Florida/Georgia Personal Injury & Workers Compensation

...esponse to facts disclosed to the expert at or before the trial. § 90.704, Fla.Stat. (1993). Section 90.702 requires that before an expert may testify in the form of an opinion, two preliminary factual determinations must be made by the court under section 90.105....

...A witness may be qualified as an expert by either knowledge, skill, experience, training, or education or any combination thereof. See id.; see also Fla. R. Civ. P. 1.390(a). Whether a witness is sufficiently qualified as an expert is a matter to be resolved by the trial court. See § 90.105(1), Fla....

...in this day and age of watching CSI." With regard to the admissibility of expert testimony, this Court has stated: Section 90.702 requires that before an expert may testify in the form of an opinion, two preliminary factual determinations must be made by the court under section 90.105....

...to the expert at or before the trial. § 90.704, Fla. Stat. (1999). Section 90.702, Florida Statutes (1999), requires that before an expert may testify in the form of an opinion, two preliminary factual determinations must be made by the court under section 90.105, Florida Statutes (1999)....

...Deason, 632 So.2d 1377, 1383 (Fla.1994) (citations omitted, emphasis added.) When a party opposes the attorney-client privilege through the assertion that the communications fell within the crime-fraud exception, the court must determine the issue in the first instance. See § 90.105(1), Fla....

...rial court applied the incorrect, and overly lenient, burden in determining the issue. The petitioners claim that Florida law clearly requires that a preponderance of the evidence test be applied to the determination of the existence of a privilege. Section 90.105(1) provides that it is the trial court which determines preliminary issues, including that of the existence of a privilege....

...171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), for its analysis of the burden of proof to establish a preliminary fact. Romani v. State, 528 So.2d 15, 20 (Fla. 3d DCA 1988). In Bourjaily, analyzing Federal Rule of Evidence 104(a) *1254 (on which our Rule 90.105(1) is patterned), Chief Justice Rehnquist, writing for the Court, acknowledged that while the rule placed determination of preliminary fact issues with the trial court, it did not specify the burden of proof which should be applied to such determinations....

...And, as is noted in Laser Industries, Ltd. v. Reliant Technologies., Inc., 167 F.R.D. 417, 436 (N.D.Cal.1996), none of the federal circuit cases discussing the problem of the burden of proof of the crime-fraud exception have discussed Rule 104(a), the federal counterpart of our Rule 90.105(1), in concluding that a prima facie evidence standard applies....

...The State then proffered the computer animation as a demonstrative exhibit to help Detective Babcock explain his opinion to the jury and also as substantive evidence. The trial court ruled the computer animation admissible as a demonstrative exhibit only. As a preliminary fact, pursuant to section 90.105, Florida Statutes (1995) (substantively identical to 1991 version), the trial court found that the original source data, the basis of the State's computer animation, was "reasonably trustworthy and reliable." Noting the issue to be one...

preponderance of the evidence standard.[10]See § 90.105(1), Fla. Stat. (1999) ("[T]he court shall determine

...The Federal Rules of Evidence became effective July 1, 1975, two years after the decision in Apollo. But the Apollo rule lives on in Florida. The Florida Evidence Code (Chapter 90, Florida Statutes, 1979) is similar to the Federal Rules of Evidence in many respects; Section 90.105 of the Code is a counterpart of Federal Rule of Evidence 104....

...Jano, 524 So.2d 660 (Fla.1988) (quoting 1 C. Ehrhardt, Florida Evidence § 802.2 at 473-74 (2d ed.1984)). The issue of whether the necessary state of mind exists in the person making such a remark is a question of fact for the court to determine preliminarily. Jano. See generally, § 90.105, Florida Statutes....

...We have a question of is it reasonable to observe the intersection, or are we looking always at the envelope of light. And I just think there are too many variables under these circumstances. Three sections of the Florida Evidence Code deal with the subject of the admissibility of opinion evidence given by an expert. Section 90.105 states that the trial court shall determine preliminary questions concerning the admissibility of evidence....

...State, 668 So.2d 954, 960 (Fla.1996); Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 55 (Fla. 4th DCA 1994). As the supreme court has explained: Section 90.702 requires that before an expert may testify in the form of an opinion, two preliminary factual determinations must be made by the court under section 90.105....

...[2] Here, the order granting a new trial was based on the trial court's finding that Findeisen's testimony was not relevant, and if relevant, was more prejudicial than probative. Preliminary questions concerning these findings require a resolution of issues that are both legal and factual in nature. See § 90.105, Fla....

...misrepresentation." Charles W. Ehrhardt, Florida Evidence § 803.2 (2003 ed.). Whether the necessary state of mind exists in the declarant to qualify the statement as an excited utterance is a preliminary fact for the court to determine pursuant to § 90.105, Florida Statutes, and the court's rulings are reviewed for an abuse of discretion....

...appellate court will not overturn that decision absent a clear abuse of discretion." The non-party witnesses, whose testimony the plaintiffs proposed to introduce, were growers who had brought Benlate claims against Du Pont in 1992. Consistent with section 90.105, Florida Statutes (2001), it was the plaintiffs' burden to prove outside of the jury's presence, substantial similarity between the claims and those in the non-parties' suit, so as to demonstrate that such notice was relevant....

...The fact that a call is placed on a 911 line does not, standing alone, qualify it for admission under section 90.803. State v. Skolar, 692 So.2d 309, 311 (Fla. 5th DCA 1997). Because of these three factual preconditions to the admission of an excited utterance, the procedures for preliminary questions outlined in section 90.105(1), Florida Statutes (2002), apply when a party seeks to introduce an excited utterance into evidence over the objection of the opposing party....

...outside the presence of the jury to consider the necessary evidence and make the findings of fact essential to determine whether the statement constitutes an admissible excited utterance. This is not a situation of conditional relevance governed by section 90.105(2), Florida Statutes (2002), in which the evidence can be admitted based on prima facie proof of the condition....

...e-fraud exception applies to *174 communications otherwise protected by attorney-client privilege); see also Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (holding Federal Rule of Evidence 104(a), upon which section 90.105(1) is modeled, requires trial judge considering admissibility of statement of coconspirator to first determine whether proponent of evidence has proved by preponderance of evidence that statement was made by coconspirator during course of and in furtherance of conspiracy)....

...State, 389 So.2d 642, 647-48 (Fla. 2d DCA 1980): The failure to give any instruction at all on the subject of conspiracy may not be prejudicial to a defendant, since it effectively eliminates one theory upon which a jury could find him guilty. (Citation omitted.) Second, section 90.105(1), Florida Statutes (1979), is patterned after Federal Rule of Evidence 104(a) and imposes the responsibility of determining preliminary questions as to the admissibility of evidence upon the trial judge....

...l crime. [3] Williams v. State, 110 So.2d 654 (Fla. 1959). [4] But cf. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), wherein the United States Supreme Court viewed the issue under Federal Rule 104(b) — similar to section 90.105, Florida Statutes — as not requiring the determination of the defendant's involvement in the other act or wrong by either a clear and convincing or preponderance of the evidence standard....

...FDA's continued approval of the Cu-7 in January 1982 had been obtained or retained through fraud; absent such a proffer, any evidence purporting to show that the Cu-7 was unsafe or improperly labeled would be inadmissible as a matter of law. Citing section 90.105(2), [2] Florida Statutes, Searle requested the trial court to exercise its discretion and require appellants to establish preliminarily that the FDA's approval was obtained by the fraudulent nondisclosure of material information by Searle to the FDA....

...Accordingly, we reverse the trial court's order and final judgment and remand the cause for further proceedings on appellants' claim. SMITH, C.J., and WENTWORTH, J., concur. NOTES [1] The "federal law and regulation" referenced by the trial court are 21 U.S.C. § 355 and 21 CFR § 310, et seq., respectively. [2] Section 90.105(2) provides: When the relevancy of evidence depends upon the existence of a preliminary fact, the court shall admit the proffered evidence when there is prima facie evidence sufficient to support a finding of the preliminary fact....

...irements of law. Whether to admit test results is not a question of which rule of criminal procedure applies, but a question of applying the correct rule of evidence. A court determines preliminary questions concerning the admissibility of evidence. § 90.105 Fla....

...He ruled out death by natural causes partly on the basis of the victim's age, health and medical history and partly on his autopsy findings. Thus, the medical examiner's conclusions in the instant case were most assuredly based partly on facts outside the ordinary experience of the jury and were, therefore, admissible under section 90.105, Florida Statutes (2003)....

...sent a clear showing of error. See Anderson v. State, *1149 863 So.2d 169, 179 (Fla.2003). Section 90.702, Florida Statutes, requires that before an expert may render an opinion, two preliminary factual determinations must be made by the court under section 90.105, Florida Statutes....

...First, the court must determine whether the subject matter will assist the trier of fact in understanding the evidence or in determining a fact in issue. Second, the court must determine whether the witness is adequately qualified to express an opinion on the matter. Id. Here, both requirements of section 90.105 were fully satisfied with respect to the testimony of the medical examiner....

...[2] Several decisions of the Court address perjury prior to enactment of the above statutes. See, e.g., Hirsch v. State, 279 So.2d 866 (Fla.1973); Wolfe v. State, 271 So.2d 132 (Fla.1972); Gordon v. State, 104 So.2d 524 (Fla.1958); Rader v. State, 52 So.2d 105 (Fla.1951). [3] See, e.g., § 90.105(1), Fla. Stat. (1993) ("[T]he court shall determine preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence."); § 90.105(3), Fla....

...ers of the conspiracy, and (3) the statements were made in the course and in furtherance of the conspiracy. 590 F.2d at 582. In Florida the fourth district in Saavedra v. State, 421 So.2d 725 (Fla. 4th DCA 1982), concluded that Florida Evidence Code section 90.105(1) [9] was patterned after Federal *20 Rule 104(a) and likewise imposed the same responsibility of determining preliminary questions of admissibility on the trial judge....

...eliminary determinations. [13] "As a practical matter, it would be impossible for a judge to follow all the rules of evidence in making preliminary determinations." 31 U.Miami L.Rev. 951, 954 (1977). The fourth district, in Saavedra, recognized that section 90.105(1) is patterned after Federal Evidence Rule 104(a)....

...1st DCA 1977); accord Sike v. Seaboard Coast Line R. Co. 429 So.2d 1216 (Fla. 1st DCA 1983); Dinter v. Brewer, 420 So.2d 932 (Fla. 3d DCA 1982). Having found no authority to the contrary, we find the commentators' arguments to be persuasive in construing section 90.105(1)....

...[8] Federal Evidence Rule 104(a) states: "(a) Preliminary questions concerning ... the admissibility of evidence shall be determined by the court... . In making its determination it is not bound by the rules of evidence except those with respect to privilege." [9] Section 90.105(1) provides in pertinent part that: "the court shall determine preliminary questions concerning ......

...The state then proffered the computer animation as a demonstrative exhibit to help Detective Babcock explain his opinion to the jury, and also as substantive evidence. The trial court ruled the computer animation admissible as a demonstrative exhibit only. As a preliminary fact, pursuant to section 90.105, Florida Statutes (1991), the trial court found that the original source data, the basis of the State's computer animation, was "reasonably trustworthy and reliable." Noting the issue to be one of first impression, the trial court dete...

...he defense argument that the questions were proper to establish the "motive" or "bias" of the victim. This ruling was correct, since the defense did not demonstrate a preliminary basis for the questions, even assuming that their form was proper. See § 90.105(1), Fla....

...or her statement in preventing the witness from attending or testifying.” § 90.804(1), Fla. Stat. (2002). Whether an illness or infirmity exists is a question of preliminary fact for the trial court, proven by a preponderance of the evidence. See § 90.105(1), Fla....

...lish a sentence enhancement, but to impeach Moncus's character. Whether or not the past convictions were in fact Moncus's was an issue of fact. Preliminary questions of fact concerning the admissibility of evidence are determined by the trial court. § 90.105(1), Fla....

procedures for preliminary questions outlined in section 90.105(1), Florida Statutes (2002), apply when a party

...The trial court did not admit into evidence the affidavit by the records custodian for the company conducting the analysis or the affidavit by the lab analyst performing the DNA analysis. The trial court must determine whether the predicates for admissibility have been met. § 90.105(1), Fla....

...sibility of the neutral evaluator’s recommendation within the confines of chapter 90, Florida Statutes (2010). For example, the circuit court must still determine preliminary questions concerning the admissibility of the recommendation pursuant to section 90.105, and the court may consider possible exclusion on the grounds of prejudice or confusion pursuant to section 90.403....

...We hold that appellant had a reasonable opportunity to investigate the authenticity and accuracy of the waiver note which eliminated the need for a final certification. Lastly, the trial court made a preliminary finding that the notes were authentic. See § 90.105(2), Fla....

...ued by the Department of Highway Safety and Motor Vehicles. In determining whether the hearsay exception of section 90.803(6)(a) applies, the trial court must make a preliminary factual determination of the admissibility of evidence pursuant *343 to section 90.105(1)....

...See, e.g., DeLong v. Williams, 232 So.2d 246 (Fla. 4th DCA 1970) (unauthenticated transcript of prior hearing not admissible). This preliminary requirement falls within the category of conditional relevancy and is governed by the procedure set forth in § 90.105(2) granting the court the power to admit evidence subject to the introduction of evidence sufficient to support a finding of relevancy....

...However, Boyce and Maza are not applicable here because ''[tjhere is no counterpart to rule 104(a) in the Florida Evidence Code.” Romani v. State, 542 So.2d 984, 986 (Fla.1989) (rejecting federal approach concerning what proof is required to establish a conspiracy where that approach relies on federal rule 104(a)). Section 90.105(1), Florida Statutes (2008), is similar to federal rule 104(a) but omits the one sentence that the court relies upon in Boyce . Section 90.105(1) provides that "[e]xcept as provided in subsection (2), the court shall determine preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.” Thus...

...5th DCA 2006) (applying section 90.804(1)(e) to decide whether a witness was "unavailable" for the purposes of the Confrontation Clause). Whether the state made a sufficient showing of B.D.'s unavailability to admit her former testimony is a preliminary question "concerning . . . the admissibility of evidence" under section 90.105(1), Florida Statutes (2006)....

...Whether this recording violates chapter 934 is not an issue that is resolved at a typical hearing on a motion to suppress under Fourth Amendment standards. In the trial court, the hearing was conducted like a hearing on a motion to suppress, but it was actually a preliminary hearing that should have been conducted under section 90.105, Florida Statutes (2011), to determine whether these recordings are statutorily inadmissible under section 934.06....

...employee made the statement while employed by that employer. Chaney, 605 So. 2d at 529. The sufficiency of a showing to admit evidence under a hearsay exception is a preliminary fact question concerning “the admissibility of evidence” under section 90.105(1), Florida Statutes (2020)....

PER CURIAM. Affirmed. Fred Howland, Inc. v. Morris, 143 Fla. 189 , 196 So. 472 (1940); § 90.105(1), Fla.Stat....

predicate findings before admitting the evidence. See § 90.105(1), Fla. Stat. (2013); Morrison v. State, 161

...Id. The factual determination of whether the impeachment witness is sufficiently familiar with the reputation of the witness is a preliminary question of fact to be determined by the trial judge based on a preponderance of the evidence, pursuant to section 90.105....

...e predicate.” Appellant’s interpretation finds some support in the language of the opinions. If this is what was intended in these decisions, the opinions offer no analysis or authority to support such a proposition, which is clearly contrary to section 90.105 and controlling precedent....

...ccident. We have not overlooked the fact that contrary inferences could also be drawn based on the evidence adduced below, but conclude that a jury issue was presented on this issue. See Schwartz v. M.J.M. Corp., 368 So.2d 91, 92 (Fla. 3d DCA 1979); § 90.105(2) law revision council note, Fla.Stat.Ann....

(“While the trial judge has the duty under section 90.105(1) to make a factual determination that the

PER CURIAM. AFFIRMED. “Whether the necessary state of mind exists in the declarant to qualify the statement as an excited utterance is a preliminary fact for the court to determine pursuant to Section 90.105, Florida Statutes, and the court’s rulings are reviewed for an abuse of discretion....