I. TRIAL OBJECTIVES. of your hand. A trial attorney must be able to understand the Rules of Evidence and

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1 I. TRIAL OBJECTIVES Intrductin. T be successful in trial, yu shuld knw yur Rules like the back f yur hand. A trial attrney must be able t understand the Rules f Evidence and knw hw t use them. Failure t fully understand the Rules will place yur client at a disadvantage and it helps yur ppnent while aggravating the judge in yur case. The best way t learn the Rules is t read them, then apply what yu have learned. This utline discusses sme f the Evidence Rules, cases and trial bjectins that yu shuld familiarize yurself with befre starting trial. A. Rulings n Evidence. Flrida Statutes Sectin , DeLuca v. State, 384 S.2d 212 (Fla. 4 th DCA 1980), rev. den. 389 S.2d 1108 (Failure t bject at trial cntempraneusly with admissin f cntested evidence is waiver f right t appellate review f issue). B. Judicial Ntice. Flrida statutes Sectins , McDaniels v. State, 388 S.2d 259 (Fla. 5 th DCA 1980) (Judicial ntice may be taken f matters that are cmmnly knwn, but may nt be used t dispense with prf f essential facts that are nt judicially cgnizable); Carsn v. Gibsn, 595 S.2d 175 (Fla. 2 nd DCA 1992) (Stipulatin alne des nt prvide evidentiary basis fr judicial ntice f evidence nt therwise prperly befre the curt). C. Presumptins. Flrida Statutes Sectins , Insurance C. f State f Pa. v. Guzman s Estate, 421 S.2d 597 (Fla. 4 th DCA 1982) (Presumptins that affect the burden f prducing evidence facilitate determinatin f issues and negate the necessity f prf absent cntradictry evidence). 1

2 D. Relevant Evidence and Admissibility f Certain Types f Evidence. Flrida Statutes Sectins , Hward v. State, 616 S.2d 484 (Fla. 1 st DCA 1993) (Relevancy determinatins are within trial curt s discretin and absent clear abuse f discretin such rulings will nt be verturned). E. Privileges. Flrida Statutes Sectin , State v. Castellan, 460 S.2d 480 (Fla. 2d DCA 1984) (Privileges in Flrida are n lnger creatures f judicial decisin; rather, they are statutrily limited). F. Witnesses Wh May Testify; and Exclusin f Witnesses. Flrida Statutes Sectin , Baker v. State, 674 S.2d 199 (Fla. 4 th DCA 1996) (Cmpetency f witness t testify is determinatin left t sund discretin f trial curt, and absent abuse f discretin, trial curt s decisin will nt be disturbed). G. Expert Witnesses. Flrida Statutes Sectins , State v. DuPnt, 659 S.2d 405 (Fla. 2d DCA 1995)(Expert may base pinins n facts which are nt necessarily admissible evidence, but expert witness may nt be used as a cnduit t intrduce therwise inadmissible hearsay). H. Hearsay. Flrida Statutes Sectins , Peterka v. State, 640 S.2d 59 (Fla. 1994) (Hearsay rule prevents admissin f ut-f-curt statements t prve fact thrugh extrajudicial statements, but ut-f-curt statement may be admitted fr a purpse ther than prving truth f matter asserted if statement is relevant t prve a material fact and is nt utweighed by any prejudice). I. Authenticatin and Intrductin f Dcuments and Phtgraphs. Flrida Statutes Sectins , Mills v. Barker, 664 S.2d 1054 (Fla. 2d DCA 1995) (Authenticatin r indemnificatin f evidence is required as cnditin precedent t its 2

3 admissibility; evidence may be authenticated either by using extrinsic evidence r by shwing that it meets requirements fr self-authenticatin). J. Public Recrds. Flrida Statutes Sectin , Tuten v. Gazan, 18 Fla. 751 (Fla. 1882) (Certified cpies f public recrds and papers lawfully kept in the ffice f the Secretary f State are admissible withut evidence as t the whereabuts f the riginals). II. FLORIDA EVIDENTIARY TRIAL OBJECTIONS A. AMBIGUOUS. Cnfusing questin in that it is capable f being understd in mre than ne sense. Fla. Stat (1). B. ARGUMENTATIVE. (a) Cunsel s questin is really argument; r (b) excessive quibbling with witness. Fla. Stat (1). C. ASKED AND ANSWERED. Unfair t allw cunsel t emphasize evidence thrugh repetitin. Fla. Stat (1). D. ASSUMES A FACT NOT IN EVIDENCE. Fact nt testified t but cntained in the questin. Fla. Stat (2); (a). E. AUTHENTICATION LACKING. Prf must be ffered that the exhibit is in fact what it is claimed t be. Fla. Stat F. BEST EVIDENCE RULE. If rule applies, riginal dcument must be ffered r its absence accunted fr. If cntents f dcument are t be prved, rule usually applies. Fla. Stat G. BEYOND SCOPE (f direct, crss direct, etc.) Questin unrelated t preceding examinatin by ppsing cunsel. 3

4 H. COMPOUND. Mre than ne questin cntained in the questin by cunsel. Fla. Stat (1). I. CONCLUSION. Except fr an expert, witness must testify t facts within persnal knwledge. Fla. Stat ; J. CONFUSING AND UNINTELLIGIBLE. Unfamiliar wrds disjinted phrases r questins cnfuse facts r evidence. Fla. Stat (1). K. COUNSEL TESTIFYING. Cunsel is making a statement instead f asking a questin. Fla. Stat L. CUMULATIVE. Repeated presentatin f the same evidence by exhibits r by mre witnesses. Fla. Stat (1) M. FOUNDATION LACKING. N prper fundatin fr testimny r exhibit. Fla. Stat ; (1). N. IMPEACHMENT BY IMPROPER MEANS. Methds f impeachment are limited and specific. Fla. Stat O. IMPROPER CHARACTERIZATION. Cunsel s questin r witness s respnse has characterized a persn r cnduct with unwarranted argumentative, impertinent r cnclusinary language. Fla. Stat ; (1). P. IRRELEVANT. Wuld nt tend t prve r disprve a material fact. Mtin t strike may be apprpriate. Fla. Stat Q. LEADING. Frm f questin tends t suggest answer. Fla. Stat (3). R. MISQUOTING WITNESS. Cunsel s questin misstates prir testimny f witness. Fla. Stat (2). 4

5 S. NARRATIVE. Questin is brad r cvers such a large time perid wuld allw witness t ramble and preserve hearsay r irrelevant evidence. Fla. Stat (2); (1). T. OPINION. Lay pinin which beynd the scpe permitted by Fla. Stat ; persnal knwledge lacking f expert witness has nt been qualified such. Fla. Stat ; U. PREJUDICE OUTWEIGHED PROBATIVE VALUE. The prbative value f the evidence is far utweighed by the prejudicial effect f the evidence. Must apply t exhibits as well as testimny. Fla. Stat V. PRIVILEGED. Answer wuld vilate valid privilege (lawyer-client, husband-wife, clergyman, etc.) Fla. Stat W. SPECULATION AND CONJECTURE. Questin allws witness wh lacks persnal knwledge t guess. Fla. Stat , X. UNRESPONSIVE. Answer includes testimny nt called fr by the questin. Especially applicable t vluntary respnse by hstile witness. Fla. Stat (1); (2). Y. HEARSAY. The fllwing sectin Y 1-32 summarizes the relevant prtins f the NITA Flrida Evidence Cde With Objectins, 4 th Editin handbk, by Davenprt and Hirsch. 1. HEARSAY: GENERALLY Respnse (Rule ): 5

6 The statement is nt being ffered fr the truth f the matter asserted. Instead, it is ffered t shw the statement was made. The making f the statement in questin is relevant t shw: The effect n a persn wh heard the statement, r A prir incnsistent statement, r An perative legal fact r a verbal act, r The knwledge f the declarant. 2. HEARSAY: NON-HEARSAY PRIOR STATEMENTS Respnses (Rule (2)(a)-(c)): The statement is incnsistent with the testifying witness s trial testimny, and was given under ath at an earlier prceeding r at a depsitin, r The statement is cnsistent with the testifying witness s trial testimny, ffered t rebut an express r implied charge f recent fabricatin, r imprper influence r mtive, r The statement by the testifying witness is ne f identificatin f a persn based n perceptin. 3. HEARSAY WITHIN HEARSAY Respnse (Rule , 803, 804, 805): Bth statements are admissible because each either cmes within a hearsay exceptin r is nn-hearsay. 4. HEARSAY EXCEPTION: ABSENCE OF ENTRY IN BUSINESS RECORDS Respnse (Rule (6)-(7)): A business recrd exists, pursuant t Rule (6), and The matter nt recrded is f a kind fr which a recrd wuld regularly be made and preserved, and 6

7 The surce is trustwrthy. 5. HEARSAY EXCEPTION: ABSENCE OF PUBLIC RECORDS OR ENTRY Respnse (Rule (10)): A public agency r ffice regularly makes and preserves recrds f a particular kind f matter, and The dcument is self-certifying pursuant t Rule , and A diligent but unavailing search f such recrds failed t disclse a recrd, reprt, statement, data cmpilatin, r entry, that n such entry exists. 6. HEARSAY EXCEPTION: ADMISSIONS Respnse (Rule (18)): The statement was made by the party ppnent, r The statement was made by a persn and was adpted by the party ppnent as the party s wn, and thus, is a vicarius admissin f the party ppnent, r The statement was made by an agent authrized t speak n behalf f a party ppnent, and thus, is a vicarius admissin f the party ppnent, r The statement was made by an agent r servant f the party ppnent cncerning a matter within the scpe f the declarant s agency r emplyment, and was made during the existence f the declarant s agency r emplyment, and thus, is a vicarius admissin f a party ppnent, r The statement was made by a c-cnspiratr f the party ppnent during the curse f the cnspiracy and in furtherance f the cnspiracy, and thus, is a vicarius admissin f the party ppnent. 7. HEARSAY EXCEPTION: EXCITED UTTERANCE 7

8 Respnses (Rule (2)): The statement is admissible as an excited utterance pursuant t Rule (2). I have shwn thrugh the testimny f (insert name f witness) that the statement relates t a startling event r cnditin, and was made while the declarant was under the stress r excitement caused by the event r cnditin. 8. HEARSAY EXCEPTION: FAMILY RECORDS Respnses (Rule (13): This statement is admissible as a family recrd pursuant t Rule (13). I have shwn thrugh the testimny f (insert name f witness) that this is a statement f fact cncerning persnal r family histry, cntained in a family Bible, genealgy, r the like. 9. HEARSAY EXCEPTION: FORMER TESTIMONY Respnses (Rule (22): The statement is admissible as frmer testimny pursuant t Rule (2)(a). I have shwn thrugh the testimny f (insert name f witness) that: The declarant is unavailable pursuant t Rule (1), and the statement is testimny given at anther hearing f the same r different prceedinig, r in a depsitin in the curse f the same r a different prceeding, and The party against whm it is ffered had an pprtunity and similar mtive t develp the testimny by direct, crss r redirect examinatin. 8

9 10. HEARSAY EXCEPTION: JUDGMENT OF PREVIOUS CONVICTION Respnse (Rule ): This statement is evidence f a final judgment entered after a trial r upn a guilty plea adjudging a persn guilty f a crime punishable by either death r imprisnment fr mre than ne year r a crime invlving dishnesty r a false statement regardless f the punishment. 11. HEARSAY EXCEPTION: MARKET REPORTS AND COMMERCIAL PUBLICATIONS Respnse (Rule (17)): This statement is admissible as a market reprt r cmmercial publicatin pursuant t Rule (17). I have shwn the dcument is a market qutatin, tabulatin, list, directry, r ther published cmpilatin, which is generally used and relied upn by the public r persns in particular ccupatins. 12. HEARSAY EXCEPTION: MARRIAGE, BAPTISMAL, And SIMILAR CERTIFICATES Respnse (Rule (12): This statement is admissible as a marriage, baptismal, r similar certificate pursuant t Rule (12). I have shwn thrugh the testimny f (insert name f witness) that: This is a statement f fact cntained in a certificate which shws the maker perfrmed a marriage r ther similar ceremny, and Was made by a clergyman, public fficial, r ther persn authrized by law r the practices f a religius rganizatin t perfrm the act certified, and 9

10 Which purprts t be issued at the time f the act r within a reasnable time thereafter. 13. HEARSAY EXCEPTION: PUBLIC RECORDS and REPORTS Respnse (Rule (8)): The dcument is a recrd, reprt, statement, r data cmpilatin, f a public ffice r agency setting frth the activities f the ffice r agency, r The recrds (etc.) are f a public ffice r agency setting frth matters bserved pursuant t duty impsed by law as t which matters there was a duty t reprt, r The dcument is an affidavit cntaining the results f a test f the defendant s bld and/r breath t determine its alchl cntent. 14. HEARSAY EXCEPTION: RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY Respnse (Rule (14)): The statement is admissible as a recrd f a dcument affecting an interest in prperty pursuant t Rule (14). I have shwn thrugh the testimny f (insert name f witness) that this is a recrd f a public ffice, and an applicable statute authrizes the recrding f dcuments f that kind in such ffice. 15. HEARSAY EXCEPTION: RECORDED RECOLLECTION Respnse (Rule (5): This statement is admissible as recrded recllectin pursuant t Rule (5). I have shwn thrugh the testimny f (insert name f witness) that it is a memrandum f recrd cncerning a matter abut which a witness nce had knwledge, but nw has insufficient recllectin t enable him r her t testify fully and accurately, 10

11 and was made r adpted by the witness when the matter was fresh in the witness s memry s as t reflect that knwledge crrectly. 16. HEARSAY EXCEPTION: RECORDS OF REGULARLY CONDUCTED ACTIVITY (Business Recrds) Respnses (Rule (6): Memrandum, reprt, recrd r data cmpilatin, Recrding acts, events, cnditins, pinins, r diagnses, Made at r near the time the acts r events tk place, By r frm infrmatin transmitted by ne with persnal knwledge f the event r act, Where such recrd is kept in the curse f regularly cnducted business activities, and It was the regular practice f the business t make such a recrd. Fr cmputer-generated recrds, repeat the abve steps and add: The cmputer and the prgram used are generally accepted in the field, The cmputer was in gd wrking rder at relevant times, and The cmputer peratr pssessed the knwledge and training t crrectly perate the cmputer. 17. HEARSAY EXCEPTION: RECORDS OF RELIGIOUS ORGANIZATIONS Respnse (Rule (11)): This statement is admissible as a recrd f a religius rganizatin pursuant t Rule (11). I have shwn thrugh the testimny f (insert name f witness) that the statement is ne f persnal r family histry, and is cntained in a regularly kept recrd f a religius rganizatin. 11

12 18. HEARSAY EXCEPTION: RECORDS OF VITAL STATISTICS Respnse (Rule (9)): This ut-f-curt statement is admissible pursuant t Rule (9) as a recrd f a vital statistic in that it is a recrd regarding a vital statistic which recrds a reprt made t a public fficial required by law t keep such recrd. 19. HEARSAY EXCEPTION: REPUTATION AS TO CHARACTER Respnse (Rule (21)): This statement is relevant because it is admissible as reputatin as t character pursuant t Rule (21). I have shwn thrugh the testimny f (insert name f witness) that this is a statement f reputatin f a persn s character within the witness s cmmunity. 20. HEARSAY EXCEPTION: REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY Respnse (Rule (20)): This statement is admissible as a statement f reputatin cncerning bundaries r general histry pursuant t Rule (20). I have shwn thrugh the testimny f (insert name f witness) that: This statement is a statement f reputatin cncerning bundaries in a cmmunity, Arising befre the cntrversy, as t bundaries f, r custms affecting, lands in the cmmunity, r As t events f general histry imprtant t the cmmunity r state f natin in which lcated. 12

13 21. HEARSAY EXCEPTION: REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY Respnse (Rule (19)): The statement is admissible as a statement f reputatin cncerning persnal r family histry pursuant t Rule (19). I have shwn thrugh the testimny f (insert name f witness) that this is a statement f reputatin amng family members f ne s family, (r amng ne s assciates, r in the cmmunity) cncerning a persn s adptin, birth, marriage, divrce, death, legitimacy, relatinship by bld, adptin r marriage, ancestry, r ther similar fact f persnal r family histry. 22. HEARSAY EXCEPTION: REQUIREMENT OF UNAVAILABILITY FOR RULE HEARSAY EXCEPTIONS Respnse (Rule (1)-(2)): descriptin). The ut-f-curt statement meets (insert the apprpriate Rule (1) The declarant is unavailable because declarant: Is exempted frm testifying cncerning the subject f the statement by ruling frm the curt n the grund f privilege, r Persists in refusing t testify cncerning the subject f the statement despite a curt rder t d s, r Testifies t a lack f memry n the subject f the statement, r Is unavailable t testify at the hearing because f death r illness, r Is absent frm the hearing and I have been unable t prcure his r her attendance thrugh prcess r ther means. 13

14 23. HEARSAY EXCEPTION: SPONTANEOUS STATEMENT Respnse (Rule (1)): This statement is admissible as a spntaneus statement pursuant t Rule (1). I have shwn thrugh the testimny f (insert name f witness) that the statement describes r explains an event r cnditin, and was made while the declarant was perceiving the event r cnditin, r immediately thereafter. 24. HEARSAY EXCEPTION: STATEMENT AGAINST INTEREST Respnse (Rule (2)(c)): This statement is admissible as a statement against interest pursuant t Rule (2)(c). I have shwn thrugh the testimny f (insert name f witness) that the statement was made by a declarant wh is nw unavailable pursuant t Rule (1), and Was at the time f its making, s far cntrary t the declarant s pecuniary r prprietary interest, r S far tended t subject the declarant t criminal r civil liability, r T render invalid a claim by the declarant against anther, and That a reasnable persn in the declarant s psitin wuld nt have made this statement unless he r she believed it t be true, and (If the statement tends t expse the declarant t criminal liability and is ffered t exculpate the accused) crrbrating circumstances clearly indicate the trustwrthiness f the statement. 14

15 25. HEARSAY EXCEPTION: STATEMENT IN ANCIENT DOCUMENTS Respnse (Rule (16)): This statement is admissible as a statement cntained in an ancient dcument pursuant t Rule (16). I have shwn thrugh the testimny f (insert name f witness) that the statement is cntained in a dcument in existence twenty years r mre, the authenticity f which is established. 26. HEARSAY EXCEPTION: STATEMENT OF CHILD VICTIM Respnse (Rule (23)): This statement is admissible as a statement f a child victim under Rule (23). The child is 11 years ld r yunger and the statement describes child abuse r neglect. Ntice has been given t the defendant f at least ten (10) days and the curt has held a hearing utside the jury s presence n the admissibility f the statement. 27. HEARSAY EXCEPTION: STATEMENT IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY Respnse (Rule (15)): This statement is admissible pursuant t Rule (15) as a statement in a dcument affecting an interest in prperty. I have shwn thrugh the testimny f (insert name f witness) that: The statement is cntained in a dcument purprting t establish r affect an interest in prperty. That the matter stated was relevant t the purpse f the dcument, and That dealings with the prperty since the dcument was made have nt been incnsistent with the truth f the statement r the purpse f the dcument. 15

16 28. HEARSAY EXCEPTION: STATEMENT OF PERSONAL OR FAMILY HISTORY Respnse (Rule (2)(d)): The statement is admissible as a statement f persnal r family histry pursuant t Rule (2)(d). I have shwn thrugh the testimny f (insert name f witness) that: The declarant is nw unavailable pursuant t Rule (1), and the statement cncerns the declarant s wn birth, adptin, marriage, divrce, legitimacy, relatinship by bld, adptin, r marriage, ancestry r ther similar fact f persnal r family histry, even thugh the declarant had n means f acquiring persnal knwledge f the matter stated. 29. HEARSAY EXCEPTION: STATEMENT FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT Respnse (Rule (4)): This statement is admissible as a statement fr purpses f medical diagnsis r treatment pursuant t Rule (4). I have shwn thrugh the testimny f (insert name f witness) that the statement was made: Fr purpses f medical diagnsis r treatment, and was made fr describing medical histry, r Fr describing past r present symptms, pain, r sensatins, r Fr describing the inceptin r general character f the cause r external surce theref and was reasnably pertinent t diagnsis r treatment. 30. HEARSAY EXCEPTION: STATEMENT UNDER BELIEF OF IMPENDING DEATH 16

17 Respnse (Rule (2)(b)): The statement is ne made under belief f impending death pursuant t Rule (2)(b). I have shwn thrugh the testimny f (insert name f witness) that the statement: Was made by a declarant wh is nw unavailable pursuant t Rule (1), and Is ffered in a criminal r civil actin r prceeding, and Was made by a declarant while believing that his r her death was imminent, and Cncerns the cause r circumstances f what the declarant believed t be his r her impending death. 31. HEARSAY EXCEPTION: THEN-EXISTING MENTAL OR EMOTIONAL CONDITION Respnse (Rule (3)): This statement is admissible as a statement f a then-existing mental r emtinal cnditin pursuant t Rule (3). I have shwn thrugh the testimny f (insert name f witness) that the statement: Is f the declarant s then-existing state f mind, emtins, r sensatin, and It is ffered t prve the declarant s state f mind r emtin which is at issue, r It is ffered t prve r explain acts f subsequent cnduct f the declarant, and 17

18 It des nt include a statement f after-the-fact memry r belief ffered t prve the fact remembered r believed, r Even thugh it is a statement f memry r belief, it relates t the executin, revcatin, identificatin, r terms f declarant s will. 32. HEARSAY EXCEPTION: THEN-EXISTING PHYSICAL CONDITION Respnse (Rule (3)): This statement is admissible as a statement f a then-existing physical cnditin pursuant t Rule (3). I have shwn thrugh the testimny f (insert name f witness) that the statement: Is f the declarant s then-existing physical cnditin, and It is ffered t prve the declarant s physical sensatin which his at issue, r It is ffered t prve r explain acts f subsequent cnduct f the declarant, and It des nt include a statement f after-the-fact memry r belief ffered t prve the fact remembered r believed, r Even thugh it is a statement f memry r belief, it relates t the executin, revcatin, identificatin, r terms f declarant s will. III. IMPEACHMENT OF A WITNESS One f the mst effective ways f impeaching a witness at trial is thrugh the use f depsitins and incnsistent statements. Unfrtunately, many trial attrneys d nt knw hw t prperly impeach using depsitins and incnsistent statements. This results in embarrassing situatins fr thse attrneys. This sectin describes the prper 18

19 methd t impeach witnesses n the stand by the use f depsitins and incnsistent statements. A. Depsitins When a witness makes a statement in trial that is incnsistent with his r her depsitin testimny, yu shuld first highlight the questin that was answered differently at trial. Make sure that the trial testimny being impeached is a direct incnsistent statement with the depsitins given befre trial. Yu shuld then ask the fllwing questins: 1. D yu remember having had yur depsitin taken n (state the date)? 2. D yu remember that a curt reprter was present at yur depsitin? 3. D yu remember having been swrn in t tell the truth? 4. Did yu tell the truth n that date? 5. (if applicable) D yu remember having yur attrney present at yur depsitin? After yu have set the fundatin fr the impeachment, then yu shuld ask the witness the fllwing questin: D yu remember having been asked the fllwing questin and yur giving the fllwing answer. At this pint, yu shuld read the questin previusly asked and the answer given by the witness in the depsitin. B. Use Of Incnsistent Statements In Dcuments A similar methd may be used t impeach a persn using an incnsistent statement in a dcument such as an affidavit, swrn statement, letter, etc. The trial 19

20 attrney shuld first highlight the incnsistent trial testimny that will be impeached. Next, the lawyer shuld identify and authenticate the dcument that will shw the incnsistent statement given by the same witness. In rder t establish the fundatin necessary t impeach an individual with the use f an incnsistent statement, the witness shuld be asked the fllwing questins: 1. D yu remember having given a statement t (persn) regarding hw the accident ccurred? 2. Did yu give that statement freely? 3. Wh was present when yu gave yur statement? 4. When was the statement given? The witness shuld then be shwn the exhibit and asked the fllwing questin: I shw yu what has been marked as Plaintiff s Exhibit A fr identificatin. Is this a cpy f yur swrn statement? Finally, read the relevant prtin f the statement that directly cntradicts the trial testimny f the witness. Impeachment thrugh the use f depsitins r dcumented incnsistent statements shuld be accmplished in an rganized fashin and shuld be perfrmed smthly and directly. The relevant pages and sectins f the depsitin shuld be marked and highlighted befrehand s as nt t fumble thrugh pages, lse mmentum, r lse cntrl f the witness. There is nthing mre impressive than t see an attrney prperly impeach a witness thrugh the use f incnsistent statements in dcuments r in a depsitin. It is a 20

21 very simple prcedure t learn and, nce mastered, will prve t be an effective means f crss-examining even the mst dangerus witness at trial. IV. IMPEACHMENT WITH AUTHORITATIVE TREATISES An effective way f crss-examining expert witnesses is thrugh the use f an authritative treatise. This methd f crss-examinatin is specifically authrized by Fla. Stat. Sect which states: Statements f facts r pinins n a subject f science, art, r specialized knwledge cntained in a published treatise, peridical, bk, dissertatin, pamphlet, r ther writing may be used in crss-examinatin f an expert witness if the expert witness recgnizes the authr r the treatise, peridical, bk, dissertatin, pamphlet, r ther writing t be authritative, r, ntwithstanding nnrecgnitin by the expert witness, if the trial curt finds the authr r the treatise, peridical, bk, dissertatin, pamphlet, r ther writing t be authritative and relevant t the subject matter. The first step twards using a treatise fr crss-examinatin is t establish the fundatin fr its authrity. This is accmplished by either having the expert witness, anther expert in the case, r the Curt recgnize the authr f the treatise, peridical, bk, dissertatin, pamphlet, r ther writing in questin t be authritative. Myrn v. Dctrs General Hspital, Ltd., 23 Fl. L.W. D105, D109 (Fla. 4 th DCA 1997). Factrs that the Curt may cnsider in making its determinatin include the swrn statements f the ther experts in the case that the materials are authritative. Kirkpatrick v. Wlfrd, 23 Fl. L.W. D166, D167 (Fla. 5 th DCA 1997); Chestertn v. Fisher, 655 S.2d 170 (Fla. 3d DCA 1995). Yu need nt prve by a prepnderance f the evidence that the literature is indeed authritative. Kirkpatrick, 23 Fl. L.W. at 167. When the Curt finds cmpetent evidence that the materials are authritative it shuld permit their use. Id. 21

22 In preparing fr trial, yu shuld read all articles, bks, and jurnals that are related t yur ppsing expert s field. Effective research will likely prduce published psitins frm authritative surces that are cntrary t the ppsing expert s psitin. Als, making use f yur wn expert as a valuable resurce in btaining materials will ease the preparatin necessary fr the crss-examinatin f yur ppsing expert. V. DOCUMENTARY EVIDENCE Befre dcumentary evidence may be intrduced, certain fundatins must be established. Yu may have the best prf in the wrld, but if it is nt admitted evidence, it might as well nt exist at all. Regardless f the type f evidence, whether recrds, bills, phtgraphs, letters, diagrams, r charts, yu must lay the prper fundatin befre the dcuments may be intrduced as evidence. This article ffers sme suggestins n hw t establish the prper fundatin fr the admissin f different types f evidence. A. Business Recrds: 1. Yu shuld ask the fllwing questins in rder t lay the fundatin fr business recrds t be admitted int evidence and cnsidered an exceptin t the hearsay rule: a. Are yu familiar with Exhibit A (business recrds) fr identificatin? b. Is it yur cmpany s business practice t prepare these types f recrds? c. Were these recrds prepared in the rdinary scpe f the business f yur cmpany? 22

23 d. Were they prepared by smene with knwledge? e. Were they prepared at r abut the time the matters reflected in the recrds ccurred? f. Were these dcuments stred after they were prepared? g. Where were these dcuments retrieved frm? h. Is it a regular part f yur business t keep and maintain recrds f this type? i. Are these dcuments f the type that wuld be kept under yur custdy r cntrl? j. Mve the dcuments int evidence. 2. See Fla. R. Evid (6). B. Tape Recrdings: 1. Yu shuld ask the fllwing questins in rder t lay the fundatin fr tape recrdings t be admitted int evidence: a. Have yu had the pprtunity t hear the vice f Mr. X befre? b. Hw many times have yu heard his vice? c. Tell us hw yu are familiar with Mr. X s vice? d. Have yu heard the recrding marked as Exhibit B fr identificatin? e. D yu recgnize the vice? f. T whm des the vice belng? g. Mve the recrding int evidence. 23

24 C. Phtgraphs: 1. Yu shuld ask the fllwing questins in rder t lay the fundatin fr phtgraphs t be admitted int evidence: a. I am shwing yu what has been marked as Exhibit C fr identificatin. D yu recgnize what is shwn in this phtgraph? b. Are yu familiar with the scene (persn, prduct, etc.) prtrayed in this phtgraph? c. Hw are yu familiar with the scene prtrayed in the phtgraph? d. Des the scene prtrayed in the phtgraph fairly and accurately represent the scene as yu remember it n (date in questin)? e. Mve the phtgraph int evidence. D. Authenticating a Letter: 1. Yu shuld ask the fllwing questins in rder t authenticate a letter: a. Are yu familiar with the signature f Mr. Smith (persn wh signed the letter)? b. Hw are yu familiar with Mr. Smith s signature? c. Shw the witness what has been marked Exhibit D fr identificatin. d. D yu recgnize the signature at the bttm f this letter? e. Whse signature is this? f. Mve the letter int evidence. 24

25 E. Diagrams: 1. Yu shuld ask the fllwing questins in rder t lay the fundatin fr diagrams t be admitted int evidence: a. I am shwing yu what has been marked as Exhibit E fr identificatin. Are yu familiar with the area lcated at 16 th Street and 12 th Avenue in Dade Cunty, Flrida? b. Hw are yu familiar with this area? c. Based n yur familiarity with the area, can yu tell us whether the scene depicted in this diagram fairly and accurately represents the area as yu recall it n the date in questin? d. Mve the diagram int evidence. F. Refreshing Recllectin: 1. T refresh an individual s memry n a particular matter, yu shuld first establish that the witness des nt remember that matter. Then ask the fllwing questins? a. Did yu at sme time remember this? b. Did yu at any time prepare a dcument setting ut what happened? c. Wuld a review f this dcument assist yu in remembering the matters that we are cncerned abut tday? d. I am handing yu what has been marked Exhibit F fr identificatin. e. Please review it and tell me if it helps yu t remember. 25

26 f. Des that dcument refresh yur recllectin? g. D yu nw have an independent recllectin f the facts? h. Tell us what happened. G. Authenticating Handwriting in a Dcument: 1. Yu shuld ask the fllwing questins in rder t authenticate a handwritten dcument: a. Are yu familiar with the handwriting f Mr. Smith? b. Hw are yu familiar with Mr. Smith s handwriting? c. I shw yu what has been marked Exhibit G fr identificatin. d. D yu recgnize the handwriting in this dcument? e. T whm des it belng? f. Mve exhibit int evidence. 2. If yu are stuck in attempting t intrduce dcumentary evidence at trial and d nt remember hw t d it, just recall the basic steps necessary t establish an evidentiary fundatin: a. Shw that the witness is familiar with the dcument that yu are attempting t admit int evidence. b. Have the witness authenticate the dcument. c. Establish that the dcument is what it purprts t be. d. Demnstrate the dcument s relevance t the case. 26

27 e. After yu have accmplished the abve steps, chances are that yu have laid the prper fundatin fr the exhibit t be admitted int evidence. Yu shuld then bldly ffer it as yur next exhibit in the case. Many experienced attrneys ften stumble at trial when attempting t admit dcuments int evidence. It is imprtant t review the necessary fundatin befre starting trial s that yur presentatin will g smthly. Yu may cnsider putting a cpy f this article in yur ntebk t refresh yur recllectin as needed. VI. CONCLUSION T be truly in cntrl in trial, yu must learn t master the Rules f Evidence. Once yu learn hw t effectively use the Rules f Evidence, yu will be empwered in the curtrm and will be able t enjy the cnfidence f knwing that yu are able t take n any evidentiary challenge. 27