest. Because Olivera voluntarily made the statements
to his friend's son...without any fear of capture, without intending to shift blame, and while
in a personal setting, we hold that the trial court properly admitted his statements.).
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M.
Dying Declarations
White v. State, 17 So.3d 822 (Fla. 5th DCA 2009)(Although dying declarations are not
subject to Crawford, victim’s dying declaration to bystander was not testimonial even
though the bystander wrote down the names of victim’s assailants.).
N.
Forfeiture. Section 90.804(2)(f)
Mortimer v. State, 100 So.3d 99 (Fla. 4th DCA 2012)(applicable to all trials occurring
after April, 2012).
O.
Attacking Credibility of Hearsay Declarant
Fitzpatrick v. State, 900 So.2d 495 (Fla. 2005)(When hearsay statement of victim that
Steve was her assailant was admitted under section 90.803(2), victim's out-of-court
statement that Steve was not her assailant was admissible under section 90.806(1) although
the victim was dead at the time of trial and was not afforded an opportunity to deny or
explain the statement.).
Huggins v. State, 889 So.2d 743 (Fla. 2005)(By defendant putting before the jury testimony
which by implication placed his out-of-court statement before the jury, defense counsel
opened the door to his impeachment with nine prior felony convictions. "[S]ection 90.806
permits the introduction of a defendant's felony convictions when the defendant elicits his
or her own exculpatory, hearsay statement through another witness at trial...Under section
90.806(1), a hearsay declarant is treated as a ‘witness' and his or her credibility may be
attacked in the same manner as any other witness's credibility.").
Kelly v. State, 857 So.2d 949 (Fla. 4th DCA 2003)(When defendant's cross-examination of
arresting officer elicited exculpatory statements made by defendant during interrogation, no
abuse of discretion to permit prosecution to introduce evidence of defendant's prior
convictions involving dishonesty under section 90.806.).
II.
A.
CONFRONTATION AND CRAWFORD V. WASHINGTON
The Decision -- 124 S.Ct.1354 (2004)
Introduction of wife/accomplice's taped statement to police when wife asserted privilege to
refuse to testify at trial as a declaration against penal interest violated defendant's
confrontation rights.
If declarant testifies at trial and is subject to cross-examination, the confrontation clause
places "no constraints at all on the use of his prior testimonial statements."
When the prosecution offers evidence of an out-of-court statement of a declarant who does
10
not testify at trial, but which is "testimonial hearsay," confrontation requires that:
B.
a.
The declarant is "unavailable," and
b.
There has been an opportunity for prior cross-examination.
The After-Math
1.
Declarant Testifies at Trial
State v. Miller, 918 So.2d 350 (Fla. 1st DCA 2005)(admission prior statement of
witness who testified by had no present memory did not violate Crawford.).
Somervell v. State, 883 So.2d 836, 838 (Fla. 5th DCA 2004)(No Sixth Amendment
violation when video-tape of 8 year old child abuse victim's statement in response
to police questioning was admitted. The victim testified at trial and was subject to
cross-examination.)
2.
Declarant Does Not Testify at Trial
Hearsay Statements which are Testimonial Hearsay.
a.
Crawford.
"We leave for another day any effort to spell out a comprehensive definition of
'testimonial.' Whatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations."
"We use the term "interrogation" in its colloquial, rather than any technical legal,
sense. Just as various definitions of "testimonial" exist, one can imagine various
definitions of "interrogation," and we need not select among them in this case.
Sylvia's recorded statement, knowingly given in response to structured police
questioning, qualifies under any conceivable definition."
"Most of the hearsay exceptions covered statements that by their nature were not
testimonial - for example, business records or statements in furtherance of a
conspiracy."
3. Davis v. Washington, 126 S.Ct. 2266 (2006)("Statements are nontestimonial when
made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such emergency, and the
primary purpose of the interrogation is to establish or prove past events relevant to
later criminal prosecution.").
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Michigan v. Bryant, 131 S.Ct. 1143 (2011) (The existence of an on-going
emergency is among the most important factors in determining the primary purpose
of the interrogation. In defining “on-going emergency”, the Court noted that
“Domestic violence cases like Davis and Hammon often have a narrower zone of
potential victims than cases involving threats to public safety. An assessment of
whether an emergency that threatens the police and public is ongoing cannot
narrowly focus on whether the threat solely to the first victim has been neutralized
because the threat to the first responders and public may continue. The Michigan
Supreme Court also did not appreciate that the duration and scope of an emergency
may depend in part on the type of weapon employed…An objective analysis of the
circumstances of an encounter and the statements and actions of the parties to it
provides the most accurate assessment of the “primary purpose of the
interrogation.” The circumstances in which an encounter occurs- e.g., at or near the
scene of the crime versus at a police station, during an ongoing emergency or
afterwards-are clearly matters of objective fact. The statements and actions of the
parties must also be objectively evaluated. That is, the relevant inquiry is not the
subjective or actual purpose of the individuals involved in a particular encounter,
but rather the purpose that reasonable participants would have had, as ascertained
from the individuals' statements and actions and the circumstances in which the
encounter occurred.”).
3.
Florida Decisions
a. Statements by Victims and Witnesses
State v. Lopez, 974 So.2d 240 (Fla. 2008)(Exited utterance made by victim of abduction to
police six to eight minutes after crime was reported was testimonial. “The circumstances
here indicate that there was no ongoing emergency at the time Officer Gaston questioned
Ruiz. Officer Gaston arrived at the scene of the crime six to eight minutes after the crime
had been reported. Lopez, At the time Officer Gaston approached him, Ruiz was standing
in a parking lot about twenty-five yards away from Lopez, separated from his alleged
abductor in much the same way the declarant in Hammon was separated from defendant
Hammon when the police arrived. . A short time later, Ruiz revealed that the gun that was
allegedly used in his abduction was under the front passenger seat of his car, presenting no
immediate danger at the time Officer Gaston arrived. Even though the questioning of Ruiz
was not as formal as it may have been in Hammon, it seems clear that the ‘primary purpose
of the interrogation [was] to establish or prove past events potentially relevant to later
criminal prosecution.’)
State v. Contreras, 979 So.2d 896 (Fla. 2008)(Videotaped interview with the coordinator of
Child Protection Team at domestic violence victim’s shelter when detective was in an
adjoining room and able to electronically suggest questions to interviewer was testimonial.
“’[t]his kind of interview by a CPT is indistinguishable from an ordinary police
12
interrogation.’ Moreover, the primary, if not the sole, purpose of the CPT interview was to
investigate whether the crime of child sexual abuse had occurred, and to establish facts
potentially relevant to a later criminal prosecution.”).
Williams v. State, 967 So.2d 735, n. 11 (Fla. 2007)(Victim’s statements in response to 911
operator’s questions were not testimonial because victim “was seeking emergency medical
assistance for her life threatening injuries.”).
Hernandez v. State, 946 So.2d 1270 (Fla. 2d DCA 2007)(Statements of child abuse victim
and parents to nurse who was a member of child protection team which were arguably
admissible under 90.803(4) were testimonial.)
Somervell v. State, 883 So.2d 836, 838 (Fla. 5th DCA 2004)(Autistic child's statements
to mother were not testimonial; child's statements during interview with police officer at
Child Advocacy Center were testimonial.
c.
Documents
Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) (Forensic laboratory analysts'
certificates of analysis of cocaine were affidavits within core class of testimonial
statements covered by Confrontation Clause.).
Williams v. Illinois, 132 S.Ct. 2221 (2012).
Smith v. State, 28 So. 3d 838, 854 (Fla. 2009) (Testimony of FBI team supervisor, a
forensic DNA examiner, who interpreted the data from the tests conducted by biologists,
formulated the conclusions and prepared the official report comported with Crawford.
Since the "results the supervisor obtained in this case were indubitably testimonial in
nature, she was present at trial and subject to cross-examination with regard to those
results.").
Johnson v. State, 982 So.2d 672 (Fla. 2008)(FDLE report indicating presence of illegal
substances was testimonial hearsay. The report was not admissible under Crawford when
the person who conducted the test did not testify and was not shown to be unavailable.).
Belvin v. State, 982 So.2d 672 (Fla. 2008)(Affidavit of breath test technician was
testimonial. Portions of affidavit of breath test technician that pertain to his procedures and
observations in administering the breath test constitute testimonial evidence.).
Compare Banmah v State, 87 So.3d 101, 103 (Fla. 3d DCA 2012)(In murder prosecution,
autopsy report relied on by substitute medical examiner was not testimonial because “they
are prepared pursuant to a statutory duty, and not solely for use in prosecution.”) with U.S.
Ignasiak, 667 F.3d 1217 (11th Cir. 2012)(autopsy report was testimonial hearsay).
13
3.
Definition of Unavailable
State v. Contreras, 979 So.2d 896 (Fla. 2008)( “A child witness can be ‘unavailable’
under Crawford due to mental or emotional harm that testifying can cause.”)
Essex v. State, 958 So.2d 431 (Fla. 4th DCA 2007)(A finding of unavailability
under section 90.804(2)(a) is sufficient for unavailability under Crawford.).
Johnson v. State, 982 So.2d 672 (Fla. 2008)(Lab technician was not unavailable
where it was not demonstrated that the state had made a good faith effort to obtain
presence of technician.)
4.
Definition of "Opportunity for Cross-Examination."
State v. Causey, 898 So.2d 1096 (Fla. 5th DCA 2005)("Crawford does not require
the defendant or his counsel to be present at the time the witness's statement is
made or to be given an opportunity to cross-examine the witness at that time...The
ruling in Crawford merely requires that a defendant have the opportunity at some
time prior to trial to cross-examine the witness.").
a.
Discovery Deposition Sufficient?
State v. Lopez, 974 So.2d 240 (Fla. 2008)(Even though the defendant had taken
the discovery deposition of an unavailable witness, the defendant did not have a
prior opportunity to cross-examine the witness which is required by Crawford.
“[D]iscovery depositions do not function as the equivalent of the crossexamination opportunity envisioned by Crawford.”).
Blanton v. State, 978 So.2d 149 (Fla. 2008)(“[T]he exercise of the right to take a
discovery deposition under rule 3.220 does not serve as the functional substitute
for in-court confrontation of the witness.”); State v. Contreras, 979 So.2d 896
(Fla. 2008)(same).
Blanton v. State, 978 So.2d 149 (Fla. 2008)(The defendant ‘s “failure to exercise
the right to perpetuate testimony under rule 3.190(j) [is not]… a waiver of his
right to confrontation…. [T]he mere existence of rule 3.190(j0 does not provide
defendants with a ‘prior opportunity’ for cross-examination,…”).
5.
Forfeiture
Giles v. California, 128 S.Ct. 2678 (2008)(An accused forfeits the right to
confrontation of a witness when 1. the wrongdoing by the accused, or on the
accused’s behalf; 2.with the motive or intent to make the witness unavailable to
testify trial of the accused 3. results in the actual unavailability of the witness at
trial.)
14
III.
I.
EXAMINING WITNESSES
Impeaching Own Witness
Ruff v. State, 31 So.3d 833 (Fla. 4th DCA 2010)(Error to call defendant’s ex-wife
solely to impeach her with a prior inconsistent statement. “In making the
determination as to whether the primary purpose is to introduce the prior inconsistent
statements, a court may consider several factors, including: `(1) whether the witness's
testimony surprised the calling party, (2) whether the witness's testimony
affirmatively harmed the calling party, and (3) whether the impeachment of the
witness was of de minimis substantive value.’
Explaining the `primary purpose’ analysis further, the Third District noted in
State v. Richards, 843 So.2d 962 (Fla. 3d DCA 2003), that the witness's other
testimony must be useful to prove a significant fact in the litigation…”).
Morton v. State, 689 So.2d 259 (Fla. 1997) (Improper to impeach witnesses called by
prosecution when the primary "purpose of introducing inadmissible hearsay evidence
. . . Generally, however, if a party knowingly calls a witness for the primary purpose
of introducing a prior statement which would otherwise be inadmissible,
impeachment should ordinarily be excluded. On the other hand, a party may always
impeach its witness if the witness gives affirmatively harmful testimony. In a case
where a witness gives both favorable and unfavorable testimony, the party calling the
witness should usually be permitted to impeach the witness with a prior inconsistent
statement . . . . [T]he statement should be truly inconsistent and caution should be
exercised in permitting impeachment of a witness who has given favorable testimony
but simply fails to recall every detail unless the witness appears to be fabricating.").
Dennis v. State, 817 So.2d 741 (Fla.2002) (No error in permitting state to impeach its
own witness when witness had "relevant testimony to give regarding his awareness of
Dennis's whereabouts on the night of the crime as well as the fact...[the victim, a
former girlfriend] had left Dennis and moved out of his apartment only a week prior
to the murders.").
A. Methods of Impeachment
1. Prior Inconsistent Statement
Pearce v. State, 880 So.2d 561 (Fla. 2004)(excellent discussion of foundation
requirements for prior inconsistent statements).
Brooks v. State, 918 So.2d 181 (Fla. 2005)(Error to permit prosecution to impeach
the testimony of witness by calling agent to testify to statement made by witness
during pre-trial interview after witness had previously responded to prosecution's
question that she did not remember making the statement. "Florida courts have held
that a witness' inability to recall making a prior statement is not synonymous with
providing trial testimony that is inconsistent with a prior statement." Decision
15
suggests that if there had been evidence that the lack of recollection was fabricated
the extrinsic evidence of the statement would have been appropriate.").
Morton v. State, 689 So.2d 259 (Fla. 1997) (If the witness does not remember
whether he made the prior statement, the statement is not admissible to refresh
memory. Section 90.613 does not contemplate that evidence which might otherwise
be admissible will be paraded in front of the jury in the course of refreshing the
witness's memory. Rather, the witness should be shown the statement and asked if it
refreshed the witness's recollection.).
McBean v. State, 688 So.2d 383, 385 (Fla. 4th DCA 1997) (Error to sustain an
objection to defense cross-examination concerning the discrepancies between her
initial statement to the police at the time of the event and her trial testimony. "[A]
witness may be impeached by a prior inconsistent statement, including an omission in
a previous out-of-court statement about which the witness testifies at trial, if it is
material and would naturally have been mentioned.... The testimony of Dunn was
material and was information one would expect Dunn to have reported to the police at
the outset.").
Melendez v. State, 747 So.2d 1011 (Fla. 2d DCA 1999)(When trial judge suppressed
evidence of defendant's statements on grounds that they were not made voluntarily,
error to rule that statements could be "used for impeachment purposes.").
2.
Bias
Roebuck v. State, 953 So.2d 40 (Fla. 1st DCA 2007)(In sexual abuse prosecution against
friend of victim, evidence that victim had falsely accused brother of physical abuse was
inadmissible to attack victim’s credibility. There was nothing in the false accusation
which would establish a motive to lie about the charged crime. Exclusion of the evidence
did not violate defendant’s due process right to a fair trial.)
Blue v. State, 8 So.3d 454 (Fla.1st DCA 2009)(Evidence that victim had made prior false
allegations against the defendant in the past was admissible to show the bias of the
witness.).
Rodriguez v. State, 753 So.2d 29 (Fla. 3d DCA 2000)(When the witness was shown to be
a biased witness, appropriate for opposing counsel to establish "his reasons for his dislike
or fear" of defendant, subject to the trial judge determining whether the probative value
of the testimony outweighed its prejudicial impact.).
Nelson v. State, 704 So.2d 752, 753 (Fla. 5th DCA 1998) ("[W]here a witness has filed a
civil suit against the defendant or a third party (arising out of the criminal incident),
inquiry into this is relevant to the witness' motivation in testifying at the criminal trial.
Likewise, questioning a witness/victim about a civil suit brought by the defendant against
the witness/victim prior to being charged with the crime is proper impeachment.”).
16
Livingston v. State, 678 So.2d 895, 897-98 (Fla. 4th DCA 1997) (Crossexamination of a key prosecution witness concerning a plea bargain for a
favorable result to a felony charge which was pending when he first gave a
statement to police in this case should have been permitted to show the
"connection, if any, between the disposition in the criminal case and his
statement and testimony in this case.").
Dessaure v. State, 891 So.2d 455, 470 (Fla. 2004)(In murder prosecution, no abuse of
discretion to permit state to impeach two defense witnesses by cross-examining them a
bout their mandatory life sentences for unrelated crimes which were the result of
prosecutions by the office of the prosecutor handling defendant's case. "On appeal, the
State argues that...[the witnesses] were biased because they had been prosecuted by
coworkers in the prosecutor's office. Given the clear potential for bias against the State,
...[the witnesses] clearly had a motive to commit perjury at trial. The State's questions as
to whether they were serving mandatory life sentences also were relevant to the fact the
[the witnesses] could not be sanctioned for committing perjury. Essentially, they could lie
with impunity. Because ... [the witnesses] had a potential motive to lie at trial,
the State's questions concerning t heir life sentences and immunity from
perjury sanction were relevant and admissible under section 608(2).").
3.
Drug and Alcohol Use
Green v. State, 688 So.2d 301, 305 (Fla. 1996) (For purposes of
impeachment as a prior bad act, "we find no distinction between prior drug or alcohol
use and is inadmissible" unless it relates to the time the witness observed the facts or
to the time of trial.).
Felton v. State, 949 So.2d 342 (Fla. 4th DCA 2007)(Error to prohibit defense from
cross examining sexual battery victim about whether she was on methadone at the
time of the incident when the defense proffer established that the victim was on
methadone when the crime occurred. Expert testimony concerning the effect of
methadone on the witness was not necessary since the witness used drugs at or about
the time of the incident about which the witness was testifying.).
4.
Prior Convictions
a. Generally
Trapp v. State, 57 So.3d 269, 272-73 (Fla. 4th DCA 2011)(Error for
prosecution to ask defendant during cross-examination whether he had
been convicted of perjury in an attempt to attack the defendant’s
credibility. Section 90.610 permits a “witness to be questioned regarding
prior convictions only as to the number of felonies but not as to whether
they involve crimes of dishonesty. A party [can]… not ask a witness
whether he or she had been convicted of felonies involving dishonesty or
17
false statement, because the legislature had permitted impeachment by
prior felonies, regardless of type. We said:
`The subsection makes no distinction as to categories of felonies, but
limits use of misdemeanors to the category of ones involving dishonesty
or false statement. We believe that allowing further inquiry into whether
the felony involved dishonesty or false statement would have the
impermissible and unintended effect of elevating certain felonies over
others. In essence, we would be approving a more extensive crossexamination of one who has been convicted of grand theft, a felony
involving dishonesty, than one convicted of murder, a felony not involving
dishonesty or false statement. We cannot read into the statute or the
subsection, as adopted by the supreme court, an intent to depart from the
long-standing practice of restricting inquiry into the nature of the offense.’
As the statute permits inquiry into the number of misdemeanors but
only those involving crimes of dishonesty or false statement, we also
clarified that the witness can be asked only two questions. First, “have you
ever been convicted of a felony?” Second, “have you ever been convicted
of a misdemeanor involving dishonesty or false statement?”);
Davis v. State, 937 So.2d 273 (Fla. 4th DCA 2006)(When questioning a
witness about a prior felony “specific guidelines must be followed. First,
the State may inquire if the witness has ever been convicted of a felony. If
the witness answers in the affirmative, the State may inquire into the
number of times the witness has been convicted of a felony and if the
witness has ever been convicted of a misdemeanor involving dishonesty or
false statement….The general rule is that ‘[i]f [the witness] denies the
conviction, the opposing party may produce the record of the conviction.
In either event, the inquiry must stop at that point. The matter may not be
pursued to the point of naming the crime.’ ”).
b. Adjudication Required
State v. McFadden, 772 So.2d 1209 (Fla. 2000)(Under section 90.610 an
adjudication of guilt or judgment of conviction by the trial court is
necessary for there to be a "conviction." When there is a guilty plea, but
adjudication is withheld, a conviction has not occurred. Similarly, if there
has been a guilt plea or a jury verdict of guilty but sentence has not been
imposed and an adjudication of guilt entered, there is no conviction
pursuant to section 90.610.).
c. Rehabilitation
Jackson v. State, 947 So.2d 480 (Fla.3d DCA 2006)(In murder
prosecution, error to prohibit defendant from testifying on direct
examination as to the nature and circumstances of his thirteen prior felony
convictions. “[T]he nature of the defendant's prior felony convictions,
18
which would have included the fact that the defendant had never used a
weapon, threatened, or harmed anyone during the commission of these
felonies, was relevant, and therefore, the trial court erred in precluding the
defendant's testimony.”).
Williams v. State, 730 So.2d 777, 779 (Fla. 3d DCA 1999) (In murder
prosecution, error to prohibit defendant who testified on direct
examination that he had been convicted of seven prior felonies from
telling the jury about the nature of the crimes - they were all non-violent
drug offenses. "It is clear that he wanted to avoid 'any adverse
implications,' by establishing that the crimes were 'minor' in nature.").
Rogers v. State, 964 So.2d 221 (Fla. 4th DCA 2007)(“[W]here a defendant
has …opened the door, the state is entitled to inquire further regarding the
conviction to attempt to dispel any misleading impression.” Proper to
allow state to cross-examine defendant by asking whether it was fair to say
that defendant had received a much lesser sentence by pleading guilty.
“Once Rogers attempted to use the prior convictions to establish that he
was not guilty of burglary , the state was permitted to test the credibility of
this approach by providing an alternative reason for the earlier guilty
pleas.”).
Ross v. State, 913 So.2d 1187 (Fla. 5th DCA 2007)(When defendant on
direct examination testified that he had prior felony convictions to which
he had plead guilty because he was guilty, error to elicit on crossexamination that defendant faced five years in prison on a possession of
cocaine charge and received only 18 months after his guilty plea, and that
the defendant had been charged with robbery and theft and that the state
had dropped the theft charge in exchange for his guilty plea to the robbery
charge. The defendant’s testimony did not open the door to excessive
cross-examination concerning the details of his prior convictions.).
d. Remoteness
Trowell v. State, 813 So.2d 1042 (Fla. 4th DCA 2002) (No abuse of
discretion in permitting convictions more than 10 years old to be used to
impeach. "Evidence of theft and shoplifting convictions in the early 1980s
with no subsequent convictions would tend to suggest that the witness no
longer has a propensity towards dishonesty, and thus the convictions
would have little or no bearing on his present character. Evidence of a
continuing pattern of theft convictions tend to suggest that the appellant's
character in this regard remains unchanged.").
e. Other
Jackson v. State, 25 So.3d 518, 526-27 (Fla. 2009)(Error to permit state to
19
impeach witness about the specific nature of prior conviction of witness
when state argued the nature of the conviction was relevant to show the
bias of the witness. “Generally speaking, … evidence of the specific nature
of the conviction would not establish bias, and allowing inquiry as to the
specific nature of the charge would circumvent the prohibitions of section
90.610. Further, evidence of bias is subject to the balancing test mandated
by section 90.403,… which requires a court to hold otherwise admissible
evidence inadmissible if its unfair prejudice to a party substantially
outweighs its probative value.
The proper scope of cross-examination into this witness's bias
included his belief that he had been wrongfully convicted based on the
testimony of an informant; that he had been prosecuted by the same state
attorney's office prosecuting Wooten; and that he was `walloped’ with a
twenty-five-year sentence. The fact that his conviction was for aggravated
manslaughter of a child did not establish bias in this case, and any
probative value would be outweighed by the danger of unfair prejudice,
particularly in light of the fact that the nature of the conviction was
exploited by the State by referring to Wallace as a `convicted child
killer.’”).
Stallworth v. State, 53 So.3d 1163 (Fla.1st DCA 2011)(Reversible error to
cross-examine defense witness about the nature of the crimes resulting in
conviction when the witness responded to the cross-examination that he
had been convicted numerous of times, and when asked if eight times
sounded right, the witness responded that it “’Could be right.’).
Knight v. State, 756 So.2d 1035 (Fla. 4th DCA 2000)(In DUI
manslaughter prosecution, testimony on direct examination that his license
was suspended at the time of the accident did not open the door to crossexamination concerning the nature of the offense by giving rise to the
suspension. The defendant did not answer untruthfully or attempt to
mislead the jury through his direct testimony.).
5.
Acts of Misconduct
Pantoja v. State, 59 So.3d 1092 (Fla. 2011)(Prior false allegation of abuse
by person other than defendant was a prior act not admissible to attack the
credibility of the witness. Resolving conflict and disapproving Jaggers v.
State, 536 So.2d 321 (Fla.. 2d DCA 1988).
Blue v. State, 8 So.3d 454(Fla. 1st DCA 2009) (Prior false allegations by
victim against the defendant were admissible to show bias).
Eaglin v. State, 19 So.3d 935 (Fla. 2009)(No abuse of discretion in
prohibiting defense counsel from impeaching fellow inmate Jesse Baker
20
with a disciplinary report filed against him for lying to a corrections
officer.).
State v. Hammer, 942 So.2d 433 (Fla. 4th DCA 2006)(“We conclude that
the trial court did not abuse its discretion in granting the State's motion in
limine that prevented defense counsel from asking the victim about prior
drug addiction. The trial court's ruling left the defense free to question the
victim about her use of pain medication if the defense could show that it
was relevant to the night of the incident. However, the defense failed to
make a showing that the victim was under the influence of pain
medication on the night of the incident, during her trial testimony, or that
her prior addiction from several years prior to the incident would affect
her ability to observe, remember, or recount events. We find insufficient
Hammer's bare contention that the victim could not have been as
intoxicated as she apparently was after only three or four drinks. In the
absence of the required showing, any testimony regarding the victim's use
of pain medication was irrelevant and the trial judge's ruling was correct.”)
6.
Comment on Credibility
Joseph v. State, 868 So.2d 5, 8 (Fla. 4th DCA 2004)(No error in
permitting prosecutor to ask defendant during cross-examination whether
certain parts of detective's testimony was "not accurate." Opinion
distinguished lines of cases holding that one witness cannot express an
opinion about the credibility of another witness and that a witness may not
be asked whether another witness is lying. The line drawn by the court is a
fine one.).
Wilson v. State, 880 So.2d 1287 (Fla. 3d DCA 2004)(Error to crossexamine defendant with questions as to whether all of the prosecution
witnesses were conspiring against him. "We are not impressed by the
State's argument that we should draw a distinction between `lying' and
`conspiring.'").
7.
Door Opening
Robertson v. State, 829 So.2d 901 (Fla. 2002) (In murder prosecution
where prosecution's theory was that victim was shot during a domestic
dispute, error to permit prosecution to cross-examine concerning whether
the defendant had ever threatened anyone with a gin because it does not
"modify, supplement, contradict, rebut or make clearer" the defendant's
testimony that the shooting was accidental and that he was not very
familiar with the gun that fires the fatal shot. The defendant neither
misled the jury by offering evidence of his good character or inaccurately
testifying to a material fact. "The State cannot ask a series of
impermissible questions concerning prior acts of misconduct on cross21
examination, and then claim that the defendant opened the door by
answering the impermissible questions.").
VI. ADMISSIBILITY OF SCIENTIFIC AND EXPERT EVIDENCE
A. General
Lena v. State, 901 So.2d 227 (Fla. 3d DCA 2005)(In sexual abuse
prosecution, error to permit person who conducted interview with
victim to be qualified and identified as "an expert in forensic
interviewing....The record does not demonstrate the existence of a
recognized field of expertise in forensic interviewing, such that a
person can be person can be qualified as an expert in it.").
B. Disclosure By Expert of Data Relied Upon in Forming Opinion
Cannot disclose on Direct Examination that Relied Upon
A particular treatise that Supports Opinion. Liberatore v. Kaufman,
835 So.2d 404 (Fla. 4th DCA 2003).
Consulted with Other Experts in the Same Field. Schwartz v. State,
695 So.2d 452 (Fla. 4th DCA 1997).
Consultations with experts who have no First Hand Knowledge of
the Case. Linn v. Fossum, 946 So.2d 1032 (Fla. 2006).
Potts v, State, 57 So.3d 292 (Fla. 4th DCA 2011)(Error for
fingerprint examiner to testify that his identification was verified
by another examiner in a different department since the credibility
of the expert was improperly bolstered.)
C. Frye - Scientific Evidence
Spann v. State, 857 So.2d 845, 852 (Fla. 2003)("Florida does not
follow Daubert. Florida courts follow the test set out in Frye....
'This test requires that the scientific principles undergirding this
evidence be found by the trial court to be generally accepted by
the relevant members of its particular field.'" ).
1.
General Acceptance.
"We have recently defined 'general acceptance' to mean
acceptance by a clear majority of the members of the relevant
scientific community, with consideration by the trial court of both
quality and quantity of those opinions." Hadden v. State, 690 So.2d
22
573 (Fla. 1997).
Ramirez v. State, 810 So.2d 836 (Fla. 2001)(Ramirez III)( Expert's
testimony that knife mark in victim's body was made by
"Ramirez's knife... to the exclusion of all others" was not
admissible under Frye even though 5 other experts testified to the
general acceptance of the expert's methodology. The single defense
expert testified that the expert's method had never been tested."
The expert's testimony "standing alone is insufficient to establish
admissibility under Frye in light of the fact that Hart's testing
procedure possesses none of the hallmarks of acceptability that
apply in the relevant scientific community to this type of evidence.
This is particularly true in light of the extraordinarily precise
claims of identification that Hart makes under his testing
procedure... First, the record does not show that Hart's
methodology - and particularly his claim of infallibility - has ever
been formally tested or otherwise verified....Second, the record
does not show that Hart's test has even been subjected to a
meaningful peer review or publication as a prerequisite to
scientific acceptance....Fourth, the record does not show the error
rate for Hart's method has ever been qualified... Fifth, the record
does not show that this method is governed by objective scientific
standards.").
DNA Population Frequency.
Casias v. State, 96 So.3d 611(Fla.2d DCA 2011)(Error to permit
FDLE analysis to testify to significance of DNA match where there
was no testimony that the method of analysis or that it was
generally accepted in the scientific community.)
Allen v. State, 62 So.3d 1199, 1201-02 (Fla. 1st DCA 2011)(Error
to admit testimony regarding statistical DNA match when there
was no foundation regarding the statistical methodology used to
establish the DNA population frequency.).
2.
Inapplicable to Opinions Not Based on “New" or "Novel"
Methodology.
Spann v. State, 857 So.2d 845 (Fla. 2003)("Courts will only utilize
the Frye test in cases of new or novel scientific evidence....In the
vast majority of cases, no Frye inquiry will be required because no
innovative scientific theories will be at issue. Forensic handwriting
identification is not a new or novel science.").
State v. Fullwood, 22 So.3d 655 (Fla. 3d DCA 2010)(A Penile
23
plethysmograph test is not new or novel).
3.
Pure Opinion.
The Frye standard "is not applicable to an expert's pure opinion
testimony which is based solely on the expert's training and
experience. While an expert's pure opinion testimony comes
cloaked with the expert's credibility, the jury can evaluate this
testimony in the same way that it evaluates other opinion or factual
testimony." Hadden v. State, 690 So.2d 573 (Fla. 1997).
Marsh v. Valyou, 977 So.2d 543 (Fla. 2007)(Expert testimony that
trauma caused fibromyalgia was “pure opinion” not subject to
Frye.)(three justices dissent and would find it was not pure
opinion).
Torres v. State, 999 So.2d 1077 (Fla. 4th DCA 2009)(Expert
testimony concerning on the common characteristics of behavior
exhibited by child molestation victims and a concept the expert
called “compliant child victim” was pure opinion. The expert
defined a compliant child victim as one “who cooperate[s] in or ...
consent[s] to their sexual victimization,” and explained that they
are frequently adolescent boys. He described why compliant child
victims may not disclose the behavior at first and may later
disclose the facts surrounding the incident in a piecemeal fashion.
“Although the expert in this case gave a title to the syndrome that
he described as compliant child victim, his testimony was also pure
opinion. He did not rely on scientific studies, syndrome evidence,
diagnostic criteria, or any other classic scientific test. He limited
the basis for his testimony to his own professional experience. He
did not render an opinion on whether the victim in this case was a
compliant child victim.”); Oliver v. State, 977 So.2d 673 (Fla. 5th
DCA 2008)(same).
4.
Application to opinion testimony beyond "hard science"
a.
Social science
Sexual Offender Profile evidence is not admissible.
Flanagan v. State, 625 So.2d 827 (Fla. 1993).
Battered woman syndrome has gained "general acceptance"
as a matter of law. Hickson v. State, 630 So.2d 172 (Fla.
1993).
Syndrome testimony in child abuse cases is inadmissible.
24
Hadden v. State, 690 So.2d 573 (Fla. 1997).
Harrison v. State, 33 So.3d 727 (Fla, 1st DCA
2010)(Expert testimony about formation of children’s
memories and accuracy of memory years after the event
meets Frye.).
b.
Forensic Science
Ramirez v. State, 810 So.2d 836 (Fla. 2001)(Ramirez
III)(Expert's procedure for identifying knife mark
identification evidence from microscopic examination was
not generally accepted by scientists active in the field.
"[I]n applying Frye general scientific recognition may not
be established without the testimony of impartial experts or
scientists. It is this independent and impartial proof of
general scientific acceptability that provides the necessary
Frye foundation.").
Handwriting
Spann v. State, 857 So.2d 845 (Fla. 2003)(Fingerprint
identification is not subject to being Frye tested because it
is not "new" or "novel.").
Polygraphs
State v. Tompkins, 891 So.2d 1151 (Fla. 4th DCA
2005)(Polygraph results of a test given witness victim
which were offered by the accused were inadmissible under
Frye. The proponent of polygraph could not establish
scientific reliability when the only two witnesses called
"were people who earn a living giving polygraph tests."
Even though a scientific test has been found not to meet
Frye by an appellate court it may be appropriate to
subsequent hold a Frye hearing because the test maygain
scientific recognition in the future.).
D.
Application of Methodology
Section 90.702
"[T]he [expert] opinion is admissible only if it can be applied to the
evidence at trial."
25
Castillo v. E.I.DuPont de Nemours & Co., 854 So.2d 1264 (Fla. 2003)(In
action alleging that fungicide cased child's birth defect, expert testimony
extrapolating from animal studies in "a new or novel way" met the Frye
test. "By considering the extrapolation of the data from the admittedly
acceptable experiments, the Third District went beyond the requirements
of Frye, which assesses only the validity of the underlying science. Frye
does not require the court to assess the application of the expert's raw data
in reaching his or her conclusion. We therefore conclude that the Third
District erroneously assessed the Castillo's expert testimony under Frye by
considering not just the underlying science, but the application of the data
generated from that science in reaching the expert's ultimate conclusion.").
United States Sugar Corp. v. Henson, 823 So.2d 104 (Fla. 2002)("[W]hen
the expert's opinion is based upon generally accepted scientific principles
and methodology, it is not necessary that the expert's deductions based
thereon and opinion also be generally accepted as well....We reaffirm our
dedication to the principle that once the Frye test is satisfied through proof
of general acceptance of the basis of an opinion, the expert's opinions are
to be evaluated by the finder of fact and are properly assessed as a matter
of weight, not admissibility.").
E.
Standard of Review
Rameriz v. State, 810 So.2d 836 (Fla. 2003)("A trial court's ruling on a
Frye issue is subject to de novo review, and the reviewing court must
consider the level of acceptance at the time of review, not the time of trial.
A Frye error is subject to a harmless error analysis.").
F.
Other
McWatters v. State, 36 So.3d 613 (Fla. 2010)(In prosecution for sexual
battery and murder, expert testimony based on circumstantial evidence
that a rape occurred and that the facts were consistent with a sexually
motivated crime was not inadmissible because it called for a legal
conclusion.)
Smith v. State, 28 So.3d 838 (Fla. 2009)(No abuse of discretion in
admitting medical examiners opinion that victim had been sexually
assaulted. “The testimony … assisted the jury in determining what
happened, not who was responsible for the acts perpetrated against the
victim.”)
Tumlin v. State, 29 So.3d 1093 (Fla. 2010)(Error to permit officer’s
testimony that he had told fellow officer that co-defendant would tell him
the truth about what occurred during the commission of the crime. Error
to elicit testimony from one witness about the credibility of another
26
witness, particularly when the person expressing the opinion is a police
officer.)
VII.
OTHER
A.
Similar Acts in Sexual Prosecutions
Section 90.404(2) (b)
"1.
In a criminal case in which the defendant is charged with a crime
involving child molestation, evidence of the defendant's
commission of other crimes, wrongs, or acts of child molestation
is admissible, and may be considered for its bearing on any matter
to which it is relevant.
2. For the purposes of this paragraph, the term "child molestation"
means conduct proscribed by s. 787.025(2)(c), s. 794.011,
excluding s. 794.011(10), s. 794.05, s. 796.03, s. 796.035, s.
796.045, s. 800.04, s. 827.071, s. 847.0135(5), s. 847.0145, or s.
985.701(1) when committed against a person 16 years of age or
younger.
(c) 1. In a criminal case in which the defendant is charged with a
sexual offense, evidence of the defendant's commission of other
crimes, wrongs, or acts involving a sexual offense is admissible
and may be considered for its bearing on any matter to which it is
relevant.
2. For the purposes of this paragraph, the term "sexual offense"
means conduct proscribed by s. 787.025(2)(c), s. 794.011,
excluding s. 794.011(10), s. 794.05, s. 796.03, s. 796.035, s.
796.045, s. 825.1025(2)(b), s. 827.071, s. 847.0135(5), s.
847.0145, or s. 985.701(1).
(d) 1. When the state in a criminal action intends to offer evidence
of other criminal offenses under paragraph (a), paragraph (b), or
paragraph (c), no fewer than 10 days before trial, the state shall
furnish to the defendant or to the defendant's counsel a written
statement of the acts or offenses it intends to offer, describing
them with the particularity required of an indictment or
information. No notice is required for evidence of offenses used
for impeachment or on rebuttal.
2. When the evidence is admitted, the court shall, if requested,
charge the jury on the limited purpose for which the evidence is
27
received and is to be considered. After the close of the evidence,
the jury shall be instructed on the limited purpose for which the
evidence was received and that the defendant cannot be convicted
for a charge not included in the indictment or information.
(3) Nothing in this section affects the admissibility of evidence
under s. 90.610.”
McLean v. State, 934 So.2d 1248 (Fla. 2006)(Due process is not
violated when evidence is admitted under section 90.404(2)(b)
when the evidence is subject to a section 90.403 balancing and is
not offered to prove identity.).
Leland v. State, 7 So.3d 616 (Fla. 2d DCA 2009)(Testimony
concerning prior act in which defendant touched the back, neck
and legs of child did not meet the definition of child molestation
because it did not constitute sexual battery or a lewd and
lascivious offense and was inadmissible under 90.404(2)(b)(1).).
Strohm v. State, 985 So.2d 640 (Fla. 4th DCA 2008)(In capital
sexual battery prosecution, error under McLean to admit evidence
of 17 year old rape. “The 1973 rape for which appellant was
convicted in 1974 was on a twelve-year-old who testified that she
did not know appellant. The capital sexual battery in this case was
on appellant's daughter and occurred between August 1990 and
May 1991 when the victim was eight years old. In addition, there
were substantial other dissimilarities in the crimes. In the 1973
rape the victim was vaginally penetrated while the crime in the
instant case consisted of another form of sexual abuse. The 1973
rape was remote in time to the capital sexual battery charge in this
case, seventeen years prior. The 1973 rape was a one-time
occurrence on a stranger to the appellant. In this case the sexual
battery was on appellant's daughter over a several month period.
In this case there was no evidence of “`the presence or lack of
intervening circumstances.’”).
Woodard v. State, 978 So.2d 217 (Fla. 1st DCA 2008)(In
prosecution for lewd and lascivious molestation, reversible error
to admit vague testimony under section 90.404(2)(b) that
defendant had committed a “sexual assault” thirteen years earlier
upon witness. The testimony did not satisfy the requirements of
McLean.).
Triplett v. State, 947 So.2d 702 (Fla. 5th DCA 2007)(“Even
though section 90.404(2)(b),,. allows evidence of other acts of
child molestation to be admitted for any matter to which it is
28
relevant, relevancy remains the threshold question to be
considered. Thus, the more dissimilar the prior acts, the less
relevant they are to the crime charged and the less likely they are
to be admissible. In addition, even relevant evidence is
inadmissible if its probative value is substantially outweighed by
the danger of unfair prejudice. In the case now before us the
similarity between the collateral act of molestation perpetrated by
Mr. Triplett with respect to another young woman and the
charged molestation was a critical consideration for the trial court
n conducting an appropriate weighing of the evidence required by
section 90.403.”.)
Cann v. State, 958 So.2d 545, 548 (Fla. 4th DCA 2007)(In sexual
battery on a person under 12, evidence that defendant grabbed the
breasts of victim’s aunt when she approximately victim’s age was
inadmissible under 90.404(2)(b) because it had no similarity to
the acts in the charged offense and none of the McLean factors
support its admission.).
Zerbe v. State, 944 So.2d 1189 (Fla. 4th DCA 2007)(Evidence of
collateral act was inadmissible under section 90.404(2)(b)1 where
there was not clear and convincing evidence that the defendant
committed the act.)
D. Privileges
1. Reasonable Expectation of Privacy
Mosley v. State, 46 So.23d510 (Fla. 2009)(Recorded collect call
between defendant and wife was not privileged. “[A]ny privilege
[was absent] because he did not have a `reasonable expectation of
privacy’ when he and his wife talked on the telephone. The call
began with a prerecorded warning that `this call is subject to
monitoring and recording.’ Besides this clear message, Mosley was
given a handbook which explicitly warned that telephone calls
made in jail would be monitored.”).
McWatters v. State, 36 So.3d613 (Fla. 2010)(No error in failure to
disqualify State Attorney’s Office when it overheard telephone
conversations between defendant and attorney placed by
defendant from jail. “The attorney-client privilege “attaches only
to confidential communications not intended to be disclosed to
third persons who are not furthering the rendition of legal
services. Whether a communication is confidential depends on
whether the person invoking the privilege knew or should have
29
known that the privileged conversation was being overheard.”
Before every call, McWatters was warned that his calls were
subject to monitoring and recording. This Court has held that an
inmate has no reasonable expectation of privacy in a telephone
communication from jail where the inmate is warned that all calls
are monitored or recorded. There was no reason for McWatters to
believe that his phone calls to defense counsel would be excluded
from this warning. Thus, McWatters waived his right to
confidentiality.”).
Monroe v. State, 14 So.3d 1205 (Fla. 4th DCA 2009)(When
minister warned defendant that he would not treat as confidential
anything incriminating told him by defendant, clergy privilege did
not attach to defendant’s confession because under 90.505 the
communication did not meet the requirement of “not intended for
further disclosure.”).
Lynch v. State, 2 So.3d 47, 64-64 (Fla. 2009)(Martial privilege
did not apply to letter to wife when husband intended that the
contents of the letter be disclosed to third persons).
Jackson v. State, 18 So.3d 1016 (Fla. 2009)(Defendant’s call to
grandmother from jail which was preceded by an announcement
the call was being monitored or recorded was not protected by
Fourth Amendment or wiretapping laws because the call was not
made with a reasonable expectation of privacy.).
2. Exceptions
Floyd v. State, 18 So.3d 432 (Fla. 2009)(“[T]here is no privilege
in a criminal proceeding in which one spouse is charged with a
crime committed against the person or property of the other
spouse. Floyd was charged with, among other things, aggravated
assault against his wife, Trelane. The spousal privilege was not
available as long as Floyd stood trial for aggravated assault.”).
30