Admissibility of Military Record

Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla. Stat. (2009)
(emphasis added). Any party, including the party calling the witness, may attack the credibility of a
witness by ... [p]roof by other witnesses that material facts are not as testified to by the witness being
impeached. § 90.608(5), Fla. Stat. (2009). In determining if the issue is collateral so that collateral
impeachment by extrinsic evidence is disallowed, the question to be posed is whether the impeaching
evidence would be admissible for any purpose other than contradiction. Correia v. State, 654 So.2d 952,
954 (Fla. 4th DCA 1995). Two types of evidence pass this test: 1) evidence which is relevant to
independently prove a material fact or issue; and 2) evidence which would discredit a witness by
pointing out the witness's bias, corruption or lack of competency. Id. (citing Dempsey, 589 So.2d at 377).
It is well-established that if a party cross-examines a witness concerning a collateral matter, the cross-
examiner must ‘take’ the answer, is bound by it, and may not subsequently impeach the witness by
introducing extrinsic evidence to contradict the witness on that point. Id. at 955 (citing Caruso v. State,
645 So.2d 389 (Fla.1994)). However, “[i]n Florida, an exception to the so called collateral-matter rule
exists where the collateral extrinsic evidence sought to be introduced concerns matters testified to by
the witness on direct examination” because the witness is said to have opened the door. Mills v. State,
681 So.2d 878, 880 (Fla. 3d DCA 1996) (citing Segarra v. Mellerson, 675 So.2d 980, 983 (Fla. 3d DCA
1996)).

Wilson v. State, 72 So. 3d 331, 334 (Fla. Dist. Ct. App. 2011)

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The ability to expose an improper impetus for a witness' testimony is an essential component of the
right to a jury trial. Love v. State, 971 So.2d 280, 285 (Fla. 4th DCA 2008) (quoting Jones v. State, 678
So.2d 890, 892 (Fla. 4th DCA 1996)). In Love, the court noted the defendant's right to confront adverse
witnesses, and that “the Sixth Amendment narrows a trial court's discretion to exclude evidence of a
witness' bias under section 90.403. Id. at 285–86. [W]hen cross-examination alone is not sufficient to
expose the possibility of improper motives in a witness, a defendant may present other impeachment
testimony to demonstrate bias. Hair v. State, 428 So.2d 760, 762 (Fla. 3d DCA 1983). Extrinsic evidence is
admissible for collateral impeachment as evidence which would discredit a witness by pointing out the
witness's bias, corruption or lack of competency. *954 Correia v. State, 654 So.2d 952, 954 (Fla. 4th DCA
1995) (citing Dempsey v. Shell Oil Co., 589 So.2d 373, 377 (Fla. 4th DCA 1991)).

Mardis v. State, 122 So. 3d 950, 953–54 (Fla. Dist. Ct. App. 2013)

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Admissibility of prior bad acts

It is fundamental that the defendant had the right on cross-examination to attack Delgado's credibility.
Lewis v. State, 335 So.2d 336, 339 (Fla. 2d DCA 1976). Defense counsel's obvious purpose in asking
questions regarding Delgado's alleged threats with a knife was to show Delgado's hostility, if any, toward
the defendant. Such bias was not brought out in any other testimony; therefore, the court's error in
restricting cross-examination on this point was not harmless.

Perez v. State, 453 So. 2d 173, 174 (Fla. Dist. Ct. App. 1984)

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Accordingly, even if prior bad acts do not bear a striking similarity to the charged offenses, the prior acts
are admissible if they are relevant to show motive and intent. See Nicholson, 10 So.3d at 145–46
(holding that, in the defendant's trial for the murder of his ex-wife, evidence of the defendant's prior bad
acts committed against victim were admissible to show the defendant's motive and intent even though
they were not sufficiently similar to the charged offense to warrant introduction for purposes of
identity); State v. Wright, 74 So.3d 503, 505–06 (Fla. 2d DCA 2011) (holding that, in the prosecution of
the defendant for armed kidnapping of the victim, evidence of the defendant's *1247 prior acts of
domestic violence against the victim was relevant to the issues of motive and intent, and that the
probative value of the evidence outweighed the prejudicial effect).

6 However, where intent or motive is not a material fact at issue, the collateral crime evidence cannot be
admitted for the purpose of showing intent or motive. See Pratt v. State, 1 So.3d 1169 (Fla. 4th DCA
2009). In Pratt, this court held that in a prosecution for aggravated battery of the defendant's wife and
daughter, it was error to admit evidence of three prior beatings of the wife by defendant during the
preceding eighteen months. We explained:

In the circumstances of this case, these earlier incidents of violence do nothing more than demonstrate
his propensity for violence with his family members. Neither party did anything to make motive or intent
significant to any contested fact. No one suggested any factual issue as to a specific reason for battering
the two women. Nor did he claim that his actions were by mistake. Motive, intent and mistake were
simply not made pertinent issues in the trial.

Id. at 1170 (emphasis added); accord Herbert v. State, 526 So.2d 709 (Fla. 4th DCA 1988) (in prosecution
for aggravated child abuse, error to admit evidence of an earlier beating of the same child; there was no
dispute at trial as to the identity, motive, or knowledge of the defendant in beating her son with a belt,
and the only issue in dispute was whether or not the beating constituted a crime).

7 Here, unlike in a murder case such as Nicholson, motive and intent were not particularly pertinent
issues in the trial. As our supreme court has explained: “State of mind is not a material fact in a sexual
battery charge, nor is intent an issue.” Coler v. State, 418 So.2d 238, 239 (Fla.1982). Likewise, the Second
District has held that, in a prosecution against the defendant for sexual battery of his then spouse, it was
error to admit a prior incident in which the defendant slapped his spouse, “because the perpetrator's
state of mind is not an issue in a sexual battery case.” Hebel v. State, 765 So.2d 143, 145 (Fla. 2d DCA
2000).

8 In the case at bar, the earlier incident of domestic violence did nothing more than demonstrate
appellant's propensity for violence against his girlfriend. The primary contested fact in this case was
whether appellant's girlfriend consented to the sex; appellant's motive or intent was not significant to
any contested fact. See id. at 145. Even if the prior domestic violence incident had some marginal
relevance in showing why K.M. delayed reporting the alleged sexual battery, this relevance was
substantially outweighed by the danger of unfair prejudice. The prior bad act was unfairly prejudicial
because it was classic propensity evidence that showed appellant's bad character.

Harden v. State, 87 So. 3d 1243, 1246–47 (Fla. Dist. Ct. App. 2012)

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A defendant has a constitutional right to pursue a full cross-examination to expose a witness's bias or
improper motive in testifying against the defendant, even when the questioning goes outside the scope
of the prosecutor's direct examination.

Blue v. State, 8 So. 3d 454, 455 (Fla. Dist. Ct. App. 2009)

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To open the door to evidence of prior bad acts, the defense must first offer misleading testimony or
make a specific factual assertion which the state has the right to correct so that the jury will not be
misled. See Brown v. State, 579 So.2d 898 (Fla. 4th DCA 1991); Dodson v. State, 356 So.2d 878 (Fla. 3d
DCA 1978); Hernandez v. State, 569 So.2d 857 (Fla. 2d DCA 1990); Davis v. State, 216 So.2d 87 (Fla. 2d
DCA 1968); Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994); Fletcher v. *631 State, 619 So.2d 333 (Fla.
1st DCA 1993). The “opening the door” concept is based on considerations of fairness and the truth-
seeking function of a trial, where cross-examination reveals the whole story of a transaction only partly
explained in direct examination.

Bozeman v. State, 698 So. 2d 629, 630–31 (Fla. Dist. Ct. App. 1997)

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Section 90.404 provides in part:

90.404 Character evidence; when admissible.-

(2) OTHER CRIMES, WRONGS, OR ACTS.-

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material
fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad
character or propensity.

The supreme court has held that where a party is attempting to impeach a defense character witness,
examining that witness about a specific act of misconduct by the defendant that is known to the witness
is proper cross-examination and not a violation of the Williams rule. Gunsby v. State, 574 So.2d 1085
(Fla.), cert. denied, 502 U.S. 843, 112 S.Ct. 136, 116 L.Ed.2d 103 (1991). In addition, as the statute
provides, the State is not required to file a notice of intent to offer similar fact evidence where the
evidence is offered only to impeach. Carter v. State, 606 So.2d 675 (Fla. 4th DCA 1992). Finally, as section
90.608 provides, any party may impeach any witness by showing that the witness is biased.

Pompa v. State, 635 So. 2d 114, 116 (Fla. Dist. Ct. App. 1994)

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Section 90.610, Florida Statutes, provides that a party may attack the credibility of any witness through
the presentation of evidence establishing that a witness has been (1) convicted of a crime punishable in
excess of one year's imprisonment, or (2) convicted of a crime of dishonesty or false statement. Thus, as
a general rule, credibility may not be attacked by proof that a witness committed specific acts of
misconduct which did not end in a criminal conviction. See Jackson v. State, 545 So.2d 260, 264
(Fla.1989).

Roebuck v. State, 953 So. 2d 40, 42 (Fla. Dist. Ct. App. 2007)

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§ 610.8 Impeachment—Proof of acts of misconduct by the witness

As a general rule, credibility may not be attacked by proof that a witness has committed specific acts of
misconduct.1 Under section 90.610 only conduct which results in a criminal conviction is admissible to
prove bad character. Thus, a witness cannot be asked upon cross-examination whether charges are
pending against the witness,2 whether the witness's employer reprimanded the witness,3 whether the
witness received a dishonorable discharge,4 or whether the witness has filed other personal injury
lawsuits.5 A prior false allegation of a crime made by a witness is a prior act of misconduct which is
inadmissible to attack the credibility of the witness.6 When the conduct does not result in a criminal
conviction, it is not admissible to attack the credibility of the witness.
Despite the general prohibition against the introduction of specific acts of misconduct to directly
attack credibility, the conduct may be admissible to prove bias or interest7 or when the direct
examination has opened-the-door.

§ 610.8 Impeachment—Proof of acts of misconduct by the witness, 1 Fla. Prac., Evidence § 610.8 (2020
ed.)

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