Attack outline
Evidence Essay Attack
Review the Evidence Essay Attack with ordered issue-spotting steps and Florida flags where relevant before you jump back into practice.
Ordered attack steps
- Does it make a fact more/less probable?
- Is the fact of consequence?
- Unfair prejudice substantially outweighs probative value?
- Criminal D can open door with pertinent trait
- Prosecution can rebut once door opened
- Prior bad acts: Not for propensity, OK for MIMIC (motive, intent, mistake, identity, common plan)
- Out-of-court statement?
- Offered for truth of matter asserted?
- If yes to both → Hearsay (check exceptions)
- Non-hearsay purposes: Effect on listener, verbal act, state of mind, impeachment
- Present sense impression (while perceiving)
- Excited utterance (under stress)
- State of mind (then-existing)
- Medical diagnosis
- Business records
- Dying declaration (FL: ALL criminal cases)
- Prior inconsistent under oath (FL: SUBSTANTIVE)
- NO spousal immunity in FL (but confidential marital communications ARE protected)
- Prior inconsistent under oath = SUBSTANTIVE evidence
- Dying declaration in ALL criminal cases
- Dead Man's Statute bars testimony vs estates
- Attorney-client
- Confidential marital communications (FL: NO spousal immunity)
- Physician-patient
- Psychotherapist
- Clergy
- Is document what it claims to be?
- Original required for contents of writing?