Note from the Chair of the Publication Committee and the Editor: The Record is thrilled to publish the Code and Rules of Evidence Committee’s (CREC) yearly case summaries that summarize recent opinions addressing evidentiary issues. CREC’s Member Communication Subcommittee prepares these summaries each year for practitioners to stay afloat on evidentiary issues throughout Florida. Stay tuned for CREC’s next edition of these summaries!
CODE AND RULES OF EVIDENCE COMMITTEE
Member Communication Subcommittee
2023–2024 Case Summaries
Discount Tire v Bradford, 373 So. 3d 399 (Fla. 5th DCA 2023) — Corporate Internal Standards
The Fifth District held that a violation of a company’s internal standard is not evidence that a defendant violated an industry standard of care. In this case, the court reversed the trial court’s grant of a new trial.
Specific to electric utility companies, common internal standards (i.e. clearances between vegetation and overhead high voltage lines) are critical for determinations of alleged liability. Since there are no industry standards for such clearances this holding would appear to eliminate the idea that a violation of an internal standard is grounds of alleging negligence.
That said, however, there have been trial court “Daubert” hearings that determined that a violation of a company’s internal standards, although not by itself, justifies a new trial, a dismissal, or a granting of summary judgment, and the court determined that such violation of an internal standard should be an item of evidence for a jury to evaluate.
In addition, there are numerous national safety codes, such as the National Electric Safety Code, that, although not implicating any industry standards, clearly indicates many Code sections that imply the need to have internal clearance standards to protect facilities from dangerous damage.
Facey v. State, 390 So. 3d 123 (Fla. 3d DCA 2024) — Impeachment of Witness
This case arises out of a charge for attempted robbery, aggravated assault upon a person 65 years of age or older, and resisting an officer without violence. The victim took the stand and admitted that he had previously been convicted of nine felonies and that “none …. Were violent for real.” Defense counsel argued that this comment opened the door to question the witness about the nature and circumstances of the convictions. The trial court prohibited further questioning on the subject.
Under Florida law, the credibility of a witness may be impeached under certain limited circumscribed conditions “by evidence that the witness has been convicted of a crime.” § 90.610(1), Fla. Stat. (2023).
An attorney “is permitted to attack the [witness’s] credibility by asking whether the [witness] has ever been convicted of a felony or a crime involving dishonesty or false statement, and how many times.” Gavins v. State, 587 So. 2d 487, 489 (Fla. 1st DCA 1991).
As it is well-established that if a witness admits to or testifies accurately to the number of convictions, the witness may not be questioned further regarding prior convictions, nor questions as to the nature of the crimes. The exception to this rule is when the witness opens the door to a broader inquiry. A door is opened when the witness attempts to mislead or delude the jury about their prior convictions.
The Third District held that the trial court did not abuse its discretion in curtailing the cross-examination.
R.V. v. State, 388 So. 3d 952 (Fla. 3d DCA 2024) — Foundation; authentication; silent witness theory
R.V. was adjudicated delinquent for battery and placed under the supervision of the Department of Juvenile Justice. The battery occurred at a home for abused, abandoned, and neglected students. The incident was captured by a surveillance camera. An employee at the facility gave the video to law enforcement.
The victim did not appear for the adjudicatory hearing. The state proceeded to trial during which two witnesses vouched for the authenticity of the video. One witness said he used his computer credentials to retrieved the video shortly after the incident. That witness directed the facilities’ IT department to “memorialize the date and time of the incident, archive the video, and provide a copy of the footage to law enforcement on site.” He also confirmed the location of the incident and identified both R.V. and the victim.
The second witness testified that he interviewed R.V. and the victim and collected the video from the IT department. He watched the video and explained that it depicted what occurred. He also identified his initials on the CD of the recording and confirmed the video presented in court was the same video he watched on the day of the incident.
R.V. objected for lack of foundation. The Third District reviewed the issue under the abuse of discretion standard.
The court explained that authentication is a “relatively low bar,” which only requires “‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’” (Quoting section 90.901, Fla. Stat.). Additionally, the factfinder “is authorized to render the ultimate determination as to the authenticity of the evidence.” (Citing Gosciminski v. State, 132 So. 3d 678 (Fla. 2013); Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016)).
The court explained that traditionally, “to overcome concerns regarding manipulation,” the proponent of the evidence establishes foundation under the “pictorial testimony” theory. Under this theory, a witness with personal knowledge of the image depicted testifies that the photograph is a fair and accurate representation of the subject.
But there is a second method of laying a foundation—the silent witness theory, under which a photograph may be admitted on a showing of the reliability of the production process. The silent witness theory applies to video evidence.
The reliability of the production process is determined by considering the following non-exhaustive factors:
(1) whether the evidence establishes the date and time the image was captured; (2) evidence of image manipulation; (3) the condition and capability of the equipment that produced the image; (4) procedural consideration relating to the preparation, testing, operation, and security of the equipment involved; and (5) testimony identifying any participants depicted in the image.
In this case, the second witness
identified his signature on the compact disc, . . . and carefully explained the procedure he followed for accessing and retrieving the footage. The . . . IT Department recorded the date and time the image was captured, . . . and there was no evidence of any editing or tampering. [The witness also confirmed the footage viewed in court was consistent with that produced on the day of the incident, and he identified R.V. and the alleged victim on the video.
“Under these circumstances, the ‘distinctive characteristics and content, in conjunction with circumstantial evidence, [were] sufficient to authenticate the video.’” (Quoting Lamb v. State, 246 So. 3d 400, 409 (Fla. 4th DCA 2018)).
The Third District affirmed, finding no abuse of discretion.
State v. S.G., 379 So. 3d 584 (Fla. 6th DCA 2024) — Hearsay
In a juvenile delinquency case, the Sixth District held that the trial court erred in excluding evidence of co-conspirator statements and remanded for reconsideration of whether the State met its burden for a hearsay exception under section 90.803(18)(e), Florida Statutes.
The case at issue involved a thirteen-year-old girl, S.G., who was charged with conspiracy to commit first-degree murder after the discovery of text messages exchanged between the girl and other students, and following law enforcement interviews of several children, including S.G.
As an initial matter, S.G. moved to suppress statements she made to a police detective who came to S.G.’s home and interviewed her about the report of threatening texts without giving the Miranda warnings. Although the trial court suppressed the statements, finding that the detective implied leniency or coercion in the way she approached the interview of the middle school suspect, the Sixth District reversed, holding that the child was not in custody for Miranda purposes and S.G.’s statements were made freely and voluntarily.
Along with S.G.’s motion to suppress her own statements, she moved in limine to exclude statements made by the alleged co-conspirators. The trial court found that the State had not met its burden under section 90.803(18)(e), Florida Statutes, to make an initial showing that a conspiracy existed in order to meet the hearsay exception for co-conspirator statements. Because the trial court had suppressed S.G.’s own statements, it found that her words were inadmissible and could not be used as proof of the existence of a conspiracy.
The Sixth District again reversed, holding that the trial court should not have excluded S.G.’s statements from being used to establish the existence of a conspiracy. This issue of the admissibility of the other students’ statements was remanded to the trial court for a new hearing, at which S.G.’s own statements to law enforcement may be used to establish a conspiracy. Following the requirements of section 90.803(18)(e), Florida Statutes, if through the use of S.G.’s statements the State establishes a conspiracy, the trial court must determine: (1) whether the declarants and S.G. were members of the conspiracy and (2) whether the out-of-court statements were made during the course of and in furtherance of the conspiracy. If the answer to both questions is “yes,” the statements will be admissible as co-conspirator statements, an exception to hearsay.
Vindel v. Stewart, 388 So. 3d 228 (Fla. 3d DCA 2024) — Business Records Authentication
This case arises out of a petition seeking dissolution of marriage in Miami-Dade County in which a trial was held that determined that the subject Honduran bank accounts were not marital assets subject to equitable distribution. The former wife challenged the trial court’s determination that the bank records and business letter signed by the general manager in Coral Gables were not the same as the bank records in Honduras and as a result are not authentic. The trial court admitted the bank records under the business records exception to the hearsay rule. § 90.803(6)(a), Fla. Stat.
The former husband sought to admit the foreign bank account records through a certification of authenticity, which must satisfy the requirements set forth in section 90.902(11), Florida Statutes. The general manager of the local Coral Gables office provided the records with an introductory letter. The introductory letter failed to certify or declare that the records were made at or near the time of the occurrence of the matters set for by, or from information transmitted by a person having knowledge of those matters, or that the records were kept in the course of the regularly conducted activity of the bank, or that the records were made as a regular practice in the course of the regularly conducted activity of the bank. As a result, the introductory letter failed to satisfy the foundational requirements for authentication of the subject bank records.
The Third District held that the trial court erred in admitting the bank records, and as a result there was no competent substantial evidence to support a determination whether the accounts contained marital assets or not.
