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Family Expert
Family Expert, Lawyer
Category: Family Law
Satisfied Customers: 1291
Experience:  25 Years
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rules of evidence

Customer Question

I have six day custody trial coming up. Plaintiffs major issue is that a year ago I was diagnosed with PTSD. Mental health records of pyschiatristinterviews were taken from my office without my permission. They plan to ask me questions on cross regarding information contained in those documents. Your expert, Michelle, told me in Jan that quiestions regarding illegally obtained evidence would be considered inadmissible. My attorney insists that the "fruit from the poisenous tree" law only applies to criminal law, not family law. I need documented clarification to use as reference/precedent if possioble. I asked for Michelle - obviously she is not available. Can anyone assist me?
Submitted: 6 years ago.
Category: Family Law
Expert:  rvlaw replied 6 years ago.

Hi,

I can only tell you after 30 + years as a trial attorney that your attorney is correct. In a criminal trial, any evidence that is obtained BY POLICE IN A WAY THAT VIOLATES YOUR FOURTH AMENDMENT RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES OR YOUR 5TH AMENDMENT RIGHTS AGAINST SELF INCRIMINATION...cannot be used as evidence in chief...ie on the prosecutor;s direct case. Statements that are suppressed as evidence in chief, however, could be used on cross if the defendant takes the stand in his defense.

In your case, there are no restrictions. You can be crossed on the records. Lets look at this. Arent you going to tell the truth on direct? Why should you be afraid of cross? Plus if your diagnosis is in issue, the plaintiff would have been entitled to get an authorization from you allowing him to see the records.

Rich

rvlaw, Attorney-Therapist Mediator
Category: Family Law
Satisfied Customers: 8386
Experience: Attorney-Therapist Mediator for CA Divorce Mediation Center; over 30 years private practice in NYC.
rvlaw and 2 other Family Law Specialists are ready to help you
Customer: replied 6 years ago.
Relist: I would like another opinion.answer was incomplete. I need to know if rules of evidence change with what court you are in? My response to answer I just got is that I am not obligated to make their case for them.If questions that they ask me are based on linformation that they gained by illegally obtaining my medical records, then the questions pertaining to that information are not admissible. Doesn't matter if the documents were taken by law enforcement or private individual. No - I am not afraid of any question, but I'm certainly not going to make their case for them by giving answers to questions that they have no right to ask??!
Expert:  rvlaw replied 6 years ago.

Please read this carefully. Let me give you an example. Let's suppose you are a witness to a car accident (civil case) or a robbery (criminal) and you give a statement in writing as to what you saw. Your statement is NOT admisible as evidence in chief because it is hearsay....an out of court statement being offered for its truth. Let's suppose, however, that you take the stand in either case, civil or criminal, to tell what you saw. If you say something different from your written statment, YOU CAN BE CROSS EXAMINED WITH THE STATEMENT. Your statment is not going into evidence...but it being used to contradict your live testimony..See the difference?

Now in your case....first of all you don't say how the records were "illegally obtained"...they were not ILLEGALLY OBTAINED by law enforcement so that already makes a difference. As I said, they would be dicoverable by the other side anyway. And they are not being used as evidence in chief as per the example above...just to cross..THE RECORDS ARE NOT MAKING THEIR CASE. THEY SHOULD ACTUALLY MAKE YOURS TO EXPLAIN THE CONDITION. Otherwise the condition goes unexplained with no record of your having addressed it.

YOU MAY CONTINUE TO RESIST THIS ANSWER BECAUSE YOU WANT ME TO GIVE YOU A DIFFERENT ONE, BUT IT IS THE LAW, AND I WON'T AS AN ATTORNEY GIVE ANYONE AN ANSWER JUST BECAUSE IT'S WHAT THEY WANT TO HEAR. IT WOULD BE UNPROFESSIONAL TO DO SO.

Rich

 

Customer: replied 6 years ago.
I am not trying to rsist you nor look for an answer that I like. I need an answer that makes sense by logic. Documents were obtained when deceased wifes father ccame in with proffessional movers to move my belongings from my residence - but according to both lawyers agreement, was supposed to wait until deputy arrived (I was under restraining ordewr) so I could observe what was taken and what box it was put in. Deputy was late - moving van was loaded and left for storage area before I could observe. Big note left on my desk said not to touch my personal correspondance untillI had chance to move it myself. Smith, deceased wifes father, claims he took it because it was "in open sight" This is in their disclosure statement. Entire litigation began when I attempted to get her help through court system with her RX drug abuse. She took our son, ran home to millionaire daddy. At drug exam, basedon nothing but interview - no urine test, no hair follicle test and with supportiung false statements from father , she was found not dependant on anything. They went immediately from drug test to family court and filed false allegations against me and for divorce. She died as a result of drug abuse (methadone) before we could go to divorce court and counter/dispell all alllegations against me. Since she was living with father at time of death, they filed fpoe emergency order, and got it, to keep temp custody of my son( noe three years old) pending trial for full custody. Two weeks ago, at a pre trial hearing, judge told their lawyer to advise his clients tha "..if that's all you have you will lose..' trial sometime in jul - no date set yet. I'm trying to cover all the bases - I'm a retired USMC MSgt living on retirement and a VA disability award, up against a hbusband/wife team ( both are shrinks) with a 5 figure annual income and subsequently a team of high priced lawyers. I need all the legal advantage that I can get. I find it difficult to believe that I will be required to answer questions based on information that they would not have if they had not stolen my records. Please tell me - where amm I wrong??
Customer: replied 6 years ago.
just read your response again - this is follow up. I checked with the pyschiatris whose report they took. He informed me that if he were in private practice, he would have to honor subpoena and give them information. BUT - he is under contract to the VA -THe VA has policy NOT to be involved in family court cases and would not condone my records being gived for that purpose and it is a federal entity and does not have to respond to state family court subpoenas. All those records leading to my disability award belong to me and the VA - and would need consent of either of us to be made public. I'm not trying to be difficult here - I just need to understand...
Expert:  Family Expert replied 6 years ago.

I'm only jumping in because it said "second opinion" required. AS I understand this, you are involved in a "custody" hearing - that means a judge has to decide whether you get custody of a minor, right? The judge has the power to say no to you,or yes to you, right? So, what is the judge thinking? He's thinking is the child going to be safe with him - is giving the child to him in the "child's best best interest"? If you have a hisotry of mentalproblems or issues that evidence is relevant and the judge is going to want to know about it and consider it. It does not mean, automatically, that you lose.

Records stolen from you or obtained in vilation of your rights are not "automatically" going to be excluded by the judge in a "civil" case - so, turn your attention to winning the case "on the merits", so to speak. That means think, how can I convince the judge that the child should be with me, even though I have received this treatment from the V.A.?

What about asking the V.A. doc to take time off and come to court for you? What about asking the judge to appoint an independent physician to examine you (and the other side too) and make a report to the court on who is in the best mental health to care for this child?

Stay calm in this storm, and think about what you need to do to win!

All the best,

 

Family Expert, Lawyer
Category: Family Law
Satisfied Customers: 1291
Experience: 25 Years
Family Expert and 2 other Family Law Specialists are ready to help you
Customer: replied 6 years ago.
No history of mental illness. PTSD limited to bad dreams, flashbacks, sometimes inability to sleep. 'Nothing violent or can be4 considered harmful to minor child. Have statements and will have testimopny from director of Mental Health, US Naval Hosp, Beaufort and two Va pyschiatrist as well as my family doctor that my health should not nbe an issue.
    If I can get it established that a PTSD diagnosis , by itself, does not warrant a veteran to lose custody of his child, won't that make all the information contained in reports leading up to that diagnosis moot? My PTSD is result of 33 moths in combat zone and events that took place in that setting
Expert:  rvlaw replied 6 years ago.

Hope you are satisfied with the second opinion. Good luck

Rich

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