58 th Mid-Year Meeting Introducing Evidence in Family Court

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1 Vermont Bar Association Seminar Materials 58 th Mid-Year Meeting Introducing Evidence in Family Court March 20, 2014 Hilton Burlington, VT Faculty: Hon. Amy Davenport Priscilla Bondy Dubé, Esq. Christopher L. Davis, Esq.

2 Rules of Evidence in Family Law Cases VBA March 20, 2015

3 Practical Lawyering in the Age of ZERO Privacy

4 These things may sound simple and the admissibility of evidence is our real topic but..getting these simple things wrong can have as much impact on your case as the evidence itself. As we discuss the more cerebral issues, please keep the housekeeping in mind:

5 Copies of texts, s, Facebook pages etc. must include incidents of authenticity

6 Copies really should be on 8 ½ by 11 inch paper or legal size if absolutely necessary

7 Copies should be marked with exhibit stickers, with copies for everyone and legible

8 Copies have to be complete or noted that they are not for the whole thread or posting

9 If the Court doesn t care about run of the mill fault then the Court is not likely to care about your proof of fault just because it is a stunningly obnoxious communication. If your client insists on putting in an exhibit (putting aside that it could open up a whole lot of nasty and unnecessary responsive exhibits) then make it fast and clean and move on.

10 Be 100% sure that the post is authentic and be sure to read the whole thing from the very beginning to the very end to be sure there isn t a surprise or two.

11 Bits and pieces of texts, s or social networking are often chronologically backward, fragmented and hard to follow and may prove one tiny point in a huge mosaic of marriage. The cleaner the presentation and the sparing use of exhibits can highlight their importance. Over use of fragments can cause confusion, be really tedious and may no be the best way to get the information into the record.

12 Just because you have it, doesn t mean you have to use it.

13 More Evidence Fundamentals

14 Plaintiff s Exhibits are numbered (i.e. 1, 2, 3, 4 etc.)

15 Defendant s Exhibits are lettered (i.e. A, B, C, D etc.)

16 Prepare a list of your proposed Exhibits. Have copies for the Court officer and opposing counsel.

17 Just because a document was filed with a pleadings does NOT make it admissible. If you want it introduced as an Exhibit you still need to get it admitted.

18 Don t forget to show the proffered Exhibit to the witness.

19 Question #1: Wife: My husband Joe told me that he removed $20,000 from our safe deposit box two days before I filed for divorce. Admissible? Why or why not?

20 Question #1 Answer Yes it is admissible. Note: It is NOT hearsay. It is an admission by party-opponent. V.R.E. Rule 801(d)(2).

21 What is Hearsay? Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. VRE 801(c)

22 Focus of the Rule The Rule unmistakably focuses on the use of a statement by a party offering it into evidence and not on the intention of the witness who repeats the hearsay statement. State v. Brochu, 183 Vt. 269, 295 (2008).

23 Three Things to Keep in Mind When Considering Admissibility First Is the evidence exempt from the hearsay rule? (e.g. statement of party opponent) If yes, it is admissible, if no go to Second--Is the evidence hearsay? If no, it is admissible, if yes, go to Third Does the hearsay evidence fit an exception to the hearsay rule? If yes, it is admissible If no, it is inadmissible

24 Scope of the Hearsay Rule The scope of what is actually hearsay is relatively narrow. Evidence is hearsay only if these three questions are answered yes. (1) Is it a statement? (2) Is it made by an out-of-court declarant? (3) Is it offered to prove the truth of the assertion?

25 Question #1: Is it a Statement? A statement is: (1) An oral or written assertion; or (2) Nonverbal conduct of a person, if it is intended by the person as an assertion - VRE 801(a) An assertion is a declaration which declares or asserts a fact, including a state of mind, to transfer information

26 Hearsay Exceptions There are numerous hearsay exceptions: 23 under VRE 803, where the availability of the declarant is immaterial; and 5 under VRE 804 where the declarant must be unavailable. VRE 804a (victim age 12 or under)

27 Some Common VRE 803 Exceptions 803(1) Present Sense Impression 803(2) Excited Utterance 803(3) Then Existing Mental, Emotional, or Physical Condition 803(4) Statements for Purposes of Medical Diagnosis or Treatment 803(6) Records of Regularly Conducted Activity

28 803(6) Business Records The foundation for a business record is: (1) the record was made or kept in the course of a regularly conducted business activity; (2) it was the regular practice of the business to make the record; (3) the record was made at or near the time; and (4) the record was made by, or from information transmitted by, a person with knowledge. all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12) or a statute or rule permitting certification

29 Double Hearsay Business records (and public records under VRE 803(8)) often present double hearsay problems. If the statement by the outside declarant is hearsay and does not fit another hearsay exception it should be excluded.

30 Certificate Rules 902(11) and (12) were added to provide that all elements of the foundation may be established by certification by the custodian or another qualified person, thereby obviating the need for foundational testimony at trial. CAUTION: This does not substitute for the proper foundation under 803(6).

31 Rule 703 Hypothetical Dr. Jones is hired to do a custody evaluation and recommends that Dad be awarded sole parental rights and responsibilities for Johnny. During his direct exam by Dad s attorney, Dr. Jones testifies that when he interviewed seven year old Johnny, Johnny told him that Mom locks him in his room for hours whenever he does anything bad. Mom s attorney objects.

32 VRE 703 Facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject, the facts and data need not be admissible in evidence in order for the opinion or inference to be admitted.

33 VRE803(4) Medical Diagnosis or Treatment Hypothetical Mom testifies that five year old Mary returned from a visit with Dad complaining that her arm hurt. Mom states that when she took five year old Mary to the emergency room, Mary told the Doctor that her arm hurt because when Daddy grabbed her, he twisted her arm really hard. Admissible?

34 Answer VRE 803(4) only allows statements describing medical history, past or present symptoms, pain or sensations. Statements to a doctor as to the cause of an injury are NOT admissible. Mom can testify that Mary told the Doctor that her arm hurt, but she cannot testify as to Mary s statements regarding why her arm hurt.

35 Question #2: Maternal grandmother in response to attorney s question: Attorney: Why did you leave the marital residence with your granddaughter Amy? Grandmother: Amy called me on the phone and told me that daddy just hit me. Admissible? Why or why not?

36 Question #2 Answer Yes it is admissible. Note: It is not hearsay to offer the statement to explain why the grandmother left with the child that night.

37 The granddaughter s statement may be offered to prove the grandmother s state of mind, V.R.E Rule 803(3) which is an exception to the hearsay rule. It is not being offered to prove whether the hitting occurred.

38 Question #3 Attorney: Offers to introduce the minor child s sixth grade school grade reports though her mother. Admissible? Why or why not?

39 Question #3 Answer It is NOT admissible, because not properly authenticated. It is hearsay. However these records may be admissible if introduced through the custodian of the records or other qualified witness. V.R.E. Rule 803(6)

40 But Then must ask what hearsay exception, if any, applies.

41 Personal Development T1 T2 T3 Is organized and prepared M M E Follows directions M M E Works independently M M M Work cooperatively M M M Completes class work M M M

42 Question #3 Answer Cont. Query: Are the grade reports admissible? Why or why not?

43 Comments: Trimester 2 Suzy has made good progress across the curriculum this year. She is a good listener and critical thinker. My goal for her during the third trimester would be for her to participate more in class discussion without teacher prompting. Suzy interacts in a positive manner with her classmates and others in school.

44 Question #3 Cont. Are the teacher s narrative comments admissible? Why or why not?

45 Query: Can you and opposing counsel stipulate to the introduction of these records?

46 Question #4 Facts: Joe and Sue are having an argument at home. The paternal grandmother, Betty, has a mother-in-law apartment in the home. Betty observes Sue slap Joe on the face. Betty immediately calls her best friend, Ruth, to ask what she, Betty, should do. Betty is sobbing and clearly distraught and tells Ruth what she observed. At the time of trial, Betty is in Florida for the winter. She is sick and unable to testify by phone. Joe s attorney calls Ruth to testify what Betty told Ruth about the night in question. Admissible? Why of why not?

47 Question #4 Answer Ruth s statement is hearsay. But it may be admissible as an exception: an excited utterance, V.R.E. Rule 803(2).

48 Question #5 Susan testifies that she had received text messages from her husband, Joe, and begins referring to their content. Susan s attorney has offered to introduce photographs of the text messages to which Susan is referring. Husband s attorney objects to Susan s testimony as well as the introduction of the photographs of the text messages. Are the photographs of the text messages and Susan s testimony admissible? Why or why not?

49 Question #5 Answer Not admissible at least yet. The issue is authentication. A recipient can properly authenticate text messages.

50 Question #5 Cont. So need more information. e.g. a conversation existed and recipient testifies she remembers the conversation and responded to the sender.

51 Question #6 Attorney: How much do you think your Corvette is worth? Husband: It s Kelly Blue Book value is $25,000. Admissible? Why or why not?

52 Question #6 Answer: Husband s answer is hearsay. But can the Kelly Blue Book information be admitted as an exception? See V.R.E. Rule 803(17), Market reports, commercial publications.

53 Query: How would you authenticate Kelly Blue Book valuation?

54 Question #7 Husband, Joe, allegedly sent his wife, Susan, threatening text messages on her business cell phone. An employee of Susan s company testifies that the company keeps record of all incoming and outgoing text messages and stores them and the times received in its database. The employee further identifies the proffered exhibits as photographs of the stored text messages for the telephone issued to Susan. Are the photographs of the text messages admissible? Why or why not?

55 Question #7 Answer Yes, the photographs of the text messages are admissible. The issue here is authentication under V.R.E. Rule 901(a) and (b)(2).

56 Two main concerns in authenticating electronic messages: 1. Authenticating that the messages shown are same as those sent to the recipient. 2. Authenticating identity of the sender.

57 Can authenticate with witnesses who have knowledge of messages sent and received (or how stored and retrieved). State v. Taylor, 178 N.C. App 395, 632 S.E. 2d 218 (2006)

58 Question #8: At trial mother certifies that the parties 15 year old son, Max, has told her that he will run away if forced to see his father. Father s attorney objects. Is the mother s testimony admissible? Why or why not?

59 Question #8 Answer The statement is admissible as an exception to the hearsay to show Max s state of mind. V.R.E Rule 803(3). See also Schumacker v. Shumacker, 2011 N.D , 796 N.W. 2d 636 (N.D. 2011)

60 Question #9 Wife accesses husband s , phone messages and Facebook account using passwords that were common knowledge during the marriage. Information admissible?

61 Question #9 Answer Yes, openly available accounts with commonly used passwords are essentially marital property with no expectation of privacy.

62 Question #9 Cont. Husband accesses wife s using a key stroke capturing software the parties put on their computers when their teenager was acting suspiciously? Information admissible?

63 Question #9 Answer Maybe. If both parties were aware that the software was there and had both used it and knew it covered all key strokes for all users, then they both knew it could be used.

64 Question #9 Cont. Spouse illegally taps other spouses phone and intercepts texts and hacks the computer or just guesses the new password to get all s. Admissible?

65 Question #9 Answer Maybe again! Do the criminal court rules about illegal wire taps or key stroke software apply in family court or is it possible that something is technically illegal but not inadmissible? Illegal wire taps for example will be excluded under federal rules. But, other methods of electronic surveillance such as putting a GPS in your own car or tracking a cell phone as the administrator of the account, may not be either illegal or inadmissible. And, would the court look at it differently if something is offered solely for rebuttal to directly contradict a party s sworn testimony?

66 Question #10 1. Friend A posts on Facebook that Spouse 1 is in love and totally happy. 2. Friend B posts With his/her spouse?! I thought I saw him/her out with! 3. Spouse 1 chimes in NO WAY!!! is great! Spouse is out! Life is good!

67 Question #10 Cont. Which of the posts are admissible: a. Facebook posts that are available to the parties through their own Facebook pages are admissible. But, aren t the first two posts hearsay? b. Facebook posts that are available to friends, family and a whole host of others are admissible. But aren t the first two posts still hearsay? c. Once Spouse 1 responds and essentially verifies the truth it becomes an admission and all the posts are admissible.

68 Question #11 Attorney A: Do you remember what you told your sister happened that night? Wife: Not exactly. Attorney A: Would this help? Attorney then gives a piece of paper to the Wife. Wife: Yes Then she starts reading the letter. Attorney B: Objection.

69 Question #11 Cont. What are the issues presented by this problem?

70 Question #11 Cont. How do you properly refresh the recollection of a witness?

71 Question #11 Cont. Is the letter that was given to the Wife admissible? Should it be marked as an Exhibit? See V.R.E. Rule 803(5) recorded recollection.

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