Recorded Statement Admitted In Custody Proceeding – Rule 403, Ala. R. Evid.


Cantrell v. Cantrell, [Ms. 2200590, May 6, 2022] __ So. 3d __ (Ala. Civ. App. 2022). In a per curiam opinion, the court (Moore, Edwards, and Fridy, JJ., concur in the result, without opinions; Thompson, P.J., concurs in part and dissents in part, with opinion, which Hanson, J., joins) affirms the Winston Circuit Court’s admission into evidence in a child custody case of the father’s video recorded statement with law enforcement officials. In the criminal case against the father on charges of rape and sodomy of a fifteen-year-old girl, the recorded statement was suppressed because of Miranda violations, and the criminal charges against the father were dismissed with prejudice. Ms. **15, 35.

The court first explains “the dismissal of the criminal charges was not based on a finding that the father was not guilty beyond a reasonable doubt of the alleged misconduct with a child and because the burden of proof in a civil action – a preponderance of the evidence – is less than the burden of proof in a criminal trial, the trial court did not exceed its discretion by admitting evidence regarding the criminal charges against the father and his alleged conduct underlying those charges.” Ms. *49. The court notes that “the father’s video-recorded statement ... constituted a declaration against interest ... and the fact that the court had suppressed the statement in the criminal proceeding did not impact its admissibility in this action.” Ms. *54.

Finally, the court rejects the father’s argument and relying on Rule 403, Ala. R. Evid., and explains

Evidence of the father’s alleged prior conduct did not influence the trier of fact to make its decision on an improper basis. The trial court was charged with determining the best interests of the child. The father’s argument that the criminal charges against him, which were based on conduct unrelated to the child, should not have been the basis of the trial court’s determination regarding the father’s visitation overlooks the fact that the character of the father and the influence that he has on the child are key factors in determining whether visitation is in the best interests of the child. Thus, the father’s prior conduct with regard to other children was relevant to that determination.

Ms. *57, citing Ex parte Vincent, 770 So. 2d 92 (Ala. 1999) for proposition that prejudice is “unfair” under Rule 403 if it has an undue tendency to suggest decision on an improper basis.

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