Spontaneous Statements

It is a family law/divorce litigation firm that represents only men in the State of Florida.  When litigating, a firm really needs to be up to date on their knowledge of evidence.  There are so many little nuances in the law, which is why it is really important or at the very least wise to have an attorney if you are litigating anything of any value.  A spontaneous statement is a hearsay exception.  It is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when made under circumstances indicating a lack of trustworthiness.  Such statements can be offered in lieu of a child’s testimony where the child relays to a third person something that has just occurred that the child perceived or experienced.  An excited utterance is a hearsay exception as well. 

It is a statement or utterance relating to a startling event or condition, made while the declarant was under the stress of excitement caused by the event or condition.  It is available when someone frightened the child and child reports it to someone who can then relate it in Court.  There is also a hearsay exception regarding a statement of child victim of sexual or other abuse.  The Court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.  The child must have a physical, emotional, or developmental age of 11 or less.  Where it is obvious that the Order providing for the admission of the children’s hearsay statements fails to make the findings required by the Statute, reversal is required.  Florida Statutes provide that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the Defendant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding in a Deposition; or, consistent with the declarant’s testimony and is offered to rebut on expressed or implied charge against him of improper influence, motive, or recent fabrication; or, one of identification of a person made after perceiving the person. 

Regarding psychotherapist-patient privilege, a patient has privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of his mental or emotional condition, including alcoholism, and other drug addict, between himself and his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.  This privilege includes any diagnosis made and advice given by the psychotherapist in the course of that relationship.  Psychotherapist is defined by Statute as well as when a communication is confidential.  There is no privilege under that same section for things such as communications made in the course of a Court Ordered examination of the mental or emotional condition of the patient, etc.  A patient may waive his or her privilege and such a waiver may be limited to just the portions of the privileged communication relevant to a condition or issue put into controversy by the person asserting the privilege.  Remember, this is a blog.  This just barely touches the tip of the iceberg with regard to any and all evidence and exceptions and exclusions.  For more information, go to divorcementally.com and set up a consultation. 

The criteria for overcoming a privilege is while the mental health of a parent in a parental responsibility case is relevant, mere allegations that a parent is mentally unstable or not sufficient to place that parent’s mental health at issue and overcome the psychotherapist/patient privilege.  In a case, where the only allegations of mental unfitness relate to a period remote in time (i.e., five years prior to the date of trial), such staleness may make the information outdated and thus protected through the privilege.  Only the parties present abilities and conditions are relevant to the trial Court’s determination regarding children’s issues.  To discover these prior psychological records, the petitioning party has the burden to show that this historical psychological record would contribute to determination regarding the parties’ present ability and present psychological condition.  A party does not automatically put into issue his or her mental health so as to waive privilege seeking alimony. 

Basically, nobody understands hearsay.  But there are many exceptions to hearsay, such as records of regularly conducted business activities.  There’s a two-step process in order to have documents, writings, etc., which are otherwise hearsay, admitted into evidence.  The first step is to have the custodian of the records (or some other qualified person) testify that the records being introduced are normally kept, that they were made at or near the time of the occurrence or occasion, and that they are of the type of records regularly kept by the business keeping them. 

The second step is to show that the business record evidence is able to stand alone as opinion evidence.  That is, it must be admissible as an opinion as if the person writing the record were present in the courtroom and testifying.  It is the burden of the party challenging the business record to make a sufficient showing that the accuracy and reliability of the record is in doubt.  This is because the philosophy of admitting records is that they are inherently reliable and accurate.  Despite the business records exception to the hearsay rule, a record may be excluded as substantive proof if the opinions therein relate to the diagnosis of a complex medical condition difficult to determine or substantiate and the expert is unable for cross-examination. 

When a trial Judge erroneously sustains an objection, to preserve the point for Appeal, counsel must make an offer of proof of how the witness would have responded if allowed to answer the question.  Excluded documents and tangible items should be marked for identification and made part of the record on Appeal.  The trial court has discretion over the method used for proffering excluded evidence.  Usually the proffer consists of having the witness answer the question on the record out of the presence of a jury.  Evidence is a very tricky thing.  Many times in a family law court, evidence enforcement is kind of lax.  Nevertheless, one must be prepared for strict enforcement of all evidentiary rules and any sharing whatsoever. 

Our attorneys are litigators and fully trained and ready for anything that may come up.  Kenny Leigh and Associates specialize in divorce rights for men.  Nine offices across the entire State of Florida.  Please go to divorcemenonly.com for more information.

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