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, JANUARY 8, 2015 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Jeffrey Owen Anderson, Partner, Orsinger Nelson Downing & Anderson, Dallas Michael P. Judge, Esq., Burns & Levinson, Boston Sheri Lake, Partner, Smith & Lake, Decatur, Ga. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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EVIDENTIARY CHALLENGES IN DIVORCE CASES Sheri T. Lake, Esq. Smith & Lake, LLC Decatur, Georgia slake@smithlakelaw.com www.smithlakelaw.com 5
I believe in evidence. I believe in observation, measurement, and reasoning, confirmed by independent observers. I'll believe anything, no matter how wild and ridiculous, if there is evidence for it. The wilder and more ridiculous something is, however, the firmer and more solid the evidence will have to be. Isaac Asimov, The Roving Mind 6
The Cornerstones of All Evidence: Relevance Authenticity Reliability 7
Relevance of Evidence (FRE 401 403) First requirement of all evidence. Relevant evidence is any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 8
Authenticating Evidence (FRE 901 903) The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Authentication or identification under rule 901 merely involves the process of presenting sufficient evidence to make out a prima-facie case that the proffered evidence is what it purports to be. Once that prima-facie showing has been made, the evidence should be admitted, although it remains for the trier of fact to appraise whether the proffered evidence is in fact what it purports to be. 9
Self-Authenticating Evidence Non-public: Newspapers and magazines Inscriptions, signs or labels affixed in the course of business and indicating ownership, control or origin Notarized documents Commercial paper, instruments and documents related thereto Affidavits establishing the foundation for ordinary business records Public: Public records with a certificate or attestation by public officer 10
Reliability of Evidence: Hearsay (FRE 801 807) Hearsay is an out of court statement by a non-testifying declarant offered for the truth of the matter asserted, i.e. Joe said he saw Husband s car at the mistress s house therefore Joe s car (and Joe) must have been at the mistress s house. Always look at: Exclusions: Prior inconsistent statements (impeaching a witness) Opposing party s statement Exceptions State of mind Present Sense impression Excited Utterance Reputation concerning character Business record Family records Public records Child s out of court statement regarding sexual contact or abuse (in some jurisdictions) 11
Practical Considerations for Hearsay Consider whether your state has any special hearsay exceptions relating to a child s out of court statement describing abuse For example, Georgia has a Child Hearsay Statute which allows for statements by the child describing any acts of sexual conduct or physical abuse to be admissible through the testimony of the person to whom the statements were made if the child is available to testify 12
Reliability of Evidence: Best Evidence Rule (FRE 1001 1008) If there is an original piece of evidence, a writing, recording, or photograph, the original must be produced as an exhibit unless excused. For example, instead of having a witness testify about the contents of a video, the video must be played. Exceptions If a copy has the same content, it is admissible unless there are genuine issues regarding authenticity of the original. Summaries of voluminous records are allowed but the original records must be made available to the opposing party and Court. Contents may be proved by testimony, deposition or written statement of party against whom evidence is offered. 13
Lay witness opinion testimony (FRE 701) A lay witness may testify in the form of an opinion if the opinion is one that is: (1) Rationally based on the witness s perception (i.e. they have first-hand knowledge) (2) Helpful to clearly understanding the witness s testimony or to determining a fact at issue; and (3) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 (expert testimony). 14
Considerations for lay witness opinions Lay witnesses may testify to fair market value of property (real or personal) if they have a reasonable basis for their opinion, i.e. I have researched what houses in our area currently sell for and are listed on the market for a based my estimate on that. Witness must testify to their personal opinion and may not be a conduit for others. Probative value and weight of the evidence and credibility of the witness is a question for the trier of fact. Lay witnesses may express opinions that logically flow from their observations, for example, speed of a car, cause of an accident, state of mind, or whether a person is intoxicated. Lay witnesses may not engage in speculation or conjecture. The distinction between lay and expert opinion is that lay testimony results from a process of reasoning familiar in everyday life, whereas expert testimony results from a process of reasoning that can only be mastered by specialists in the field. This specialized knowledge involves education or training, whether formal or informal. 15
Evidentiary Challenges in Divorce Cases From Writings and Photographs to Text Messages and Social Media Michael P. Judge, Esq. 125 Summer Street Boston, Massachusetts 02110 mjudge@burnslev.com burnslev.com
ORIGINAL EVIDENCE RULE When does it apply? Often referred to as the Best Evidence Rule Governed by FRE 1001-1005. Rule requires the use of an original writing or photograph to prove content if content is the central issue. Duplicates are generally allowed, unless a genuine question is raised about the original s authenticity or it is unfair to admit a duplicate. The burden is on opponent to raise dispute. 17
DEFINITIONS Writings: Documents which consist of words, numbers and recordings. Photographs: Include photographs, x-rays, video tapes and motion pictures. Original: The writing or record itself, or any copy intended to have same effect. Duplicate: A copy of a writing or record, not intended to be original. Secondary evidence 18
INTRODUCTION OF WRITING INTO EVIDENCE Writing must be authenticated to be admitted, except as provided by statute or common law. Requires proper foundation. Writing must be trustworthy. Testimony that may be otherwise inadmissible, may be admitted to prove the content of the writing because the original is lost, destroyed, or beyond the reach of a subpoena. 19
MASSACHUSETTS BEST EVIDENCE RULE Where the original has been lost, destroyed, or otherwise made unavailable, its production may be excused and other evidence of its contents will be admissible, provided that certain findings are made: 20
ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS Original is lost or destroyed. Original is not obtainable. Original in possession of party opponent. Collateral matters (writing or record is not closely related to a controlling issue). 21
EXCEPTIONS TO BEST EVIDENCE Writings or records admissible by common law or statute: Official or Business Records (Foreign or Domestic) ex. M.G.L. c. 233, 79G.(Medical bills and medical records) In Massachusetts, the Best Evidence rule does not apply to party admissions. 22
HOW TO PROPERLY ADMIT A SUMMARY Governed by F.R.E. 1006. Purpose: In the court s discretion, litigants may use summary charts, spreadsheets, diagrams, or graphs to condense what is otherwise voluminous admissible evidence. Some states, like Massachusetts, do not allow summaries to be evidence. Rather, they are called chalks, and are used to summarize information that is otherwise admissible. 23
PROCEDURE FOR ADMITTING A SUMMARY How to admit a summary: Must use actual data to compile a summary. Example: Summarize the number of times a spouse withdrew funds from a retirement or investment account(s) over a certain period of time.the summary is an aid to the Court to highlight the evidence sought to be introduced, which is otherwise voluminous. 24
EXAMPLE OF A SUMMARY EXHIBIT DATE INSTITUTION ACCOUNT AMOUNT 1/1/2014 LPL (Exh. A) Brokerage $15,000 2/1/2014 Merrill Lynch (Exh. B) IRA $10,000 3/1/2014 Fidelity (Exh. C) 401K $25,000 4/1/2014 Mass Mutual (Exh. D) Roth IRA $20,000 5/1/2014 ING (Exh. E) Money Market $25,000 6/1/2014 Fidelity (Exh. F) IRA $5,000 TOTAL WITHDRAWALS: $100,000 25
PROCEDURE FOR ADMISSION OF A SUMMARY A witness must prepare and authenticate a summary. The witness takes the stand to testify. A proper foundation needs to be laid. The summary needs to be an accurate reflection of the otherwise voluminous documents. 26
PROCEDURE FOR ADMISSION OF A SUMMARY (continued): 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, summarized records. You should make the records to be summarized, available to the opposition. Most judges will allow this into evidence pursuant to FRE 1006 27
EXAMPLES OF SUMMARIES IN FAMILY LAW Bank, investment, and retirement account statements. Asset summaries. Cellular telephone records. Bank deposit records. Job search records. Records of ATM withdrawals. 28
INTRODUCTION OF SUMMARY Rule 1006 of the Texas Rules of Evidence Questions to ask witness: I am handing you what I have marked as Petitioner s Exhibit 1. Will you please identify this for me? Did you prepare this with the aid of my office (or did you prepare this)? 29
INTRODUCTION OF SUMMARY (continued) Were you familiar with the underlying facts and documentation that went into the preparation of this document? Does this document accurately reflect the underlying facts and documentation as you understand them? If I were to ask you about each and every item on this document, would your answer be in conformity with what is there written? 30
USE OF SUMMARY IN MASSACHUSETTS The content of voluminous writings or records which cannot conveniently be examined in court may be presented in the form of a summary, chart, or the like, which accurately reflects the contents of the underlying records. The originals or duplicates may be available for inspection or copying by the opponent. The summary is not an exhibit, but the court will accept the summary as an aid to the court. 31
Jeffrey Owen Anderson Orsinger Nelson Downing & Anderson jeff@ondafamilylaw.com
Demonstrative Evidence is important because it has a persuasive and compelling effect in court: Used to describe/explain concepts that are difficult or impossible to verbalize 33
Admissibility of Demonstrative Evidence: Trial judge has a broad latitude to admit or deny demonstrative evidence To obtain a reversal based on error in admission of evidence, a losing party must show more than the ruling was error. In family court, we often use summaries of testimony to help condense a large amount of information for the trial judge: The admission of summaries of testimony is within the broad discretion of the trial judge, and we often see trial judges admit such evidence 34
In order to admit a demonstrative aid, the following should be known: 1. The witness recognized the exhibit; 2. The exhibit will assist the witness in testifying; 3. The matter reasonably depicts what is offered to represent. 35
In order to admit demonstrative evidence, the following should be known: 1. The exhibit is a fair and accurate representation of what it purports to represent; 2. The exhibit will assist the witness in testifying; 3. It will help the trier of fact to better understand that testimony. 36
Hearsay is a statement, other than the one made by the declarant when testifying at a trial or hearing, that is being offered as evidence to prove the truth of the matter asserted. A statement is defined as any written or oral expression, or even nonverbal conduct of a person, if that conduct is intended to substitute for verbal expression. The matter asserted is any matter explicitly and implied by a statement, if not the probative value of the statement as offered, flows from declarant s belief as to the matter. 37
What is not Hearsay (and therefore admissible): Admission by a party-opponent Depositions in the same proceedings Prior statements by a witness 38
Hearsay is not admissible unless it falls within a statutory exception. Regardless of the availability of a declarant as a witness, the following are statements that are not excluded by the hearsay rule: Present sense impression Excited Utterance Existing Mental, Emotional, or Physical Condition Statements made for purposes of medical treatment or diagnosis Recorded Recollection 39
Records of regularly recorded activity Absence of entry in records kept in the ordinary course of business Public records and reports Records of vital statistics Absence of public record of entry Religious organization records Marriage, Baptismal and similar certificates Family records 40
Hearsay Statement of Child Abuse Victim pursuant to Code of Criminal Procedure Article 38.072 Prerecorded Statement of a Child as provided in Texas Family Code 104.002 41
Remote Televised Broadcast of Testimony of Child as provided by Texas Family Code 104.004. Hearsay Statement of a Child Abuse Victim pursuant to Texas Family Code 104.006. 42
Introducing Exhibits Practical Considerations Where time permits, exchange exhibits prior to hearing or trial and stipulate to their admissibility. When possible, pre-mark exhibits for efficiency. Bring at least 3 copies, one for opposing counsel, one for the witness and one for the judge. Always show opposing counsel the exhibit, or give them a copy, prior to approaching the witness. Ask for permission to approach the witness for purposes of identification. Once preliminary questions have been asked, make sure you move to admit the exhibit. Keep a list of admitted exhibits. Consider if the exhibit will be more effective blown up or displayed through assistive technology? 43
Introducing a Handwritten Note [Q] Mrs. Witness, handing you what s been marked as Plaintiff s Exhibit 1 for identification purposes, do you recognize this? [A] Yes. [Q] Can you identify what it is? [A] It is a letter the Defendant wrote to me. [Q] How do you know this letter is from Defendant and not someone else? [A] I recognize his handwriting from other writings I ve observed in the time we were married. Alternatives: [A] The handwritten letter has specific information that only he and I know. [A] I saw him write the letter. 44
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Introducing a Typewritten Note [Q] Mrs. Witness, handing you what s been marked as Plaintiff s Exhibit 1 for identification purposes, do you recognize this? [A] Yes. [Q] Can you identify what it is? [A] It is a typed letter the Defendant wrote to me. [Q] How do you know this letter is from Defendant and not someone else? [A] It has specific information that only he and I know. Alternatives: [A] It was on the family computer that is password protected and only he and I have the password. [A] He gave it to me and stated he wrote it. 47
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Introducing Social Media [Q] Mrs. Witness, handing you what s been marked as Plaintiff s Exhibit 1 for identification purposes, do you recognize this? [A] Yes. [Q] Can you identify what it is? [A] It is a page from the Defendant s Facebook page dated November 23, 2013. [Q] Do you have access to Defendant s Facebook page? [A] Yes, I am Defendant s Facebook friend and I can see her profile on Facebook. (Alternatively, My daughter is Defendant s Facebook friend and I viewed Defendant s Facebook profile through my daugher s login information, which she provided to me. ) [Q] How do you know this is from Defendant s Facebook page and not from some other person s Facebook page. [A] The page identifies Defendant by her name, and the profile picture is of Defendant. 49
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Introducing Pictures [Q] Did you take pictures of your home prior to moving out? [A] I did. [Q] Handing you what s been marked collectively as Defendant s Exhibit # 5 for identification purposes; do you recognize these photographs? [A] Yes, these are the pictures I took of my home the day I moved out. [Q] Are each of these photos fair and accurate representations of your home as it appeared the day you moved out? [A] Yes. 52
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Introducing Pictures [Q] Are you concerned that your wife has an alcohol abuse problem? [A] I do. [Q] Have you seen her drink alcoholic drinks in the home? [A] Yes. [Q] Did you take pictures of alcoholic beverages that your wife drinks in the home? [A] I did. [Q] When did you take the photographs? [A] I took the photographs on March 1, 2012. [Q] Handing you what s been marked collectively as Defendant s Exhibit # 6 for identification purposes; do you recognize these photographs? [A] Yes, these are the pictures I took of the different bottles of alcoholic beverages in our home. [Q] Are each of these photos fair and accurate representations of the bottles of alcoholic beverages in your home when you took the photos on March 1, 2012? [A] Yes. 55
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QUESTIONS? Sheri T. Lake, Esq. Smith & Lake, LLC (404) 909-8300 slake@smithlakelaw.com 59
HOW TO INTRODUCE AN E-MAIL OR TEXT MESSAGE Authentication of the electronic or digital communication is necessary. Confirming circumstances are needed which allow a reasonable fact finder to conclude that this evidence is what it claims to be. Identify the e-mail address or phone number from the message. What is the date of the e-mail or text? 60
HOW TO INTRODUCE AN E-MAIL OR TEXT MESSAGE (continued): Who is the sender of the e-mail or text? Who is the recipient of the e-mail or text? How did you get the e-mail or text? Show the reproduction of the text or e-mail. Put the e-mail or text in the proper context. 61
SAMPLE E-MAIL To: Jane Smith (janesmith@email.gov) From: John Smith (johnsmith@email.gov) Date: January 1, 2015 Re: Spousal Support Jane: I hate you! If you want alimony from me, you will have to pull it from my cold, dead hands. Happy New Year! John 62
E-MAILS, TEXT MESSAGE & BEST EVIDENCE In Massachusetts, the use of e-mails and text messages is not forbidden by the Best Evidence rule, even though there is no original in the traditional sense. In Massachusetts, the marital disqualification does not apply to writings, including e-mails and text messages. Commonwealth v. Szczuka, 391 Mass. 666, 678, n. 14 (1984). 63
Over the years, courts have become more receptive toward electronic evidence and social media Social media information can make or break a case Individuals often fail to restrict access to their social media profiles Attorneys can perform a simple public internet search to obtain unfiltered evidence of his/her relationships, emotions, thoughts, and activities Attorneys can also obtain this information through the discovery process 64
Exhibits containing website information (including social media) are subject to the same requirements of authentication and admissibility as other paper documents 65
Evidence Rule 901(a) provides that the requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent proclaims Rule 901 does not erect a particularly high hurdle, and that hurdle mar be cleared by circumstantial evidence 66
In a jury trial, the preliminary question for the trial court to decide is simply whether or not the proponent of the proffered evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence is authentic 67
Raises three separate issues: 1. What was actually on the website? 2. Does the exhibit accurately reflect it? 3. Is it attributable to the owner of the site? 68
Although courts generally have moved away from a categorical distrust of websites, they have demanded different amounts of supporting material before accepting a website as authenticated. Information downloaded from an established website of well-known business will most likely need less proof to authenticate the document as opposed to a less credible or known website. 69
The production of a document in response to written discovery authenticates the document for use against that party unless within 10 days or a longer or shorter time ordered by the court, after the producing party has actual notice that the document will be used the party objects to the authenticity of the document. If an objection is properly made then the party attempting to rely on the document will be given a reasonable opportunity to establish its authenticity. 70
1. Evidence Rule 902: Is an exception to the general manner in which documents must be authenticated. The rule provides a list documents that are self-authenticating, meaning that the proponent of the document does not have to provide extrinsic evidence of authenticity as a condition precedent to admissibility. Many of the items listed under this rule can be obtained from different internet sources. 71
The following is a list of such documents found under Evidence Rule 902: 1. Domestic public documents under seal; 2. Domestic public documents not under seal; 3. Foreign public documents; 4. Certified copies of public records; 5. Official publications; 6. Newspapers and periodicals; 7. Trade inscriptions and the like; 8. Acknowledged documents; 9. Commercial paper and related documents; 10. Business records accompanied by affidavit. 72
For example, some courts have considered printouts from government-run websites to self-authenticating official publications under Rule 902(5), as long as the printout displays the website URL and date of access 73
Evidence Rule 901(b) provides a nonexhaustive list of methods to satisfy the general authentication requirements of Rule 901(a) 74
Attorneys trying to authenticate exhibits that have information from the Internet websites would most likely rely upon, singly or in combination, the following subsections of Rule 901(b): The testimony of a witness with knowledge who can testify that a matter is what it is claimed to be. Rule 901(b)(1). Expert Testimony Rule. Rule 901(b)(3). 75
The Distinctive Characteristics of the Website Rule 901(b)(4). Public Records Rule 901(b)(7) System or process capable of producing a reliable result Rule 901(b)(9) Official Publications Rule 901(b)(5) The amount of evidence will vary with the type of website. The two common methods generally used for websites are Rule 901(b)(1) and Rule 901(b)(4). 76
Assume Attorney A wants to get a social media page printout into evidence and the witness is author of the printout. What would Attorney A ask the witness to get the printout into evidence? 1. Witness has a login and password for social media account; 2. Witness recognizes the exhibit; 3. Witness authored the words on the exhibit OR witness believes the words in the exhibit are true 4. The exhibit accurately reflects the page as it appeared on that day; and 5. Witness authored the words on the printout 77
Now assume that the Witness is not the Author of the Printout: 1. Witness printed the exhibit; 2. Witness is familiar with the computer and printer used to print the exhibit; and 3. The exhibit accurately depicts the web site as it appeared on that day. 78
In Tienda v. State (out of the Court of Criminal Appears), the trial court did not abuse its discretion in admitting printouts from MySpace pages with sufficient distinctive characteristics to establish that defendant created them; pages contained photos of defendant, references to murder victim, details of shooting, mentions of defendant s gang, and references to defendant s widely known nickname as well. Different social media profiles often have photos, background information, commentary, and other distinctive characteristics of the user that can be offered to authenticate the content of the website. 79
Character Evidence: Whether social media evidence is improper character evidence Evidence of the person s character or trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion. 80
Hearsay: Most of the information attorneys will seek to admit from social media websites (other than photographs) will qualify as out-of-court statements potentially subject to the hearsay rule. However, because these statements are typically admissions by a party opponent, are not offered for their truth, or fall within a hearsay exception, they are generally not excluded under the hearsay rule. 81
A statement is not hearsay if it is offered against a party and it is the own party s statements, in either an individual or representative capacity. A party cannot offer its own out-of-court statement as admissions. 82
Even if a statement from a social media website is not an admission by a party opponent, it may me admissible because it is not offered for the truth of the matter asserted. To prove that they had knowledge of the information, or to explain what they did after having heard it. An out-of-court statement that is offered to show its effect on the hearer s state of mind is not hearsay and courts will admit statements from social media websites for impeachment purposes as prior inconsistent statements. 83
If the statements fall within these exceptions then they are not excluded as hearsay: Present Sense Impression; The existing mental, emotional, or physical condition; or Excited Utterance 84
Rule 902(10): Business records accompanied by a properly phrased and executed affidavit are self-authenticating under rule 902(10). Using this rule will save time for the court, parties, and businesses. Be sure to look at the rules regarding the filing time for business records affidavits. In Texas, the business records affidavit must be on file for 14 days before a trial or hearing. 85
If a business record is introduced without an affidavit, then the testimony of a custodian of records or another qualified person must be present at a hearing or trial in order to properly authenticate the documents. 86
Under the business records exception Rule 803(6), evidence becomes admissible if the person offering the evidence shows that: 1. The records were made and kept in the ordinary course of business; 2. It was the regular practice of the business activity to create such records; 3. The records were created at or near the time of the event recorded; 4. And the records were created by, or from information transmitted by, a person with knowledge who was acting in the regular course of business. 87
This rule is very broad: Business records includes reports, memorandums, records, or data compilations The requirement that the records be created at or near the time of the event recorded is based on the probability that the recorder in the particular case will be accurate in the specific entry, not so much as in the amount of time passed by between the recording and the event or act. The person with knowledge can have the facts in the business records transmitted to them as long as each person in the chain of reporting has a duty to report. The duty to report holds to ensure the accuracy and trustworthiness. 88
Questions to ask Witness: 1. Witness is custodian or other person with knowledge of the business filing system; 2. The record was made in the ordinary course of business; 3. The record was made at or near the time of the event in question; 4. In the regular course of business, a person with knowledge made the record or was furnished with the information for the record; and 5. It was the regular practice of that business activity to make such a record. 89