The reason that certain statements may not be introduced is because they constitute “hearsay” as defined in §90.801 of the Florida Evidence Code. As a general principle, a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted is considered Hearsay. When a statement is relayed by a third party as opposed to a witness in live testimony, the ability of the defendant to challenge the reliability and accuracy of the statement is compromised.
The hearsay rule can have a substantial impact on your Florida divorce because it may keep out important evidence, such as the following:
- Disclosures regarding diverting and hiding assets by a spouse
- Disparaging comments made by the other parent in front of the children
- Admissions by a parent about engaging in acts constituting lack of fitness
- Revelations about drug use or alcohol abuse
- Observations reported by a police officer in a law enforcement incident report
While these types of disclosures are certainly relevant to a Florida marital dissolution, they may be barred from being used in a divorce or child custody proceeding under the hearsay rule. However, there are a number of strategies that an experienced West Palm Beach marital dissolution attorney may use to present this evidence to a family law court. A subpoena may be used to compel the person to testify in court. The rules of evidence favor testimony in open court, which allows for cross-examination to determine the reliability of the information and credibility of the witness.
There also are situations where statements that are essentially hearsay may be admissible in court because there are many hearsay exceptions. A hearsay exception generally is based on the justification that there are independent factors that make the statement reliable even though the person making the statement is not present in court and subject to cross-examination and observation by the judge or jury. Some of the most important exceptions to the hearsay rule in Florida divorce cases include:
Admission by a Party: When your spouse or the other parent in a divorce or custody case makes a statement that is adverse to the party’s interest, this statement may be admissible even though it is hearsay. The theory behind the exception is that people do not usually make statements adverse to their interest. An example might include a statement made by the other parent to you that the parent will do anything possible to ensure you are never allowed access to your child.
Statements against Interest: This is like an admission but made by someone who is not a party to the West Palm Beach family law case. The fact that the statement is so adverse to the interest of the speaker provides evidence of reliability.
Business Records: This can be a critical hearsay exception in a Florida family law case. Business records are admissible if the records custodian or other witness who is qualified to establish through his or her testimony that the record was made at or near the time of the event recorded; by or from information transmitted by a person with knowledge; kept in the course of regularly conducted business activity; and that it was regular practice of that business to make such a record.
While this is not a comprehensive list of all hearsay exceptions under Florida law, it provides a sense of the type of independent indicia of reliability that is necessary to introduce hearsay evidence in a Florida family law case. The hearsay rule may appear to be a rule that prohibits evidence and makes it more difficult to present evidence. If the hearsay rule is used properly, it will enable your attorney to introduce crucial evidence to advance your position or shield you from having opposing counsel introduce unreliable statements that will taint trier of fact. However, it is important to note that the hearsay rule, including its exceptions, cuts both ways. The hearsay rule is particularly important in family law cases that tend to be filled with “he said” and “she said” allegations. Even if the a statement is not hearsay or falls under one of the exceptions to the hearsay rule, the evidence still has to be relevant to the issue at hand.