Stephen G. Cobb - Florida Criminal Defense Lawyer

Hearsay Evidence And Similar Fact Evidence


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

You are watching Florida Criminal Law TV, I am your host Stephen G. Cobb.

Now, we have been going through different types of defenses and now we are going to talk about something that I am sure you are familiar with, and that is Williams Rule Evidence. Right about now, you are going, “What? What the heck is a William’s Rule?” Well, another way to describe it is similar fact evidence.

Now, there is a rule of law that basically says, “Under certain circumstances and with notice to the opposing party, you may be able to use similar fact evidence”. So, in sex offense cases, it is not uncommon for the prosecution to bring in similar fact evidence. We saw that in the Cosby trial, we have seen that in many high-profile sex offense trials where other people who were not part of the charging document, which in Florida is either an information of indictment or grand jury indictment, usually an information and they are allowed to testify because the facts they are alleging are so similar to the facts the prosecution is trying to prove.

You may be wondering at this point how does that play into the defense of my case or my family member’s case or the case of someone I love or care about? And the answer is, first of all, you can contest the William’s Rule if the prosecution is trying to use it. The facts are not similar enough is probably the most common defense. There are other things as well but what I want to focus on is the defense can use that too. For example, you might find a scenario where someone has a habit of making false allegations of sex offenses and has done so previously in the past. If they are similar enough and notice is provided to the prosecution, then – notice the “if”, “then”. A lot of law is “if/then if/then” – the judge may rule – notice I said “May”, not “Shall” because it is not required – that the defense can use this similar fact evidence. And this similar fact evidence may show a defense of fabrication.

Another defense that people often do not consider is hearsay. And the one thing I hear most of the time when I am asking a client to do a fact pattern report is, “Well, I did not include this or that because it is hearsay”, I am like, “No, include the hearsay”. Well, how would I include hearsay? And I go because of 90.803 and 90.804 and they are like, “What? What is that?” Well, Florida has two basic hearsay rules plus case law and the statutory rules are found in Florida’s statute 90.803, which means the person making the out-of-court statement is living and there are over 25 exceptions to the hearsay rules, so the basic rule is hearsay is admissible, sometimes it is not but here are 25 reasons why it is. And under 90.804, that is where a witness is unavailable. Perhaps the witness is a foreign national who has returned to their country but they made a recorded statement and there is no way to bring them back, and that is just an example.

Under certain circumstances, there are a list of examples in that statute, 90.804, that hearsay can come in. One of the most common forms of hearsay that comes in is what is known as Reputation in the Community. This is critical. And this is an example of one way, not the only way, to question a witness to see if their testimony is admissible because just because there is evidence does not mean it is admissible in the court of law. It has to follow a very strict set of rules and both sides fight over what is allowed and what is not. William’s Rule information being a classic example of what is fought over.

Reputation in the community hearsay is fought over so questions need to be asked such as, “Do you know so and so”, or, “Do you know of so and so”, “Do you know other people in the community? What community is that? How large is this community?” “Well, I knew all 300 people in my high school”, “Well, it is in the community of Palatka and Palatka is a very small town and everybody knows everybody”, or some other community like that, community of a large workplace, for example. The definition of community has really changed as times have changed, technology has changed, how people interact with other people is changed. But you have to establish the reputation in the community, not so and so lies to me but so and so has a reputation for being dishonest in the community. So, you ask of the witness if they know the person, know of the person, know other people in the community, a lot of questions about that. And then, what is their reputation?

Now, when it comes to crimes of violence, which is beyond the scope of the sex offense series, it is quite similar, did the defendant who is on trial or going to be on trial know that a particular person who ends up being the accuser, did they know that that person had a reputation for violence? So, reputation evidence, although it is hearsay, does come in. And both sides can use it. So, with the defense of a sexual battery case, traveling to meet a minor, child pornography, a number of different cases, these defenses will not apply at all, yet in different cases with the same charges because the facts are different, those defenses may apply and they may either damage or destroy the prosecution’s case.

If you have questions related to evidence, hearsay or even William’s Rule about a sex offense or any other kind of case, my name is Stephen G. Cobb. I have been practicing criminal law since 1990 and I will be happy to answer your questions.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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Stephen G. Cobb, Esq.

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