Similar fact evidence is offered in a lot of sex cases in Florida and, of course, is most times, horribly damning to our clients.
In Florida we have statutory, Fla. Stat. 90.404(2), and case law, Williams v. State, (Fla. 1959), that allows the state to introduce evidence of prior similar sexual wrongdoing (other crimes, wrongs or acts) in a new case involving sexual offenses. There need be no conviction. In fact, even if former charges are dismissed, the underlying facts may be admissible. Pomeranz v. State, 703 So. 2d 465, 469 (Fla. 1997).
The state must give the defense “notice” of the use of such crimes at least 10 days before trial. (Much like federal rule 404(b) evidence). If the evidence is admitted the Court, if requested, must instruct the jury on the limited purpose for which the evidence was received immediately prior to when the evidence is admitted at trial and provide a limiting instruction in it’s final instructions to the jury.
In Florida, we also have “reverse similar fact evidence where a defendant can offer evidence that another person committed the crime. State v. Savino, 567 So. 2d 892 (Fla. 1990). No notice requirement is required of the defense; however, because of our liberal discovery rules and procedural right to take discovery depositions in felony cases in Florida, the documents and/or names or witnesses intended to prove the “reverse similar fact evidence” must be disclosed to the prosecution. Depending on the facts of the case and how you strategical plan your defense, the prosecution may not learn of such defense prior to trial. However, the same admissibility standards apply to the defense’s introduction of this evidence as it does to the State so there must be a proffer to show similarity of the evidence and it’s relevancy. Because “reverse similar fact evidence” has a lower potential for prejudice to the State than standard similar fact evidence has to the defendant, the trial court has somewhat less discretion toe exclude reverse similar fact evidence offered by the defense. Palazzolo v. State, 754 So. 2d 731, 739-40 (Fla. 2d DCA 2000).
If objected to prior to trial by way of motion in limine or motion to exclude, a hearing must be held and the judge must not only find the similar fact evidence is relevant, he or she must also find its probative value is substantially outweighed by its unduly prejudicial nature. When the prejudicial nature of the evidence is outweighed by the undue prejudice the evidence creates, it is inadmissible. McLean v. State, 934 So. 2d 1248 (Fla. 2006). If the court finds that the evidence is relevant only to prove propensity or bad character it’s inadmissible. However, in Florida, the rule of admissibility of evidence of other crimes, wrongs or acts in a child molestation case have been “relaxed.” So, prior sexual acts of the defendant are admissible even though their sole purpose is to prove propensity to commit sex crimes – the rule of admissibility in a sex case becomes is the similar fact evidence to the matter for which it is being introduced? The amendment to the preexisting statute excluding prior act evidence if it only goes to show “propensity” has withstood constitutional challenge in a sex case.
The standard of proof for admissibility in Florida for “similar fact evidence” is by “clear and convincing evidence.” The similar fact evidence must be stated with the same specificity as that is required of the allegations in the indictment or information.
If the presentation of the similar fact evidence becomes the “feature” of the present trial, the evidence will also be inadmissible. Ashley v. State, 265 So. 2d 685,693(Fla. 1972). Sometimes the evidence in the present case is so weak that the similar fact evidence may become the “feature” of the case at trial, and, if so, it should be ruled inadmissible. Also, if the similar fact evidence confuses or misleads the jury, or is cumulative, it may be ruled inadmissible.
Similar fact evidence generally is an extremely difficult hurdle to overcome if it is not excluded. However, sometimes the similar fact evidence is so weak or incredulous that, if admitted, it creates the appearance that the State is willing to do anything to bolster a weak case that should not have been filed on in the first place. However, for the most part, every possible effort to keep the evidence from being admitted must be made.