Answer to What to do if you are being framed for domestic violence?

ANSWER TO: HOW TO PREVENT MY SPOUSE FROM FRAMING ME AS TO DOMESTIC VIOLENCE?

The case involving the woman falling off the porch and a neighbor misinterpreting the incident as “domestic violence” is a classic situation where a hearsay objection should be made. You, as the wrongly accused, would want to prevent the judge from relying on the out of court statements by the neighbor that were written in the police report. The statements of the neighbor which are written in the police report are hearsay. The police officer wrote what the neighbor told the police officer what had happened – but the neighbor was stating an opinion of what he thought had happened. He didn’t see the incident, but he reported it as though he had. The issue is that the police officer, himself, who is testifying in court, did not witness the incident. The hearsay rules prevent the injustice of you having the neighbor’s statements admitted against you when you do not have the neighbor in court for you to be able to question him about the truth of these statements. And, if the neighbor is present in court, then The Best Evidence Rule would apply: the neighbor’s direct testimony about what happened, not the police report, is the evidence that should be presented in court. But, don’t think that the judge will make the hearsay objections to the evidence. That is not his or her obligation. If you don’t make a timely objection, you can lose your right to object at a future time, or to file an appeal as to the error.

And, even though there are the protections of the hearsay rules, there are exceptions to the hearsay rules. Some exceptions are the admission of hearsay statements that are made against the self-interests of the speaker, are admissions by a party opponent, are an excited utterance or a statement made by someone who is about to die. The test for admissibility in these exceptional circumstances is how much the jury or judge (in a bench trial) can rely on the truthfulness of these types of out-of-court statements. Also, if the statements are not offered for the truth of what is stated in them but for another purpose, this can allow hearsay to come into evidence by being deemed not to be hearsay. However, once a written or verbal statement is admitted as non-hearsay, how do you keep the judge or the jury from not relying on all or part of the statement for the plain meaning (truth) in the statements?

A document alone, such as a letter, a sworn affidavit of a witness who is not at court, an appraisal on a home, a police report, medical records, can usually be kept out of evidence by a hearsay objection unless there is a reliable witness in court to testify about the authenticity of the document and the statements contained in it.

The trier of fact in a family law case is usually the judge assigned to the case. In a case with a jury trial, the jury listens to the evidence and decides the facts. The judge or the jury will apply the law to the facts and decide the issues, like whether one spouse committed domestic violence, or whether one spouse will pay alimony to the other and if so, how much alimony and for how long. Sometimes in a case, even when both parties have filed financial affidavits and have exchanged the financial documents required by the Florida Family Law Rules, the judge or jury still must determine what is the real monthly net income of the parties so the correct amount of child support or alimony (if any) will be ordered. A good lawyer must always be vigilant as to the reliability of evidence that is being presented when that evidence will work against the interests of his or her client. Unreliable evidence should be objected to with sustainable objections.

To convince the judge (or the jury) to decide the facts favorably for you, your attorney will present documents and witnesses’ testimony at court. Don’t be in court with documents and testimony of witnesses that will not be allowed into evidence. Your attorney should be very familiar with the Florida Rules of Evidence, if your case is in a State Court, and with the Federal Rules of Evidence if your case is in Federal Court. The success of your case will depend on (1) knowing how to get your evidence admitted and (2) making sustainable objections to the other side’s attempts to get documents and testimony into evidence that will work against you.

Be the best litigant that you can be, and remember, when you file your case, you are “in court.” Everything you do related to your case should strengthen your court case, even if you settle the issues without ever having to go to court. You will get a better settlement when: (1) your court documents cover all legal issues, (2) when your research in support of the issues is on point and current, and (3) when you have documents and witness testimony that will be admissible evidence.

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