4.1 Relevancy, Character Evidence, and Privileges

The Florida Evidence Code (Chapter 90, Florida Statutes) governs the admissibility of evidence in all Florida court proceedings. While modeled after the Federal Rules of Evidence (FRE), the Florida Code features distinct state-specific rules. Mastery of these distinctions—especially regarding relevance, character evidence, the Williams Rule, and privileges—is critical for the Florida Bar Exam.

Relevancy and the § 90.403 Balancing Test

Under Florida Statute § 90.401, evidence is relevant if it has any tendency to prove or disprove a material fact. All relevant evidence is admissible unless excluded by constitutional law, statute, or other evidentiary rules (§ 90.402).

Legal relevancy is governed by § 90.403, which requires the trial judge to weigh the probative value of relevant evidence against its potential counter-weights. Specifically, relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

Unlike Federal Rule of Evidence (FRE) 403, Florida's statute does not explicitly list "waste of time" or "undue delay" as independent grounds for exclusion, though "needless presentation of cumulative evidence" is included. Florida courts start with a strong presumption in favor of admissibility; the burden is on the objecting party to show that the probative value is substantially outweighed by one of the § 90.403 factors.

Character Evidence: Reputation vs. Opinion

Character evidence refers to evidence of a person's general personality traits or disposition (e.g., honesty, peacefulness, violence) offered to show that the person acted in conformity with that character on a particular occasion. Generally, character evidence is inadmissible for this propensity purpose. However, critical exceptions apply in criminal cases, and Florida's rules differ significantly from federal practice.

The Criminal Defendant's Character

Under § 90.404(1)(a), a criminal defendant may initiate the introduction of evidence of their own good character to show that they are unlikely to have committed the charged crime. The primary Florida distinction lies in the permitted form of the testimony:

• Reputation Only: In Florida, character must be proved solely by reputation testimony. The witness must testify to the defendant's reputation in the community.
• No Opinion Testimony: Unlike the FRE, which permits a character witness to give their personal opinion of the defendant, Florida strictly prohibits opinion testimony to prove character.
• Prosecution Rebuttal: Once the defendant "opens the door" by introducing good character evidence, the prosecution may rebut only with reputation evidence of the defendant's bad character. The prosecution cannot use specific instances of conduct to prove bad character on rebuttal. However, on cross-examination of the defendant's character witness, the prosecution may ask if the witness has "heard of" specific acts of the defendant to test the witness's knowledge of the defendant's reputation (but cannot introduce extrinsic evidence of those acts).

The Victim's Character

A defendant may offer character evidence of the victim if relevant to a defense, such as a victim's violent reputation to support a self-defense claim. In Florida, this must be proved by reputation evidence only. If the defendant introduces reputation evidence of the victim's bad character, the prosecution may respond by offering reputation evidence of the victim's peaceful character, or reputation evidence of the defendant's bad character for the same trait.

Similar Fact Evidence: The Williams Rule (§ 90.404(2))

One of the most heavily tested areas of Florida evidence is similar fact evidence, commonly referred to as the Williams Rule (derived from Williams v. State, 110 So. 2d 654 (Fla. 1959) and codified in § 90.404(2)).

Williams Rule evidence involves other crimes, wrongs, or acts committed by a party. It is admissible when relevant to prove a material fact in issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Crucially, Williams Rule evidence is inadmissible if it is relevant solely to prove bad character or propensity. The sole test is whether the prior act is relevant to a material fact in issue, other than propensity.

Procedural Safeguards

Florida imposes strict procedural requirements on the use of Williams Rule evidence in criminal prosecutions:

1. Notice Requirement: The state must provide the defendant with written notice of its intent to offer Williams Rule evidence at least 10 days before trial. The notice must describe the prior acts with particularity.
2. Burden of Proof: Before the evidence is admitted, the trial judge must conduct a hearing (outside the presence of the jury) and find by clear and convincing evidence that the defendant committed the prior act. This is a higher standard than the federal rules, which only require sufficient evidence for a jury to find the act occurred.
3. Limiting Instruction: If requested, the trial court must instruct the jury on the limited purpose of the evidence both when it is admitted and in final jury instructions.

Evidentiary Privileges: A Statutory System

Under § 90.501, privileges in Florida are strictly statutory. Florida courts cannot recognize common-law privileges or create new ones through judicial decision-making.

Spousal/Marital Privileges

Florida recognizes the Husband-Wife Privilege (Confidential Communications) under § 90.504, but does not recognize spousal immunity:

• Confidential Communications: A spouse has a privilege to refuse to disclose, and to prevent another from disclosing, communications which were intended to be confidential and were made between the spouses during the marriage. Both spouses hold the privilege, and either can assert it. The privilege survives the marriage (e.g., divorce does not end the privilege for communications made during the marriage).
• No Spousal Immunity: Under federal law, a spouse can refuse to testify against their spouse in a criminal trial. Florida does not recognize this. In Florida, a spouse can be compelled to take the stand and testify against their spouse in any proceeding, although they can still refuse to disclose confidential marital communications.
• Exceptions: The privilege does not apply in: (1) proceedings brought by one spouse against the other (e.g., divorce), or (2) criminal proceedings where one spouse is charged with a crime against the person or property of the other spouse or a child of either.

Attorney-Client Privilege

Codified in § 90.502, this privilege protects confidential communications between a client and an attorney made for the purpose of facilitating the rendition of legal services. The client holds the privilege. Exceptions include: (1) services sought to enable or plan a crime or fraud, (2) communications relevant to a breach of duty by the lawyer or client, and (3) joint clients where the communication is offered in a subsequent action between them.

Psychotherapist-Patient vs. Physician-Patient Privilege

• Psychotherapist-Patient Privilege (§ 90.503): Florida recognizes a privilege for confidential communications between a patient and a psychotherapist (including psychiatrists, clinical psychologists, and licensed clinical social workers) made for the purpose of diagnosis or treatment of a mental or emotional condition.
• No Physician-Patient Privilege: Florida does NOT recognize a general physician-patient privilege. A doctor can be compelled to testify regarding statements made by a patient during treatment. (However, patient medical records are protected from discovery by statutory confidentiality rules and the Florida constitutional right to privacy, requiring a showing of relevance and a court order or subpoena with notice).

Accident Report Privilege (§ 316.066(4))

Under Florida Statute § 316.066(4), any written report of a motor vehicle accident made by a person involved is confidential and inadmissible in any civil or criminal trial arising out of the accident. This privilege applies to statements made by drivers, owners, or witnesses to the investigating officer for the purpose of completing the report. However, physical evidence, such as breath, blood, or urine test results, is not protected by this privilege and is admissible.