Posted by Nydia Streets of Streets Law in Florida Domestic Violence

What evidence is admissible in a Florida domestic violence case? Whether or not evidence is admissible depends on a variety of factors, including the type of evidence and the ability to authenticate evidence. This was an issue in the case Payne v. Koch, 5D21-2420 (Fla. 5th DCA January 28, 2021) in which a domestic violence injunction was sought by a father individually and on behalf of his child against the child’s mother.

At the hearing on the father’s petition for injunction against domestic violence, he sought to introduce into evidence police bodycam footage which he purported would support his version of events. His claims concerned an altercation that allegedly occurred between him and the mother of his child. The mother objected to the evidence on the basis that she had not received it prior to the hearing. The father filed an affidavit indicating he mailed the video to her two days before the hearing. The trial court sustained the mother’s objection, holding it was possible the mother had not received the video prior to the hearing. The father’s petition was ultimately dismissed and he appealed, arguing it was error to exclude the video.

The appellate court agreed with the father, holding “[The mother] did not argue that she would be prejudiced by the admission of the video, nor did the trial court make any such finding. See Montero v. Corzo, 320 So. 3d 976, 980 (Fla. 3d DCA 2021) (noting that ‘in exercising its discretion in determining whether to permit [] untimely disclosed [evidence], the trial court should be guided largely by whether the [evidence] will prejudice the objecting party’ (footnote omitted).” (internal citations omitted). The court concluded: “The trial court’s decision to exclude the video, which presumably would have been the strongest evidence to help determine the necessity of an injunction, left the court to decide the case based solely upon ‘he said/she said’ testimony. While that is what trial courts routinely do in ruling on domestic violence injunctions, it was likely avoidable in this case. Absent an established claim of prejudice, [the mother’s] objection should have been overruled and the evidence admitted. Accordingly, we reverse and remand to the trial court for a new hearing.”

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