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!
Colley v. State, and Colley v. Department of Corrections, 51 Fla. L. Weekly, SC2924-1011, SC2024-1647 (Fla. Dec. 30, 2025) — Sworn Statement
In this consolidated Florida Supreme Court decision (SC2024-1011 & SC2024-1647), the Supreme Court affirmed the denial of postconviction relief and denied Colley’s petition for a writ of habeas corpus following his convictions, including two death sentences, for multiple homicides and related crimes. The opinion systematically rejects Colley’s claims of trial counsel ineffectiveness and appellate counsel errors. Many of the issues turn on the admissibility, presentation, and evaluation of evidence at trial and in the evidentiary hearing below.
One of Colley’s principal claims was that trial counsel unreasonably conceded his guilt to second-degree murder rather than pressing for manslaughter. Colley argued this strategy was unsupported by counsel’s consultations and harmed his defense. At the evidentiary hearing, counsel explained they advised Colley that manslaughter was unrealistic given the evidence, and that aiming for second-degree murder was more credible, especially after presenting the State’s own recordings. The Court treated this as a strategic decision, not an evidentiary error.
Colley next claimed trial counsel failed to prepare him to testify. The evidentiary hearing included testimony from counsel and Colley on this point. Counsel testified that they recommended Colley testifying after the State rested, and the record shows the trial court conducted a thorough colloquy confirming that Colley voluntarily (and knowingly) waived his right to testify.
The Supreme Court affirmed, relying on the evidentiary hearing’s credibility findings, and the fact that Colley’s own evidentiary presentation failed to establish how his testimony would have changed the outcome given the State’s overwhelming evidence.
Another claim was that trial counsel ineffectively failed to challenge or investigate the testimony of Brittany Manno, a State witness whose testimony about hearing a conversation between Colley and his father was offered as evidence of premeditation. Colley argued that an audio expert would have testified that the distance between the speakers made such hearing implausible.
The Florida Supreme Court reaffirmed the rule of sequestration is designed to prevent witnesses from tailoring their testimony based on hearing other testimony and to discourage fabrication, inaccuracy, and collusion; the rule allows a trial court to exclude witnesses from the courtroom until called unless an exception applies. The Court rejected Colley’s postconviction claim that trial counsel was ineffective for not objecting when the State’s lead detective, Detective English, was exempt from sequestration and allowed to sit at counsel table, explaining that the trial court properly exercised its discretion under section 90.616(2)(c), Florida Statutes, because the detective’s presence was shown to be essential to the State’s case and any objection likely would have been overruled.
The Supreme Court upheld the circuit court’s summary denial of this claim, concluding that even absent Manno’s testimony, the premeditation evidence was overwhelming and independently supported by witness testimony and circumstantial evidence (e.g., Colley arming himself, approaching the house stealthily, and entering). Here, the Court emphasized that a defendant alleging ineffective assistance must show a reasonable probability that but for counsel’s failure to challenge evidence, the outcome would differ. That standard was not met with respect to Manno’s testimony.
The Court addressed hearsay and opinion evidence in the penalty phase, explaining that references by the State’s expert, Dr. Danziger, to the contents of a defense expert’s report did not require exclusion as hearsay because, under Florida law, “any such evidence that the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.” § 921.141(1), Fla. Stat. The trial court offered Colley the opportunity to present a surrebuttal witness (Dr. Krop) to counter those statements, so any hearsay objection would have been meritless and trial counsel was not ineffective for failing to raise one.
Throughout its opinion, the Florida Supreme Court underscored that counsel’s decisions about how to present or challenge evidence even controversial decisions are subject to deference if supported by rational explanations at the evidentiary hearing. Many of Colley’s claims were rooted in disagreement over defense tactics or the strength of specific evidence. But because the evidentiary hearing and record supported the trial counsel’s decisions and no prejudicial error could be shown, the Supreme Court affirmed without finding that any evidentiary issue undermined the reliability of the convictions or sentences.
Richardson v. Tenery, 422 So. 3d 1216 (Fla. 6th DCA 2025) — Treating Physician Opinion Testimony
Appellant, defendant below, appealed a jury verdict in the amount of $2,720,100, $1,000,000 of which represented appellee’s future medical expenses. Appellant argued that the trial court committed reversible error by allowing appellee’s treating physician to offer an undisclosed expert opinion regarding appellee’s future medical expenses.
The doctor in question was disclosed as a “treating physician” and “non-retained expert,” and appellee objected on that basis to any expert discovery directed to this doctor. Treatment records appellant received from the doctor, in response to a subpoena, referenced medical treatments appellee would require in the future, but did not include any life care plan or any actual treatment costs.
Appellant filed a motion in limine to limit the treating physician’s testimony to opinions based on his own medical records. The motion in limine was denied with the trial court ruling that treating physicians not disclosed as experts would generally be limited to opinions actually developed during the course of treatment.
At trial, appellant objected to a “Categories of Care” record prepared by the treating physician in preparation for his testimony and objected to the treating physician testifying to any costs of care outside his own specialty. The doctor admitted that he had not generated any documents or notes reflecting future care costs until two nights before his trial testimony; up to that point there had only been discussions of future costs in general categories.
The trial court overruled the objections, the doctor testified, and the Categories of Care document was admitted into evidence. During the doctor’s trial testimony, he acknowledged that: (1) his opinions were partly based on what Appellant has been doing and seeing all of her medical records; (2) that he performed a cost analysis the week of trial after appellee’s attorneys reached out to say they would be calling him to testify; and (3) that he is very familiar with the cost of medical care in the area because he is a physician life planner. Appellant filed a motion for a new trial, but the trial court denied the motion.
The Sixth District reversed and remanded for a new trial on future damages, concluding the trial court abused its discretion in finding no violation when appellee offered the undisclosed expert opinion of her treating physician regarding future medical treatment and costs. The Sixth District determined that the treating physician’s opinions as to appellee’s future medical treatment and costs, including opinions based on his review of her medical records from other providers, exceeded the scope of a fact witness treating physician and crossed the line into expert testimony. The court went on to say that performing a cost analysis for the entirety of appellant’s future medical treatment just days before trial was the work of an expert witness, clearly done for purposes of assisting the jury in determining damages at trial. The court also found prejudice, based on the cost analysis being sprung on appellant at trial and appellant’s inability to obtain expert discovery from the doctor.
Danny Kapson and Rose Noelle v. Homeowners Choice Prop. & Cas. Ins. Co., Inc., 427 So. 3d 172(Fla. 3rd DCA 2026) — Admissible Evidence
The Third District ruled that a windstorm carrier was permitted to introduce evidence that petitioners had already made a claim and received benefits from their flood insurance carrier.
After their home was damaged during Hurricane Irma, the petitioners presented a claim to their flood insurance carrier and the carrier promptly paid without dispute. Thereafter, the petitioners brought a claim against their windstorm carrier and argued that all damage to their home was covered by the windstorm policy. The trial court permitted the windstorm carrier to introduce evidence pursuant to sections 90.401 and 90.402, Florida Statutes, that the petitioners had already submitted a claim to the flood insurance carrier and received benefits.
The petitioners sought review of the trial court’s ruling, and the Third District affirmed the ruling and found that evidence that the flood benefits were received was relevant to whether flood or wind caused the total loss of the home.
The court found that section 90.408, Florida Statutes, which provides that evidence of offers to compromise is inadmissible, was inapplicable. The court reasoned that the flood insurance carrier provided benefits to the petitioners based on its contractual duty and not as a result of a disputed claim or settlement. It also noted that the common law collateral source rule did not operate to bar admission of evidence that benefits were received from the flood insurer because such evidence was relevant to the issue of liability and could rebut a party’s theory of the case.
De Cardenas v. White Pine Insurance Co., 51 Fla. L. Weekly D648, 3D2023-0195 (Fla. 3d DCA Mar. 31, 2026) — Daubert
In De Cardenas v. White Pine Insurance Co. (Fla. 3d DCA Mar. 31, 2026), homeowners sued their insurer for failure to pay Hurricane Irma damages, and the parties presented competing expert affidavits on whether the damage to the home was caused by an event that was covered under the insurance policy. The trial court found that the homeowners’ expert, a roofer with decades of experience, did not meet the Daubert criteria and granted summary judgment for the defendant insurer.
The Third DCA reversed, holding that the trial court abused its discretion in excluding the expert. The court explained that under section 90.702, Florida Statutes, governing admissibility of expert testimony, an expert may be qualified by experience alone and need not possess a particular academic degree: “The threshold issue for a Daubert analysis is the qualification of the expert witness in the relevant field. An expert can be qualified not only due to their academic background, but also relevant skill, experience, or training.” The court further clarified that to meet the Daubert standard an expert must simply “possess the minimum level of specialized knowledge to opine intelligently and assist the trier of fact.” Id.
The Third DCA further found the trial court erred by effectively weighing the evidence and credibility of the competing experts, rather than performing the court’s proper Daubert gatekeeping analysis, which must be limited to whether the testimony was based on sufficient facts and reliable methodology. Because the plaintiff’s expert’s affidavit reflected a methodology grounded in inspection, wind data, and experience, and because the trial court failed to conduct a sufficiently developed Daubert analysis, exclusion was improper.
The Third DCA held that the affidavit on its face met the Daubert factors, pointing out that the trial court could have—but did not—hold a Daubert hearing. The Third District then determined the plaintiff’s expert should not have been excluded based on the trial court’s improper Daubert analysis and remanded for further proceedings.
Deutsche Bank Nat’l Trust Co. as trustee for New Century Home Equity Loan Tr. 2005-1 v. Del Callejo, 427 So. 3d 1085, (Fla. 2d DCA 2025) — Business Records Hearsay Exception (§ 90.803(6), Fla. Stat.)
The Second District Court of Appeal reversed the trial court’s order granting the defendants Del Callejos’ (“Borrowers”) motion for involuntary dismissal of the plaintiff Deutsche Bank’s (“Lender”) case at trial and dismissing the Lender’s claims for mortgage foreclosure and reformation, finding that the Lender had presented competent substantial evidence of the principal loan amount owed by the Borrowers to the Lender. In so holding, however, the Second District affirmed the trial court’s ruling that a “judgment figures” document prepared by the Lender in preparation for trial did not satisfy the hearsay exception for business records—though on different grounds than those espoused by the trial court.
At trial, the Lender attempted to present competent substantial evidence of the amount that the Borrowers owed, including amounts for interest, taxes, insurance, and other advances and expenses, through a “judgment figures” document. That document listed all the amounts the Borrowers allegedly owed on a category-by-category basis, including a principal amount of $125,613.85, and showed interest calculations. The Lender attempted to introduce the document into evidence under the business records exception to the rule against hearsay. See § 90.803(6)(a), Fla. Stat. (providing for the admissibility of a “record … of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such … record …, all as shown by the testimony of the custodian or other qualified witness, … unless the sources of information or other circumstances show lack of trustworthiness”).
The trial court excluded the judgment figures document from evidence, finding that it was not admissible under the business records exception because the figures presented therein were not consistent with the figures presented in other documents introduced by the Lender. The trial court reasoned that for business records “to be reliable and trustworthy, they have to be consistent.”
While the Second District agreed the judgment figures document did not satisfy the business records exception to the rule against hearsay, it disagreed with the trial court’s reasoning for excluding the document, finding that the trial court’s rationale imposed a requirement in derogation of the statutory text. The trustworthiness requirement in section 90.803(6)(a), Florida Statutes, does not depend on whether the document offered into evidence as a business record is “consistent” or not with other records, the Second District held. Rather, section 90.803(6)(a)’s trustworthiness requirement requires an evaluation of “the sources of information or other circumstances.” While the judgment figures document was not “consistent” with other records the Lender had introduced into evidence, the Lender’s testimony satisfactorily explained the inconsistency and the Borrowers asserted nothing in response to undermine the document’s reliability. Indeed, if anything, the judgment figures document was more trustworthy than the other records introduced by the Lender in light of all the evidence presented at trial, the Second District noted. Thus, the trial court erred in excluding the judgment figures document on these grounds.
However, because the judgment figures document was prepared by the Lender shortly before trial, the Second District held that the document nonetheless did not satisfy the business records exception to the rule against hearsay as it did not qualify as a business record at all. See § 90.803(6)(a), Fla. Stat. (requiring for a record of transactions to qualify for the business records exception, it must be made “at or near the time” of those transactions).
Sedgwick Claims Mgmt. Servs. v. Thompson, 419 So. 3d 1104 (Fla. 1st DCA 2025) — Expert Challenges in Worker’s Compensation (§ 90.702, Fla. Stat.)
As a matter of first impression, the First District Court of Appeal held that while the rules of evidence apply to workers’ compensation proceedings, the Florida Legislature had carved out a statutory exception for expert medical advisors, which by its plain language precludes application of the Daubert standard to expert medical advisor reports and opinions in workers’ compensation proceedings because such reports and opinions are admissible in such proceedings as a matter of law.
On appeal of a final order determining that Ryan Thompson (“Claimant”) suffered a compensable, on-the-job accident, the Geo Group, Inc., and Sedgwick Claims Management Services (“E/C”) argued, among other things, that the judge of compensation claims (“JCC”) reversibly erred by denying their Daubert objection to the admissibility of the report and opinions of the expert medical advisor (“EMA”). In affirming the JCC’s order, the First District wrote to address a matter of first impression—whether section 440.25(4)(d), Florida Statutes, governing procedures for workers’ compensation mediation and hearings, precludes a Daubert challenge to EMA opinions. Based on the plain and unambiguous language of the statute, the First District found that it does.
Section 440.25, which governs “[p]rocedures for mediation and hearings” in workers’ compensation proceedings, provides, in relevant part:
When there is a conflict in the medical evidence submitted at the hearing, the provisions of s. 440.13 shall apply. The report or testimony of the expert medical advisor shall be admitted into evidence in a proceeding and all costs incurred in connection with such examination and testimony may be assessed as costs in the proceeding, subject to the provisions of s. 440.13.
§ 440.25(4)(d), Fla. Stat. (emphasis original in opinion).
After setting forth a timeline of relevant statutory amendments and distinguishing precedent interpreting prior versions of the relevant statutory provisions, the First District held that—based on its plain language—section 440.25 precluded application of the Daubert standard to the admissibility of an EMA’s report and testimony in worker’s compensation proceedings. While an EMA’s report and opinions may still be challenged as to their weight and credibility, section 440.25(4)(d) renders EMA reports and opinions admissible as a matter of law and thus precludes application of Daubert thereto.
Kenyon v. State, 429 So. 3d 473 (Fla. 4th DCA 2025) — Recorded Statements
In Kenyon v. State, the Fourth District Court of Appeal affirmed the defendant’s convictions arising from a violent encounter in a crowded sports bar during officers’ attempt to serve a violation-of-probation warrant. Although the opinion addresses multiple issues, it provides substantial guidance on evidentiary rulings under the Florida Evidence Code, particularly relevance, unfair prejudice, impeachment, and the doctrine of “opening the door.”
A central evidentiary issue involved the admission of Kenyon’s own recorded statements, including statements he made while arguing his motion for judgment of acquittal (outside the jury’s presence) and a subsequent jail call discussing that argument. Kenyon objected under sections 90.401 and 90.403, Florida Statutes, arguing that the statements were irrelevant, cumulative, and unfairly prejudicial especially because they referenced the jury’s absence. The trial court admitted the evidence, characterizing the statements as significant admissions.
On appeal, the Fourth District applied the abuse-of-discretion standard and upheld the ruling. The court reaffirmed that relevant evidence under section 90.401 includes any evidence tending to prove or disprove a material fact, and that exclusion under section 90.403 is an “extraordinary remedy” to be used sparingly. The court emphasized that prejudice alone is insufficient; the danger must be unfair prejudice that substantially outweighs probative value. Kenyon’s admissions regarding possession of firearms, efforts to flee, and intent to dispose of the weapons were probative of knowledge, intent, and consciousness of guilt, all material to the charged offenses. The reference to the jury’s absence was deemed contextual rather than misleading or inflammatory.
The opinion also addresses “opening the door” doctrine principles. Although references to the violation-of-probation warrant had been redacted pretrial, Kenyon’s cross-examination of an officer focused heavily on consensual versus non-consensual police encounters. This line of questioning suggested the officers may not have been engaged in the lawful performance of a legal duty, an essential element of attempted murder of a law enforcement officer. The court held that Kenyon thereby opened the door, allowing the State to introduce otherwise inadmissible evidence explaining the officers’ lawful purpose under Rodriguez v. State and related precedent.
Perhaps the most instructive evidentiary ruling concerns improper impeachment of a defense expert witness. The State was permitted to cross-examine the expert about prior employment termination, license revocation, and an investigation for improper evidence handling. The Fourth District held this was error, reiterating that under sections 90.608, 90.609, and 90.610, Florida Statutes, a witness may not be impeached with specific acts of misconduct absent a qualifying conviction. Florida law intentionally diverges from Federal Rule of Evidence 608(b), and allegations or professional discipline unrelated to truthfulness are inadmissible for impeachment. Nonetheless, the error was deemed harmless beyond a reasonable doubt under DiGuilio given the overwhelming independent evidence and the limited scope of the improper questioning.
Overall, the decision reinforces strict limits on impeachment by prior bad acts, underscores the narrow application of section 90.403, Florida Statutes, exclusions, and illustrates how defense strategy can inadvertently open evidentiary doors particularly when a defendant proceeds pro se.
Walgreens Co. v. Chaux, 429 So.3d 96 (3d DCA 2026) — Daubert Gatekeeping Function
Defendant Walgreens Co. appealed from a final judgment resulting from a jury verdict in a slip and fall case and denial of their subsequent motion for a new trial. Among the issues on appeal was the trial court’s decision to exclude the testimony of Walgreens’ expert witness. Specifically, Walgreens disclosed an internal medicine physician as an expert witness and, during his deposition, he testified that the plaintiff likely suffered an alcohol withdrawal seizure at the time of her fall, which would have caused her to lose consciousness and fall backwards. On the morning of the first day of trial, the judge considered the plaintiff’s motion in limine and asked Walgreens what evidence the expert relied upon in coming to that opinion. Walgreens responded that the expert reviewed the plaintiff’s medical records, which showed an alcohol problem in the past, coupled with blood test results. The trial court granted the motion in limine on the ground that the expert’s opinion was based not on any scientific principle, but on supposition and stacking of inferences.
On appeal, the Third District held that the trial court abused its discretion in excluding the expert’s testimony. The trial court’s gatekeeping function with expert testimony is to ensure that the testimony rests on reliable foundation and is relevant to the task at hand. The Third District noted that the expert’s proffered deposition testimony indicated the expert reviewed the plaintiff’s medical records from two hospitals from the day of her fall, two compulsory medical examination reports, the plaintiff’s historical medical records, the fire rescue report, and depositions. The expert’s proffered deposition testimony was that he found it important that the plaintiff suffered from flu symptoms for two days before the fall and the plaintiff’s medical records showed the hospital ordered administration of thiamine immediately after the fall, there was variation in the plaintiff’s liver levels on the day of the fall, and the plaintiff’s husband reported she had a history of alcoholism. The expert concluded that the plaintiff had a seizure before falling, which was likely a withdrawal seizure, but she could also have fainted due to low magnesium levels, low blood pressure, or the flu. The Third District observed that the expert’s opinion was based on extensive evaluation and comparison of the plaintiff’s medical records and the product of reliable principles and methods. The trial court’s characterization of the expert’s opinion as “supposition and stacking of inferences” was incorrect and exclusion of his testimony was not a proper application of the court’s gatekeeping function.
