Evidentiary Challenges in Divorce Cases: From Writings and Photos to Text Messages and Social Media

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Evidentiary Challenges in Divorce Cases: From Writings and Photos to Text Messages and Social Media Authenticating, Admitting and Objecting to Admission of Evidence and Testimony THURSDAY, OCTOBER 30, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Thomas J. Browning, Founder, Browning & Smith, Marietta, Ga. Austin R.C. Buerlein, Esq., Browning & Smith, Marietta, Ga. Cynthia L. Ciancio, Shareholder, Ciancio Ciancio Brown, Broomfield, Colo. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

2 Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial and enter your PIN when prompted. Otherwise, please send us a chat or sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

3 Continuing Education Credits FOR LIVE EVENT ONLY For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps: In the chat box, type (1) your company name and (2) the number of attendees at your location Click the SEND button beside the box If you have purchased Strafford CLE processing services, you must confirm your participation by completing and submitting an Official Record of Attendance (CLE Form). You may obtain your CLE form by going to the program page and selecting the appropriate form in the PROGRAM MATERIALS box at the top right corner. If you'd like to purchase CLE credit processing, it is available for a fee. For additional information about CLE credit processing, go to our website or call us at ext. 35.

4 Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

5 Evidentiary Challenges in Divorce Cases: From Writings and Photos to Text Messages and Social Media By Thomas J. Browning, Esq. And By Austin R.C. Buerlein, Esq. 31 Atlanta Street Marietta, Georgia

6 Cornerstone of all Evidence (1) Relevance (2) Reliability (3) Authenticity 6

7 Relevance FRE 401. Test for Relevant Evidence (Definition) : Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. FRE 402. General Admissibility of Relevant Evidence: Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury undue delay, wasting time, or needlessly presenting cumulative evidence. 7

8 Reliability Reliability refers to the trustworthiness of a record as a statement of fact. It exists when a record can stand for the fact it is about, and is established by examining the completeness of the record s form and the amount of control exercised on the process of its creation. Reliability concerns today, due to emergency of technology. All evidence must be authenticated. 8

9 Authenticity Authenticity refers to the trustworthiness of a record as a record. An authentic record is one that is what it purports to be and has not been tampered with or otherwise corrupted. Authenticity is established by assessing the identity and the integrity of the record. It must be possible to ascertain at all times what a record is, when it was created, by whom, what action or matter it participated in, and what its juridical/administrative, cultural, and documentary contexts were. 9

10 Authenticity A proponent must always properly authenticate (lay a foundation) that the item is what the proponent claims it is, as a condition precedent to admissibility. (see FRE 901 & 902). Two separate ways to Authenticate an Exhibit at trial: 1. Category 1: Self-Authenticating Evidence : FRE 902 lists twelve (12) specific types of evidence that are considered Self-Authenticating, and require no extrinsic evidence of authenticity in order to be admitted. Local rules and case law have expanded this list. 2. Category 2: Fact-Sensitive Analysis: If the evidence is not self-authenticating, then the proponent must demonstrate to the court that the item is what the proponent claims it is, under the facts and circumstances. FRE 901 provides a non-exclusive list of specific ways that a proponent may satisfy this accomplishment 10

11 Category 1: Self-Authenticating Evidence See FRE 902 (See complete statute attached behind Tab A; also, on next slide) Documents produced during discovery. See Willis v. Hill, 116 Ga.App. 848 (1967); Hussein v. University and Community College of Nevada, F.Supp.2d, 2007 WL (D.Nev.). See local statutes and case law for other examples. 11

12 Category 1: Self-Authenticating Evidence FRE Evidence That Is Self-Authenticating The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: (1) Domestic Public Documents That Are Sealed and Signed. A document that bears: (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and (B) a signature purporting to be an execution or attestation. (2) Domestic Public Documents That Are Not Sealed But Are Signed and Certified. A document that bears no seal if: (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and (B) another public officer who has a seal and official duties within that same entity certifies under seal or its equivalent that the signer has the official capacity and that the signature is genuine. (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document s authenticity and accuracy, the court may, for good cause, either: (A) order that it be treated as presumptively authentic without final certification; or (B) allow it to be evidenced by an attested summary with or without final certification. (4) Certified Copies of Public Records. A copy of an official record or a copy of a document that was recorded or filed in a public office as authorized by law if the copy is certified as correct by: (A) the custodian or another person authorized to make the certification; or (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court. (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority. (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical. (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control. (8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments. (9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law. (10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic. (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record and must make the record and certification available for inspection so that the party has a fair opportunity to challenge them. (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11). 12

13 Category 1: Self-Authenticating Evidence Most Commonly Relied Upon Types of Self-authenticating evidence in domestic cases: FRE 901(11) Certified Domestic Records of a Regularly Conducted Activity. (May potentially use for various documents received in third-party discovery, including Bank Statements; Credit Card Statements; Cell phone statements; etc.) Practice pointers: Whenever sending third-party discovery requests, make sure you always (1) include a proposed Affidavit for the custodian (containing the magic language ); (2) send a cover letter explaining the importance of the provider including the Affidavit with the materials; (3) remember to check when you receive responses to confirm Affidavit is included; (4) immediately notice OC of intent to use and offer for inspection. Train your paralegal/staff on this protocol as well. See Handout behind Tab C FRE 902(4) Certified Public Records. FRE 902(8) Acknowledged Documents (title records, etc.) Documents produced during discovery from OC. Practice pointers: Whenever you receive discovery responses from OC, create an inventory of the documents produced and send a letter to OC memorializing what was provided. Additionally, consider utilizing Requests for Admissions (having opposing party confirm authenticity of the potential exhibit), as well as pre-trial stipulations. If you cannot secure a pre-trial stipulation, then bring an Affidavit with you to Court verifying the Exhibit at issue was provided in discovery. (See Hussein v. University and Community College of Nevada, F.Supp.2d, 2007 WL (D.Nev.)). FRE 902 (6) - Newspapers and Periodicals (Wall Street Journal; local papers; etc.) 13

14 Category 2: Fact-Sensitive Analysis FRE Authenticating or Identifying Evidence (Also see print out of statute behind Tab B ) (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. b) Examples. The following are examples only not a complete list of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (2) Non-expert Opinion About Handwriting. A non-expert s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact. (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. (5) Opinion About a Voice. An opinion identifying a person s voice whether heard firsthand or through mechanical or electronic transmission or recording based on hearing the voice at any time under circumstances that connect it with the alleged speaker. (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. (7) Evidence About Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept. (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered. (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court. 14

15 *Cautionary Reminder: Make sure you timely and sufficiently object. Otherwise, the evidence shall be considered automatically admissible, and you waive the right to challenge same on appeal. See FRE 103, providing, A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.) *Practice Pointer: Make sure you take the time to adequately prepare your witness whenever possible, so that they can assist you properly authenticate any exhibits at trial. *Practice Pointer: See future slides regarding individual specific types of evidence. Also, see Analysis & Checklist (attached as Exhibit ). ** More specifics on HOW to properly authenticate certain specific types of evidence --- as well as examples of what the Courts have found are and are not sufficient under the fact-sensitive analysis --- to be discussed in other Sections in this Presentation. 15

16 Proper Procedures for Authenticating and Admitting The Most Common Types of Exhibits/Evidence used in a Divorce Case: (1) Writings (including Texts & s) Correspondence between parties Correspondence between counsel Correspondence with Paramour Diaries/Journals/Calendars (6) Certain Business Records (pertaining to a business owned by one of the parties subject to the case) (7) Printouts from certain Websites (2) Facebook and Social Media (8) Court records (4) Photographs (9) Tax Returns and Records (5) Certain Types of Personal Records: Bank Statements Credit Card Statements Retirement and Financial account statements Receipts Paystubs Loan applications/net Worth statements Summary of Employee Benefits (10) Trust instruments/family LTD Partnership 16

17 Writings Texts, s and Messages through Social Media (in general) Between Parties Between Counsel Diaries/Journals 17

18 Writings * Cautionary Reminder: Make sure you have the ENTIRE writing Rule Remainder of or Related Writings or Recorded Statements If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part or any other writing or recorded statement that in fairness ought to be considered at the same time. 18

19 Writings s, Texts, and messages through Social Media: Most common form of communication You must authenticate the same as other evidence Difference between these forms of communication and letters (subject to manipulation) Unless the sender admits to authentication on the witness stand, the most common method to authenticate is to argue the confirming circumstances corroborate the author s identify and authenticity. See the following cases, holding that electronic evidence can be authenticated through circumstantial evidence and extrinsic indicia, notwithstanding the purported author s denial the evidence was authentic: See Commonwealth v. Purdy, 2011 WL (Mass.; Apr. 15, 2011); U.S. v. Siddiqui, 235 F.3d 1318 (2000); Simmons v. Commonwealth, 2013 WL (Ky. Feb. 21, 2013); In the Interest of A.D.W., 821 N.W.2d 778, 2012 WL (Iowa App.); Tienda v. State, 358 S.W.3d 633, 638 (Tex.Crim.App.2012); Dockery v. Dockery, 2009 WL (Tenn.Ct.App.); Parker v. State, _A.3d._ 2014 WL ; U.S. v. Safavion, 435 F.Sup. 2d 36 (2006); Perfect 10, Inc. v. Cybernet Ventures, 213 F. Supp. 2d 1146; Massimon v. State, 144 S.W. 3d 210 (2004); In re F.P. 878, A. 2d. 93; Loraine v. Markel American Ins. Co, 241 F.R.D Compare Connecticut v. Eleck, 130 Conn.App. 632, 23 A.3d 818 (2011); In Interest of A.D.W.; etc. 19

20 Writings: Correspondence between Parties 20

21 Writings: Correspondence between Parties I m not paying sh*t this time.hope you die in a car wreck.so I hope when your father dies, I m gonna go to that funderal and piss on his f*cking grave in front of your whole god d*mn family.f*ck you and your family! 21

22 Writings: Correspondence between Parties Assume you have a TEXT message between parties that you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticated? Be prepared to argue it is reliable under fact-sensitive analysis and factors (3) Lay the foundation: 22

23 Writings: Correspondence between Parties Assume you have a message between parties that you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticated? Be prepared to argue it is reliable under fact-sensitive analysis and factors (3) Lay the Foundation: 23

24 Writings: Correspondence between Parties Assume you have a LETTER/CARD between parties that you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticated? Be prepared to argue it is reliable under fact-sensitive analysis and factors Personal knowledge; Handwriting/Signature of the Spouse Any postage or address on envelope (3) Lay the Foundation: 24

25 Writings: Correspondence between Parties Practice Pointers: (1) Ask opposing party to produce correspondence him/herself in discovery; and/or send an interrogatory asking him/her to identify all phone numbers and addresses, and whether any other persons have had access to such accounts during the applicable time period to his/her knowledge. (2) Make sure you have client provide you with ENTIRE exchange. Remember, if OC requests, you may be required to show the whole chain. Also, surrounding banter may help authenticate it. That said, you can have a screen shot.and try it but be prepared to use the whole string if necessary. (3) For texts, make sure it contains the date and time sent, if using a screenshot/print out (scroll left on iphones). Have them bring their phone, as well as have a folder set up ready to show it to the judge if she/he asks. Make sure you have prepped the witness if possible, so he/she can assist you authenticate it. 25

26 Writings: Correspondence between Counsel Issue: How to authenticate it? Stipulation with Opposing Counsel (or Pre-trial Order) Requests for Admissions You certify it yourself, using: Affidavit; Corroborating correspondence; Corroborating evidence (Fax confirmation; confirmation/reply; etc.); and/or Judicial Notice (See FRE 201) Have client forward a copy to his/her Spouse Have witness verify it, through personal knowledge 26

27 Writings: Correspondence between Counsel Practice Pointers: 1. Always send copies of important correspondence by and fax. Print out and save confirmations, as well as any direct replies by OC. 2. Personally send the and Fax yourself (versus have your paralegal do it), so you can personally verify it. 3. Copy the client on anything you send (and do so by a direct c.c. for s). 4. Consider -- if OC is difficult, or you don t know him/her -- having your client personally forward any correspondence to their spouse (so that the client can lay foundation for you it was sent). 5. Prior to trial, ask OC to stipulate to its authenticity, and/or send a Request for Admission. 6. Have a folder set up in your account, and bring to Court a computer (so that you can show the Judge if requested). 27

28 Writings: Diaries/Journals Turns on Reason why they created the diary/entries. Diaries are generally admissible. Robinson v. Robinson, 308 A.D. 2d 332 (2003); Potentially protected Attorney-Client Privilege and/or Work-Product Privilege See discussions in the following cases, where diaries held to be privileged and not admissible. Roe v. Roe, 253 N.J.Super. 418 (1992); See Solomon v. Scientific American, Inc., 125 F.R.D. 34 (1988); Moore v. Tri-City Hospital, 118 F.R.D. 646 (1988); In the Matter of the Probate of Last Will & Testament of John M. Pretino, 150 Misc.2d 371 (1991) 28

29 Writings: Diaries/Journals Practice Pointer: After first conversation with client, document (by ) your advice to client to keep a diary/journal, to assist a future issue over their admissibility/privilege. When possible, clients should structure entries as to their counsel. 29

30 30

31 31

32 Assume you have an FACEBOOK/SOCIAL MEDIA message/post you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticating? Be prepared to argue it is reliable under fact-sensitive analysis and factors See the following as illustrative examples of what has been held to be sufficient authentication in cases pertaining to social media U.S. v. Siddiqui, 235 F.3d 1318 (2000); Simmons v. Commonwealth, 2013 WL (Ky. Feb. 21, 2013); In the Interest of A.D.W., 821 N.W.2d 778, 2012 WL (Iowa App.); Tienda v. State, 358 S.W.3d 633, 638 (Tex.Crim.App.2012); Connecticut v. Eleck, 130 Conn.App. 632, 23 A.3d 818 (2011) (3) Lay the Foundation 32

33 Practice Pointers: (1) Send an Interrogatory asking the opposing party to identify all social media accounts accessed within past [18 months], along with his/her log-in information (user name & password), as well as whether any other persons have had access to such accounts during the applicable time period to his/her knowledge. (2) If YOU (or your paralegal, staff, etc.) are the one who discovers the juicy Social Media content online, make sure that you immediately instruct your client to personally observe it him/herself (so he/she can have personal knowledge ). (3) If you obtain the Exhibit directly from your client, make sure your client provides you with with a print-out of as much content as possible from the user s page/account (to help lay foundation that it came from the user s account). (4) Make sure you have printed out any additional corroborating content from his/her page (e.g., photos of him/her, posts, etc.) (5) Make sure you have prepped the witness if possible, so he/she can assist you authenticate it. 33

34 34

35 Assume you have an PHOTO you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticating? Be prepared to argue it is reliable under fact-sensitive analysis and factors Ideally, the photographer will be able to testify and lay the foundation. However, the photographer is not necessarily required. See Ricketts v. City of Hartford, 74 F.3d 1397 (1996) (holding a photograph, video, or other recording satisfies the authentication requirements if there is sufficient evidence that a reasonable jury could find that the photo or recording is what it is claimed to be, and if there is a bona fide dispute as to the authenticity, the issue should go to the jury). (3) Lay the Foundation 35

36 Valuation sites (Zillow.com; kbb.com; Edmonds.com) Job Search Engines and Job Postings (monster.com, etc.) Salary Ranges and Estimates (payscale.com) 36

37 Assume you have an WEBSITE printout you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticating? Be prepared to argue it is reliable under fact-sensitive analysis and factors (3) Lay the Foundation 37

38 Common Types of Personal Records Used in Divorce Trials: Bank Statements Credit Card Statements Retirement and Financial account statements Receipts Paystubs Loan applications/net Worth statements Summary of Employee Benefits 38

39 Assume you have a BANK STATEMENT/CREDIT CARD STATEMENT/FINANCIAL ACCOUNT STATEMENT/RECEIPT/PHONE RECORD/PAYSTUB/LOAN APPLICATION/SUMMARY OF BENEFITS/ETC you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticating? Be prepared to argue it is reliable under fact-sensitive analysis and factors (3) Lay the Foundation 39

40 Practice Pointer Regarding Personal Records: (1) Secure all records from the party directly through discovery; and/or (2) Utilize Requests for Admissions; and/or (3) Obtain from third-party provider, and remember to obtain Affidavits from the Custodian (and provide OC sufficient advanced notification of intent to use it at trial) 40

41 Tax Returns Financial Statements Bank or other financial statements Shareholder Agreements Etc. 41

42 Assume you have a BUSINESS RECORD you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticating? Be prepared to argue it is reliable under fact-sensitive analysis and factors (3) Lay the Foundation 42

43 Practice Pointer Regarding Business Records: (1) Secure all records from the owning spouse directly through discovery; and/or (2) Utilize Requests for Admissions; and/or (3) Obtain from third-party business directly through discovery, and remember to obtain Affidavits from the Custodian (and provide OC sufficient advanced notification of intent to use it at trial) 43

44 Criminal Conviction Record Prior Court Orders (from other case) Pleadings (in current case) Judgments/Liens/etc. 44

45 Assume you have a COURT RECORD you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticating? Be prepared to argue it is reliable under fact-sensitive analysis and factors (3) Lay the Foundation Show witness marked exhibit. Establish how proponent knows it is what it purports to be 45

46 Assume you have a TAX RECORD you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticating? Be prepared to argue it is reliable under fact-sensitive analysis and factors (3) Lay the Foundation 46

47 Practice Pointer Regarding Tax Records (1) Directions for how to ORDER/DOWNLOAD a Tax Transcript for Free: (2) Directions for how to ORDER/DOWNLOAD a Social Security Statements for Free: Sample Discovery Requests: SOCIAL SECURITY STATEMENT -- Please provide a complete copy of your most recent Social Security Statement, including the detailed earnings record history, and estimates of your retirement, disability and survivor benefits. Note: If you do not have a copy of your most recent statement, you may easily obtain one, at no cost, at: TAX RETURNS Please provide complete copies of all State and Federal Tax Returns filed by you, individually or jointly, for the previous three (3) years. Note: If you do not have a complete copy of a return from any of the requested years, please do each of the following: (1) Fill out, sign, and return the Form 4506 located at (a copy of which is attached to these requests); and (2) request a Tax Return Transcript at (there is no expense to you associated with this request). 47

48 Assume you have a TRUST you want to introduce. Think: (1) Is it relevant? (To what issue?) (2) How can I authenticate it? Can I argue it is Self-Authenticating? Be prepared to argue it is reliable under fact-sensitive analysis and factors (3) Lay the Foundation Show witness marked exhibit. Establish how proponent knows it is what it purports to be 48

49 Analysis/Checklist for Authenticating and Introducing Evidence in Divorce Cases So you have a key piece of evidence you want the Court to consider..how are you going to get it into the evidence? General Considerations Think: (1) How is it relevant? Once you establish it is relevant, you can argue that the FRE provides a presumption that it is admissible (and opposing counsel bares burden of proving otherwise) (2) Where did I obtain it from? (e.g., the client?; opposing party in discovery?; through third party discovery?; a third party voluntarily?; the internet?; public records?) (3) Is it reliably credible (versus, any concerns that the item at issue was manipulated)? (4) Through WHO will I introduce it on the witness stand? (5) How does that witness have personal knowledge about the credibility and authenticity of the exhibit? (What was their role in obtaining or creating the exhibit?) 49

50 (6) Will I be able to authenticate it it in accordance with the local laws of evidence? I.e., Can this exhibit be considered one of the self-authenticating types of evidence, automatically authorized under the law? (See FRE 902, as well as local mirroring laws) If not, can I sufficiently support that the item is what the proponent claims it is, through testimony and/or extrinsic evidence (See FRE 901, with examples of how to do so) (7) How will I effectively and lawfully lay foundation for this exhibit; i.e., what specific questions will I ask the witness, before tendering it to the Court)? (8) What obstacles may I face tendering this exhibit? What if the witness denies recognizing the Exhibit? Does it contain Hearsay? Does it violate any Privileges? Do I have handy any helpful legal authority (to give to the Judge if necessary?) (9) Have I satisfied any mandatory pre-requisites required by the local and statutory rules? Timely provided Opposing Counsel with a copy of the exhibit (or notice of intention to introduce such exhibit) prior to the trial? Included it in any Pre-trial Orders 50

51 (10) Have I effectively prepped my client/witness on how to most effectively assist me authenticate and tender this exhibit into the evidence? (11) Do I have the original? (If not, is that going to be a problem?) (12) If it is a writing or recording, do I have the entire conversation prepared (in case necessary)? (13) Under the circumstances, is this the type of Exhibit that may benefit from a Summary /cover sheet, to attach to the top of the exhibit? (14) Do I have my courtesy copy of the exhibit ready for both opposing counsel and the Judge? (15) If met with an objection at trial, remember to clearly and zealously lay on the record your arguments in support of admissibility (to reserve a challenge on appeal). (16) What if the Court does not let it?? Are there any back door means I can directly or indirectly sneak it in? 51

52 Thomas J. Browning, Esq. Austin R.C. Buerlein, Esq. 31 Atlanta Street Marietta, Georgia

53 By Cynthia L. Ciancio, Esq. Ciancio Ciancio Brown, P.C

54 Summary Exhibits F.R.C.P. Rule Purpose: At the discretion of the trial court, litigants may use summary charts, spreadsheets, diagrams, or graphs to condense or perhaps emphasize what is otherwise voluminous admissible evidence. 54

55 Procedure for Admitting Summary Exhibit How To Admit A Summary: Use actual data to compile a summary. For example, if you want to highlight the deposits (or withdrawals) a spouse made into (or out of) several bank accounts over a 3 year period of time, you may want to summarize that in a spreadsheet so that the Court can easily see the activity and the total amounts without having to thumb through hundreds of pages of bank statements. 55

56 Summary Exhibit Example SUMMARY OF BANK DEPOSITS DATE BANK 1 BANK 2 BANK3 TOTAL 1/1/2010 $ $ 12, $ $ 13, /1/2010 $ $ 10, $ $ 11, /1/2010 $ $ 10, $ $ 11, /1/2010 $ $ 10, $ $ 11, /1/2010 $ $ 11, $ $ 11, /1/2010 $ $ 13, $ $ 14, /1/2010 $ $ 10, $ $ 11, /1/2010 $ $ 10, $ $ 11, /1/2010 $ $ 11, $ $ 12, /1/2010 $ $ 12, $ $ 13, /1/2010 $ $ 10, $ $ 11, /1/2010 $ $ 10, $ $ 11, TOTAL $ 4, $ 132, $ 9, $ 146, MONTHLY AVERAGE: $ $ 11, $ $ 12,

57 Procedure for Admitting Summary Exhibit Continued You need a witness to prepare and authenticate the summary. Say for example you need to get this evidence in through your client, the Wife (who was not the person managing the family finances or maybe unsophisticated when it comes to these matters). You would have her assist you in preparing the spreadsheet and she would review the 3 years of bank statements that show the deposits/withdrawals made. She needs to be able to state that she reviewed the statements and at least assisted in the preparation of the summary and that it is accurate. Your witness takes the stand. You need to lay the proper foundation: Identify the document (Exhibit A, Summary of Bank Deposits). Ask if the summary is an accurate summary of the voluminous documents/information you have summarized (bank deposits made over a 3 year period of time from the First Bank Account). Ask the witness if the actual bank statements are voluminous and properly documented in the summary. To sustain an objection you must make sure that the actual documents/information that you have summarized (bank statements) were made available to the opposing side. 57

58 Procedure for Admitting Summary Exhibit Continued Assuming you lay this foundation, and you did in fact make the statements available to the opposing side, most judges will allow the summary exhibit to come into evidence pursuant to Rule If you are extra cautious, you may want to have the bank statements as their own exhibit along with the summary. 58

59 Examples of Summaries Examples of summaries used in Family Law cases: Spending summaries taken from bank statements/credit card statements Deposit summaries Expense summaries Asset summaries Cell phone calls summarized from a number of monthly invoices Summaries of attorney s fee charges (fee affidavit summary) Appraisal summaries Parenting time summaries 59

60 Credit Card Summary Example Chase CC #9999 Statement Date Balance Charges Credit Limit Payment Made Page Description of Charges 1/12/2013 $ 2, ,000 $ 17, $ 3, /12/2013 $ 2, $ 17, $ /12/2013 $ 9, $ 17, $ 1, Attorney fees 4/12/2013 $ 7, $ 17, $ 2, /12/2013 $ 7, $ 17, $ 1, Vacation to Texas 6/12/2013 $ 9, $ 17, $ - 21 Law firm 7/12/2013 $ 11, $ 17, $ 1, Law firm charges 8/12/2013 $ 10, $ 17, $ 2, /12/2013 $ 11, $ 17, $ 2, Law firm; races 10/12/2013 $ 11, $ 17, $ Grand Canyon 11/12/2013 $ 12, $ 17, $ Law firm 12/12/2013 $ 12, $ 17, $ /13/2014 $ 12, $ 17, $ Frontier Airlines (Ohio) 60

61 By Cynthia L. Ciancio, Esq. Ciancio Ciancio Brown, P.C. 61

62 Demonstrative Exhibits are not admitted into evidence. They are used by the lawyer to help the trier of fact understand/comprehend the evidence. Often these exhibits may not be as probative as admitted evidence/exhibits, but certainly they are persuasive and often can help illustrate your point or make other more lengthy (or complicated) substantive evidence easily understood by using a condensed document, illustration, chart, summary, etc. Child support or Alimony Worksheets (using state calculators) are Demonstrative Evidence frequently used in Family Law Cases. 62

63 63 63

64 Example - Asset and Debt Spreadsheet (Client on the Stand) - Do you recognize what s labeled as Exhibit 1? What is it? Who prepared it? Step by Step Use of Demonstrative Exhibit What are you demonstrating to the Court? Does it accurately reflect a summary of the marital assets and debts? Does it contain your proposed division of assets and debts? Your honor, I move the Court to accept Exhibit 1 as a demonstrative exhibit, demonstrating my client s proposed asset/debt division. 64

65 Example of Demonstrative Exhibit Proposed Asset/Debt Division 65

66 Example of Demonstrative Exhibit Historic Income Statement 66

67 67

68 Example of Demonstrative Exhibit Timeline of Key Events Related to Modification Proceedings Oct-08 Feb-09 Dec Aug Nov. 6, 2010 Jan-11 Mar-11 Mediation, case settles, MOU Signed Marriage Dissolved, MOU Entered as Dissolution Agreement Petitioner moves to Modify Child Support and modify parenting Child Support Modify. Hearing time turns 19 years old Magistrate Child Support Order increases child support to $4,000 for 4 and 3 children, with Petitioner s Motion to Modify Parenting Time is payment of arrears to Jan. 2010; Settled increases share of costs to 92.75% MOU establishes Child Support for 4 Children at $2400 through a Worksheet A, starting Jan Cost sharing is 70% for Jun-11 Sep-11 Aug-12 Nov Apr-13 Apr-13 Jun-13 Feb. 10, 2015 District Court affirms Magistrate s Order Colorado Court of Appeals moves for modification of child support due to sale of house and availability of cash for maintenance Vacates Magistrate s and District Court s Orders and Remands child support modification issue for further proceedings Attorney Fees Hearing re parenting time modification turns 19 years old moves for modification. of child support Child Support Hearing turns 19 years old Child Support reverts back to $2400 under original MOU, starting with Sept 2012 payment 68

69 By Cynthia L. Ciancio, Esq. Ciancio Ciancio Brown, P.C. 69

70 Hearsay FRE (a) Statement - means a person s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. (b) Declarant - means the person who made the statement. (c) Hearsay - means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers the statement into evidence to prove the truth of the matter asserted in the statement. 70

71 What s Not Hearsay Statements offered not for the truth of the matter asserted. Prior statement by a witness (read rule). Admission of a party-opponent (read rule). 71

72 Common Hearsay Exceptions - Rule 803 (Availability of Declarant Immaterial) 1. Present Sense Impression 2. Excited Utterance 3. Then-Existing Mental, Emotional, or Physical Condition 4. Statements Made for Medical Diagnosis or Treatment 5. Recorded Recollection 6. Records of Regularly Conducted Activity 7. Absence of a Record of a Regularly Conducted Activity 8. Public Records and Reports 9. Public Records of Vital Statistics 10. Absence of a Public Record or Entry 11. Records of Religious Organizations 72

73 Common Hearsay Exceptions- Rule 803 continued 12. Certificates of Marriage, Baptism, and Similar Ceremonies 13. Family Records 14. Records of Documents That Affect an Interest in Property 15. Statements in Documents That Affect an Interest in Property 16. Statements in Ancient Documents 17. Market Reports and Similar Commercial Publications 18. Statements in Learned Treatises, Periodicals, or Pamphlets 19. Reputation Concerning Personal or Family History 20. Reputation Concerning Boundaries or General History 21. Reputation Concerning Character 22. Judgment of a Previous Conviction 23. Judgments Involving Personal, Family or General History, or a Boundary 24. Other Transferred to Rule

74 Present Sense Impression A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Example: Mom said she was really concerned about her child who really seemed to be in pain. 74

75 Excited Utterance A statement relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused. Examples: Ouch that hurt Stop touching me Stop spanking the boy 75

76 Statement Made for Medical Diagnosis or Treatment Most states allow it if made to a physician or first responder (observer type) for purposes of diagnosis and treatment in view of the patient s strong motivation to be truthful. The same guarantee of trustworthiness extends to statements of past conditions and medical history made for purposes of diagnosis or treatment. Examples: The child said his leg hurts The child said his Dad hit him on the leg 76

77 Market Reports and Similar Commercial Publications Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations. Examples: Stock prices Website printouts Magazines Department of Labor Statistics 77

78 Records of Regularly Conducted Activity Example: A school sign-in sheet (offered to prove Mom always takes the child to school) It is hearsay. But, an exception applies it is a record kept in the regular course of business A school sign-in sheet is hearsay because it is compilation of out of court statements offered for the truth of the matter asserted. You may be using the sign-in sheets to establish that Mother picks up the children more often than Father. You certainly do not want to call every parent on the list. The document is trustworthy because it is kept in the regular course of business. 78

79 Residual Exception Rule 807: (a) Under some circumstances, a hearsay statement may be admitted even if it is not specifically covered by a hearsay exception: the statement has equivalent circumstantial guarantees of trustworthiness; it is offered as evidence of a material fact; it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and admitting it will best serve the purposes of the rules and the interests of justice. (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives the adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant s name and address, so that the party has a fair opportunity to meet it. 79

80 Example of a Document Presented as an Exhibit Without the Authenticating Witness Using the Residual Exception 80

81 Police reports they are not public records. Child s statements there may be an exception, however, they are usually hearsay. Your client s prior consistent statement. A written document proving your client s own testimony. 81

82 Contact Info Cynthia L. Ciancio, Esq. Questions? Feel free to contact me at: Ciancio Ciancio Brown, P.C. Phone: