Florida Bar Exam Study Outline: Florida Distinctions in Evidence and Crim Pro

Florida’s bar exam stands out because it expects you to actually know Florida law, not just the federal version you learned in law school. And nowhere is that more obvious than in Evidence, Criminal Procedure, and Constitutional Law — three subjects where Florida often chooses a different rule, a different standard, or a completely different approach.

If you’ve ever read a Florida outline and thought, “Wait… that’s not how this works under the federal rules,” you’re right. These subjects consistently test the exact points where Florida diverges.

To make those distinctions easier to learn — and remember — we’re using a Q&A format, the same method we use in all Ameribrights materials. It forces active reading, slows you down just enough to process the rule, and helps it actually stick. If you find yourself pausing more than usual, that’s intentional. You’re learning the distinction instead of skimming past it.

Below, you’ll find the most-tested Florida distinctions in Evidence, Criminal Procedure, and Constitutional Law, each explained clearly and compared directly to federal law. The goal is simple: clean comparisons, high-yield rules, and a structure that helps you memorize faster and remember longer.

Evidence

What is the Williams Rule, and how does it differ from Federal Rule 404(b)?

Under Florida’s Williams Rule, the prosecution may introduce evidence of other crimes, wrongs, or acts to show motive, intent, preparation, plan, knowledge, identity, or absence of mistake (MIMIC). Additionally, Florida has two mandatory procedural protections:

Advance notice to the defendant, and
A pretrial hearing to determine admissibility.

At the pretrial hearing, the court must evaluate whether the evidence is relevant, necessary, and not unfairly prejudicial before it may be admitted.

Federal Rule 404(b) also allows MIMIC evidence, but the process is less rigid. The federal rules require notice, but a pretrial hearing is not mandatory. Whether to hold one is left to the judge’s discretion.

Bottom line: Florida’s Williams Rule is more procedurally detailed and restrictive. It requires both notice and a pretrial hearing, while the federal rule only requires notice and gives courts more flexibility.

Which privileges exist under Florida law that the Federal Rules do not recognize?

As a starting point, the law assumes that people must testify, answer questions, and produce documents in a legal proceeding. Unless a specific privilege applies, a person cannot refuse to be a witness, refuse to disclose information, refuse to produce documents or objects, or stop someone else from doing so. Privileges are the exceptions that allow certain communications to remain protected.

Florida recognizes several privileges that do not appear in the Federal Rules of Evidence. These are protections created under Florida law that expand which relationships are treated as confidential. For exam purposes, you need to know both the Florida-only privileges and the trick areas where students mistakenly assume a privilege exists but it doesn’t.

Florida-Specific Privileges

These are the core Florida-only privileges bar takers should know:

Journalist Privilege: Protects a journalist’s ability to withhold sources and information gathered during news gathering. Not recognized under the Federal Rules.
Accountant–Client Privilege: Florida recognizes an accountant–client privilege. The Federal Rules do not recognize this privilege.
Sexual Assault Counselor–Victim Privilege: Covers confidential communications with a sexual assault counselor. Not recognized in the Federal Rules.
Domestic Violence Advocate–Victim Privilege: Protects communication with certified domestic violence advocates. Not recognized under the Federal Rules.
Clergy (Priest–Penitent) Privilege: Florida expressly recognizes a privilege protecting confidential communications made to clergy for spiritual guidance.
Psychotherapist patient privilege: Florida recognizes a strong privilege protecting confidential communications between a patient and a licensed psychotherapist, including psychiatrists, psychologists, and licensed mental health counselors. This privilege applies to communications made for diagnosis or treatment and may be waived only by the patient.

These privileges are Florida-specific and regularly tested as state-level expansions.

Common Trick Areas

Physician–Patient Privilege: Florida does not recognize a general physician–patient privilege. This is a classic bar exam trap.
Broad counseling privileges outside specific statutes: Florida protects specific counselor–victim relationships (e.g., sexual assault counselors, domestic violence advocates), but does not recognize a general “counselor–patient” privilege.
Lawyer-Client Privilege: Attorney–client privilege exists in both Florida and federal courts. The difference is that Florida recognizes ACP by statute and case law. Federal courts recognize ACP through common law, not because the Federal Rules list it. Because ACP exists in both systems, it is not a Florida-only privilege. This is why it sometimes appears as a trick answer choice in questions asking: “Which privileges does Florida recognize that the Federal Rules do not?” ACP should never be selected as a Florida-only privilege.

Bottom Line: Florida recognizes several state-specific privileges that the Federal Rules do not list — including journalist, accountant–client, clergy, and certain victim-advocate privileges. These are Florida-only expansions.

At the same time, Florida does not recognize a general physician–patient privilege, which is a classic bar exam trap.

And finally, remember: Attorney–client privilege exists in both Florida and federal courts, so it is not a Florida-only privilege, even though it is not codified in the Federal Rules.

Knowing both what Florida adds and what Florida does not recognize is key for distinction questions. To learn about the other FL privileges, review 90.501 – 90.510.

How does Florida treat prior inconsistent statements for impeachment compared to the Federal Rules?

In Florida, a prior inconsistent statement can be used to impeach a witness, even if the statement was not made under oath. This includes informal statements — for example, something the witness said to a friend, family member, or anyone else outside a formal proceeding.

The Federal Rules also allow impeachment with any inconsistent statement, whether sworn or unsworn.The distinction appears when the party wants to use the prior inconsistent statement as substantive evidence (offered for its truth).

Federal Rule: A prior inconsistent statement can be substantive evidence if it was under oath at a prior trial, hearing, or deposition.

Florida Rule: Florida requires the statement to be under oath, given in a trial, hearing, deposition, or other formal proceeding, and the witness must have been subject to cross-examination at that time. Florida interprets these requirements more narrowly than federal courts.

Bottom Line: Both systems allow impeachment with any inconsistent statement, sworn or not. The real distinction is that Florida is stricter about when a prior inconsistent statement may also be used as substantive evidence, requiring: 1) a formal proceeding, 2) oath, and 3) opportunity for cross-examination.

Does Florida use Daubert or Frye for expert testimony, and how does its standard differ from federal courts?

Florida uses the Daubert standard. Since 2019, Daubert fully governs the admissibility of expert testimony in Florida, replacing the Frye standard.

Under Daubert, expert testimony must be reliable and relevant, and the court evaluates factors such as:

whether the methodology has been tested,
whether it has been peer-reviewed,
the known error rate, and
whether it is generally accepted in the scientific community.

So, Florida now applies the same Daubert standard used in federal courts. The factors and the gatekeeping role are aligned. The only difference is historical — Florida adopted Daubert later — but the current standards match.

Bottom line: Florida follows Daubert, not Frye, and its approach is the same as the federal Daubert analysis.I know some of you may be disappointed that there isn’t a Florida-specific distinction here, but I’m calling this out because I’ve seen this written incorrectly in a lot of notes and study materials online. If you want the full breakdown of Florida’s expert-testimony rules, we cover this in detail in our Florida Evidence Guide.

Criminal Procedure

How does Florida’s “founded suspicion” standard differ from the federal “reasonable suspicion” standard?

First thing – realize we are discussing stop and frisk.

Under the federal Terry standard, an officer may conduct a stop (an investigatory detention) if the officer has reasonable suspicion that:

criminal activity is afoot, and
the person stopped is involved.

“Reasonable suspicion” can be based on specific facts, combined with rational inferences. It is a low threshold.

Florida requires a founded suspicion, which is interpreted as slightly more specific and fact-supported than federal reasonable suspicion.

A founded suspicion must be:

based on specific, articulable facts,
supported by observed circumstances, not just a hunch, and
sufficient to justify a temporary investigatory stop under Florida’s stop statute (§ 901.151).

Florida case law (Popple v. State, 609 So.2d 619 (Fla. 4th DCA 1992) repeatedly states that a founded suspicion requires a stronger factual basis than a mere hunch and is applied somewhat more rigorously than the general federal reasonable-suspicion test.

Bottom Line: Florida’s “founded suspicion” standard is more fact-specific and slightly more demanding than the federal “reasonable suspicion” standard. Florida courts scrutinize whether the officer had clear, articulable facts supporting the stop, making the state’s requirement stricter in application than the federal Terry rule.

For a deeper breakdown of Florida’s criminal law and procedures, see our Florida Criminal Procedure Guide and Florida Criminal Law & Constitutional Criminal Procedure Guide.

Does Florida require an indictment for felony prosecution, or can the state proceed by information?

An indictment is a formal written accusation issued by a grand jury, charging a defendant with a specific crime. It states the essential facts constituting the offense.

Florida does not require an indictment for most felony prosecutions. The state may file charges by information, which is a charging document signed by the prosecutor. Under Art. I, § 15(a) of the Florida Constitution, a grand jury indictment is required only for capital crimes—offenses where the state seeks the death penalty.

By contrast, federal law requires indictment for all felonies unless the defendant waives it.

Bottom Line: Florida prosecutes almost all felonies by information, and only capital cases require a grand jury indictment. Federal law, on the other hand, requires indictment for all felony prosecutions unless waived.

How does Florida’s death penalty system differ from federal requirements?

Florida authorizes the death penalty for qualifying capital offenses, but a capital charge must be brought by grand jury indictment (Art. I, § 15(a)), Fla. Const. For sentencing, Florida now allows a death sentence when at least 8 of 12 jurors recommend death (2023 amendment to § 921.141, Fla. Stat.). If fewer than eight jurors vote for death, the defendant must receive a life sentence.

In federal court, the jury must be unanimous in finding aggravating factors and in deciding to impose the death penalty. Without unanimity, a federal death sentence cannot be imposed.

Bottom Line: Florida permits a death sentence when 8 of 12 jurors recommend it, while federal law requires a unanimous jury decision. Only capital cases require a grand jury indictment in Florida.

How does Florida’s speedy trial rule differ from the federal constitutional standard?

Florida’s speedy trial rule was significantly amended in 2025. Under the new rule (effective July 1, 2025), the speedy-trial clock begins when formal charges are filed, not at the time of arrest. After charges are filed, the state must bring the defendant to trial within:

90 days for misdemeanors, and
175 days for felonies.

(Fla. R. Crim. P. 3.191(b))

If the time period expires, the defendant may file a Notice of Expiration, triggering a mandatory 30-day recapture period during which the state must bring the defendant to trial. If the state still cannot proceed, the case must be dismissed without prejudice, unless the defendant’s constitutional speedy-trial rights were violated.
(Rule 3.191(p); SC2022-1123 (Fla. 2025).)

Florida also amended Rule 3.134, requiring the state to file formal charges within 60 days for defendants who are on pretrial release. If charges are not filed in time, the defendant must be released on their own recognizance unless the state shows good cause.

By contrast, under the federal Constitution, there is no fixed deadline. Federal courts apply the Barker v. Wingo balancing test, which considers:

length of delay,
reason for delay,
the defendant’s assertion of the right, and
prejudice to the defendant.

There is no automatic dismissal based on a calendar deadline under federal law.

Bottom Line: Florida now starts the speedy-trial clock at the filing of formal charges, uses strict 90- and 175-day deadlines, and provides a mandatory 30-day recapture window with dismissal without prejudice unless constitutional rights are violated. Federal law uses the flexible Barker balancing test, with no specific time limits and no automatic remedy.

Conclusion

Florida’s bar exam rewards precision. Knowing where Florida law diverges from the federal rules — especially in Evidence and Criminal Procedure — can make the difference between missing a point and earning it. Use these Q&As to reinforce the major distinctions, revisit them during your memorization phase, and return to them as you practice essays and MCQs. Clear rules, clean comparisons, and consistent review are what move you from understanding to mastery.

Florida Bar Exam Study Outline: Florida Distinctions in Evidence and Crim Pro

In this article

Evidence

What is the Williams Rule, and how does it differ from Federal Rule 404(b)?