Presenting Evidence in Family Court, Part 1

Most people (even some lawyers) don’t expect the Evidence Code to apply in family law — in the same way that we see it used in Criminal or Civil Law. The fact is, that it most often does. Even when we are in front of a judge who has a more informal approach (allows evidence to be considered without meeting all of the legal criteria), general knowledge of the rules of evidence can really help you to gain a legal advantage in your divorce or other family law action. Why? Well, many judges will review evidence (such as out of court statements, school records, agreements, police reports, financial records, title to property, proof of payment, social media postings, photographs etc) without a proper ‘foundation’ unless the opposing litigant or lawyer makes a objection. If the objection is legal – it becomes the propounding party’s job to find an evidence ‘exception’ or explain to the court why the objection is not proper. If you can’t do this – the evidence comes in to play – whether you think it’s fair or not. Another reason to follow the evidence rules is to make a ‘clear record.’ In other words, it’s possible that your family law judge allows you to be a bit lax when it comes to the evidence code but an appellate judge certainly will not. If you do not ‘object’ to the introduction of evidence, improper conduct or illegal statements — you will lose the ability to challenge that behavior should your matter proceed to an appeal (an appeal is when someone applies to a higher court for a reversal of the decision made by the lower court).

We’ve highlighted a few evidence rules that everyone should know before they walk into the courtroom (even when you’re self represented):

1. social media: If you would like to utilize a statement that was made via ‘instant chat’ (such as yahoo messenger, email or FB messenger) make sure you save and print the entire relevant chat room thread. It may be potentially included as an exhibit to present to the court via a declaration or through your own testimony.

2. illegal eavesdropping: In Family Law, you may not submit unlawfully obtained recordings or wiretapping. This is considered an unlawful intrusion into privacy.

3. ‘relevant’ evidence: Evidence must be considered ‘relevant’ for the court to admit it over objection. Many litigants try to bring in evidence of their spouse’s affairs or other ‘bad’ behavior. However, unless it is relevant to prove or disprove a disputed fact – it can be excluded. Additionally, if the court finds that it’s probative value is outweighed by its possibility of ‘prejudice’, the court may exclude that too. For example, the court may exclude evidence of your ex’s drug or alcohol use if the only ‘issue’ at hand is division of property but may find it is helpful to a decision as to who is better equipped to have physical custody of the children. If the opposing party introduces evidences that you believe is not relevant, you should speak up! For example:

‘Objection: Relevance. Even if what she says is true, it has no bearing on the issue before the court.’

OR

‘Objection: Relevance. The testimony he is giving is centered around a fact that is not in dispute.’

4. writings: When we lawyers refer to ‘writings’, we are actually talking about a whole host of documentation – photographs, emails, letters, words, pictures etc. Documents such as these can be crucial to your family law case. Perhaps you have bank statements that prove you provided your spouse with financial assistance for a period of time s/he said they received no child or spousal support. Perhaps you have a photograph of your ex drinking and partying when they said they were sober or home with the kids. Maybe you have an email from your spouse clearly expressing the intent to end the relationship and live separately. All of these can be relevant to child custody, property division, date of separation or child/spousal support actions. Additionally, if you catch your ex in a lie under ‘the penalty of perjury’ it could certainly help your case that s/he is not telling the truth in other aspects of the case. In order to get these items into ‘evidence’ over objection, you must ‘authenticate’ the writing:

establish a chain of custody (in short, showing a record of all the people who maintained unbroken control over the evidence);

prove that your writing or video is a reasonable representation of what it is alleged to portray; (does it show what you say it shows?)

prove that your writing or video will assist the court determine the truth or whether it will instead be misleading (does it help to establish a fact necessary to prove your case?).

If you are representing yourself and you would like to present a photograph into evidence, make sure that you state the following:
Whether or not you took the photograph
If you didn’t, who did? How do you know they took it? (e.g. I was standing next to my sister when she took the photo).
When was the photograph taken? How do you know?
Identify the people in the photo
State that it is an accurate picture of what it purports to show (e.g. Your husband snowboarding down a mountain when he said he was to ill to work).

5. Objecting to a ‘writing’: What happens if the opposing party introduces a writing (as described above) that you feel is prejudicial to your case? If you know the proper objection, you may be able to get it excluded from evidence (meaning, the judge will not consider it when s/he makes a decision). We’ve highlighted some objections below:

Not properly authenticated: Did your ex introduce an email without a date or the entire thread?

No personal knowledge: Is the opposing party testifying about an event that s/he wasn’t there to witness?

Hearsay: Written or verbal statements made by someone other than a witness testifying which are offered for the truth. (e.g. Her sister told me that she’s never home with the kids).

No chain of custody:

Ambiguous or misleading: If you’re asked a question about a document or video that doesn’t make sense to you or is designed to illicit a response that doesn’t illustrate the truth, you may have an objection.

Irrelevant: see above. The writing must be ‘relevant’ to the issue in controversy and cannot be unduly prejudicial.

Privileged: There are several ‘privileges’ that you as litigants have. The trouble is, if you don’t ‘object’ right away, you could waive the privilege (and the document itself (and testimony, along with other ones may be admitted in court. So, for example, if a document is presented that was between you and your lawyer, you will want to object as ‘attorney/ client privileged.’ You may also object if a medical record between you and your doctor is improperly presented to the court.

Evidence is tricky – even for experienced attorneys. Fortunately, it is not ‘rocket science’ and can be learned. A good attorney will alert you to some of the issues you may face in court with the presenting the evidence that supports your case and strategize other ways to prove your points or overcome objections. If hiring an attorney to represent you in court is not in your budget, you may want to hiring a legal coach or consultant to help you navigate at least some of the evidence basics so you can do your best to get your most important evidence before your judge.