FLORIDA ESTATE LITIGATION: WHAT THE DEAD PERSON SAID: a recent Florida case about hearsay within hearsay
Florida probate litigators, and Florida trust trial lawyers know the importance of preparing for trial in Palm Beach, Florida to Miami-Dade County, Florida. Florida probate lawyers prepare documents to be introduced, assemble a witness list, and begin to create a laundry list of facts which they hope to get into evidence for a probate trial or a Florida inheritance lawsuit.
At a Florida probate trial, everybody seems to know that hearsay is inadmissible. In Florida, like most states, hearsay is considered an out-of-court statement which is offered at trial for its truthfulness: the fact that what was said actually occurred or happened. The Florida evidence code, which Florida probate litigators rely on, has exceptions to the Florida hearsay rule. But before you get to exceptions to the Florida hearsay rule, recognize that certain out-of-court statements may be admissible in a Florida probate court, not for the truth of what is said, or asserted, but for another reason. In other words, the statement is not hearsay under the Florida evidence code. So, for example, a deceased Florida citizen may have said something to somebody which may be relevant to the probate trial, and which demonstrates the deceased Florida resident’s state of mind. If, for example, a Florida beneficiary of an estate, or a family member, takes the stand in a Florida probate lawsuit and testifies that the deceased Florida resident said “I am going to the mall”, is this admissible in a Florida probate trial? This statement, if relevant, is probably not admissible for the fact that the deceased Florida resident actually, indeed, went to the mall. But it may be admissible for another limited, or narrow purpose: to demonstrate the Florida citizen’s state of mind, namely, that he or she was leaving somewhere, or was about to drive his or her car.
In probate trials, and Florida inheritance lawsuits, many times a deceased Florida resident’s state of mind, his mental state, her dementia, mental capacity, or ability to think or reason, and make decisions, are a central issue to a will lawsuit or trust dispute. Many times, medical records may be introduced into evidence, pursuant to the Florida evidence code”s exception to the hearsay rule. But caution: those medical records, while they may be admissible as an exception to the Florida hearsay rule, under the Florida business records exception to the hearsay rule, may contain, within the medical records, inadmissible hearsay statements.
Hearsay within hearsay is not admissible in Florida.
A very recent Florida estate case, brought by the personal representative of a dead Florida resident’s estate decided, literally, days ago, reminds us about Florida evidence, the hearsay rule, and “hearsay within hearsay.” It also reminds us that Florida court judgments and Florida court documents, even when filed with a Florida court, are not necessarily admissible. While a Florida probate court may take judicial notice of other Florida court filings, it cannot be used to prove the truth of what is asserted in the Florida court document, unless it falls within an exception to the hearsay rule. Or, the statement is not hearsay to begin with.
This is an important reminder, and in evidence refresher, for Florida lawyers who handle probate litigation and trust litigation. For a complete copy of this recent Florida appeals court opinion, please email Michelle@pankauskilawfirm.com.
Here’s what the Florida appeals court said about a lower court, the Florida trial court’s admission of court documents: “Although a trial court may take judicial notice of court records under section 90.202(6), the statute does not permit “the wholesale admission of all hearsay statements contained within those court records.” Stoll v. State, 762 So.2d 870, 876 (Fla.2000). “A court judgment is hearsay to the extent that it is offered to prove the truth of the matters asserted in the judgment.” BDO Seidman, LLP v. Banco Espirito Santo Int’l, 38 So.3d 874, 880 (Fla. 3d DCA 2010) (internal quotation marks omitted) (citations omitted). For the matters asserted in the court file-including a court’s judgment-to be admissible, there must be an applicable exception. Id. (citing Stoll, 762 So.2d at 876). Any third party’s statement needs an exception as well. Powell v. State, 908 So.2d 1185, 1187 (Fla. 2d DCA 2005) (“Statements that constitute hearsay within hearsay are inadmissible unless both statements conform to a hearsay exception.” (citing § 90.805, Fla. Stat. (2005); Smith v. State, 880 So.2d 730, 741 (Fla. 2d DCA 2004))).”