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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.
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.
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,
Hope you are satisfied with the second opinion. Good luck