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
2024–2025 Case Summaries
Suiter v. State, 406 So. 3d 1225 (Fla. 2d DCA 2025) — Prior Bad Acts
The Second District Court of Appeal affirmed the Appellant’s judgment and sentence. Appellant, defendant below, was charged with grand theft. The facts underlying the charge involved Appellant allegedly stealing glucose monitors that were misdelivered to his apartment. The package containing the glucose monitors was intended for care of a diabetic, black child who lived in a neighboring apartment, but the appellant left the empty box in the apartment manager’s office instead of leaving the box and the glucose monitors at the correct apartment door. The State alleged that Appellant’s motive in stealing the glucose monitors, which were useless to him, was ill will, spite, or evil intent.
Before trial, Appellant moved in limine to exclude testimony or evidence regarding Appellant being racist or prejudiced, as well as any evidence about disputes between appellant and others in the apartment complex. The trial court excluded any racist content, but allowed the minor child to testify generally as to Appellant’s conflicts with the mothers of children in the apartment complex, Appellant’s hateful statements about them, and Appellant’s threats of harm to their children. The State questioned the minor child within those guidelines, without objection. The State argued at closing that the child’s testimony provided important context for why Appellant would take glucose monitors he did not need. Appellant was found guilty and sentenced to 364 days in jail. On appeal, he argued that the trial court erred in allowing testimony regarding Appellant threatening to harm children in the apartment complex.
The State contended that the issue was waived because Appellant did not object during the child’s testimony at trial. However, the Second District noted that the trial court had definitively ruled on the motion in limine, obviating the need for appellant to object during the testimony. While such an objection used to be required to preserve error, it is no longer the case because “[i]f the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” § 90.104(1), Fla. Stat. (2023).
Turning to the trial court’s ruling on the motion in limine, the Second District noted that section 90.404(2)(a), Florida Statutes, provides, similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
While evidence of prior bad acts is admissible to show motive, motive must be a material fact at issue in the case. Here, the Second District determined that the testimony about Appellant’s prior hateful statements was relevant to establish his motive for stealing glucose monitors. The Second District also concluded that the trial court appropriately limited the scope of the testimony, such that the probative value of the evidence outweighed the prejudicial impact. On that record there was no abuse of discretion and the judgment and sentence were affirmed.
Fernandez v. State, 392 So. 3d 611 (Fla. 2d DCA 2024) — Hearsay
The Second District Court of Appeal reversed the Appellant’s judgment and sentence due to improper admission of his prior criminal history at trial. The Appellant, defendant below, was charged with felony battery with great bodily harm. The facts underlying the charge involved the victim removing the Appellant’s father-in-law from a club while the victim worked security, after which the Appellant’s father-in-law and the victim continued speaking at the doorway of the club. The Appellant, as shown on security video, struck the victim in his face and then continued striking the victim, who had fallen to the ground and momentarily blacked out.
At trial, Appellant’s theory was that he struck the victim in defense of his father-in-law. The father-in-law testified that the victim was being aggressive and he was afraid the victim would resort to violence. The father-in-law also testified that Appellant was “continuously trying to extinguish the situation” between the father-in-law and the victim and quoted appellant as having said, “It’s my father-in-law. Leave him alone. We’re just going to get the girls. They’re in the bathroom. Once they come out, we’re going to leave.”
Based on the father-in-law’s testimony, the trial court admitted Appellant’s prior criminal record under section 90.806(1), Florida Statutes. The statute reads:
When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant’s hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it.
When applying this hearsay rule, the First District Court of appeal previously explained that “[t]he State can use a defendant’s prior convictions to impeach exculpatory hearsay statements of a defendant who does not testify but gets the statements into evidence through another witness.” Freeman v. State, 74 So. 3d 123, 125 (Fla. 1st DCA 2011).
Applying this hearsay rule to the record of Appellant’s trial, the Second District held that it was an abuse of discretion to allow the admission of Appellant’s prior criminal record because the father-in-law’s testimony was not hearsay, rendering the hearsay rule inapplicable. Appellant’s out-of-court statement, as recounted by his father-in-law at trial, was not offered to prove the truth of the matters asserted, but to support the defense theory that appellant was trying to defuse the situation. Having determined that the evidence of Appellant’s prior convictions was admitted improperly, the Second District applied the harmless error test to determine whether reversal was necessary. Because credibility was at issue based on the defense presented at trial, the Second District determined that the error required reversal and remanded the case for a new trial.
Hamilton v. Citizens Prop. Ins. Corp., 390 So. 3d 700 (Fla. 3d DCA 2024) — Waiver of Privilege
The Third District Court of Appeal found that an insurance company waived its right to designate as privileged certain documents its corporate representative relied on to refresh his recollection during deposition.
The Petitioner sought certiorari review of the trial court’s order granting Respondent’s motion for protective order which authorized the insurance company’s corporate representative to bring his claims file to deposition for the purpose of refreshing his recollection. The order also allowed the insurance company to designate the file’s contents as privileged, including the portions of the file relied on by the corporate representative during his deposition testimony.
In granting the petition and quashing the trial court’s order, the Third District cited to section 90.613, Florida Statutes, that states, in pertinent part:
When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence.
The Third District reasoned that it was necessary to quash the protective order as there would be no practical way to determine to what extent the withheld document “impeded the effectiveness” of the petitioner’s cross-examination of the corporate representative once a judgment was entered.
Perez v. State, 393 So. 3d 714 (Fla. 4th DCA 2024) — Restitution
This case arises out of a restitution order from a sentence for driving under the influence causing property damage to the sheriff’s office vehicle. The trial court ordered $3,416.36 in restitution to pay for the repairs to the vehicle. The Defendant objected to this ruling on the grounds that the state failed to present evidence that the subject vehicle was the same vehicle in the accident that involved the Defendant.
The Defendant argued on appeal that the trial court erred in granting the restitution order because the state failed to satisfy their burden of proof relating the subject vehicle back to the actions of the defendant. The State presented witness testimony, but failed to call any of the officers to the stand to testify that the vehicle damaged in the incident involving the defendant was the vehicle in question. Of note, the trial court at no point during the hearing announced that it was “taking notice of its own file” or what its legal basis would have been for doing so, nor had the State requested such action or presented the legal basis for doing so.
On appeal, the State argued that the trial court could take judicial notice of the accident report, but that was not done.
As a result, the Fourth District Court of Appeal reversed and vacated the trial court’s restitution order due to lack of evidence presented at the trial court.
State v. Riggleman, 397 So. 3d 1152 (Fla. 2dDCA 2024) — Williams Rule
The State sought certiorari review after a circuit court denied its request to introduce “Williams Rule” evidence of prior child molestation committed by the Defendant. The trial court ruled the prior abuse was irrelevant, citing differences between the two allegations and applying a relaxed standard for familial cases.
The Second District Court of Appeal found that the circuit court had erred by not properly applying the relevant statutory provisions, specifically sections 90.403 and 90.404(2)(b), Florida Statutes. These statutes allow evidence of prior crimes, wrongs, or acts of child molestation to be admitted if relevant, including to corroborate the victim’s testimony. The trial court failed to first assess whether the prior abuse was relevant under section 90.404(2)(b), Florida Statutes, instead focusing primarily on the similarities and differences between the acts. This constituted a departure from the essential requirements of the law.
The Second District also noted the trial court failed to properly balance the probative value of the prior molestation evidence against any potential unfair prejudice, as required by section 90.403, Florida Statutes. The court should have considered multiple factors including the similarity of the prior acts to the charged offense, the closeness in time, and the frequency of the acts, which were not addressed in the circuit court’s decision.
As a result, the appellate court granted the state’s petition, quashing the order denying the introduction of the prior molestation evidence and allowing it to be presented in the trial.
Sunbelt Rentals, Inc. v Burns, 402 So. 3d 1178 (Fla. 3d DCA 2025) — Daubert challenge
The Third District Court of Appeal held trial court did not abuse gatekeeping function required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) when it allowed medical and engineering expert witnesses in a product liability wrongful death case to opine as to source of carbon monoxide without performing any testing of the subject propane powered riding floor stripper or the space where the death occurred.
The estate of a deceased shop owner who died from carbon monoxide poisoning sued the equipment rental company under product liability theories regarding the danger of accumulated carbon monoxide emitted from the floor stripper while in use even in areas that were only partially enclosed. The estate presented at trial the testimony of a medical doctor and an engineer who both testified the likely source of carbon monoxide was the power stripper. Neither conducted any testing to quantify the amount of carbon monoxide emitted from the subject power stripper nor performed any investigation into the ventilation system, the circulation, or air exchange in the space where the equipment was used. The estate’s appeal after adverse jury verdict in estate’s favor focused on trial court’s admission of these experts’ opinions as to the source of the carbon monoxide poisoning it contended were not admissible under Daubert as they both failed to rule out other potential sources.
The Third District held that despite the absence of any testing, both experts “provided fact-based chain of reasoning” sufficient for the trial court to conclude their testimony was admissible under Daubert. The facts relied on by both experts included carbon monoxide warnings contained in equipment’s owner’s manual, the carbon monoxide poisoning symptoms experienced by a coworker, the level of carbon monoxide in the shop when decedent was discovered, and post-mortem carbon monoxide levels found in decedent’s blood.
A.K.P. v. Dep’t Child. & Fams., 393 So. 3d 718 (Fla. 4th DCA 2024) — Daubert
The Fourth District Court of Appeal confirmed the trial court’s responsibility to serve as a gatekeeper under Daubert and section 90.702, Florida Statutes, despite difficulty applying admissibility criteria to opinion testimony of psychologist or other mental health experts. The Fourth District determined that the trial court applied an incorrect version of section 63.082, Florida Statutes, and remanded the matter back to the trial court with instructions to apply the amended version of section 63.082.
In a placement proceeding for a minor child, the evidence was reopened after the statute was amended and the trial court applied previous version of the statute. As a new evidentiary hearing is required to determine the minor child’s best interests under the amended statute, the Fourth District took the opportunity to address an objection to the admissibility of opinion testimony from a psychologist about the impact of the minor child’s recent autism diagnosis on transition placement. The court cited the factual predicates necessary under Daubert for the admissibility of expert opinion testimony: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.
The Fourth District determined, based on the record on appeal, that the trial court erred in admitting opinion testimony of the psychologist because there was insufficient facts or data to support the psychologist’s opinion testimony. Specifically, the Fourth District concluded that the record did not support the trial court’s finding that neuropsychology was a part of the psychologist’s practice and that his work on two other court cases, in which children with autism were transitioned to new placements, was rejected as anecdotal and dissimilar to the conditions present in the instant placement determination.
The Fourth District determined that its decision to exclude the psychologist’s opinions was without prejudice to the submission of additional evidence to support the introduction of the psychologist’s opinions in any subsequent hearing.
