Most people don’t expect the Evidence Code to apply in family law. The fact is, it often does. Even when standing before a judge who takes an informal approach (i.e., they allow evidence to be considered without meeting all legal criteria), general knowledge of the rules of evidence can provide a legal advantage in your divorce or other family law action.
Why? Well, many judges review evidence (out-of-court statements, school records, agreements, police reports, financial records, property titles, proofs of payment, social media posts, photos, and so on) without a proper foundation unless the opposing litigant or lawyer objects.
Reasons to follow evidence rules
If an objection is legal, it becomes the opposing litigant’s job to find an evidence “exception” or explain to the court why the objection is improper. However, if you can’t do this, the evidence comes into play whether you think it’s fair or not.
Another reason to follow the evidence rules is to create a “clear record.” In other words, while your family law judge may be a bit lax when it comes to the Evidence Code, an appellate judge may not.
If you don’t object to the introduction of evidence, improper conduct, or illegal statements, you lose the ability to challenge that behavior. This is really important if your matter proceeds to an appeal. (An appeal is when someone applies to a higher court for the reversal of a decision made by a lower court.)
In this article, we highlight important evidence rules everyone should know before they walk into a courtroom.
1. Social media
If you want to use a statement made via “instant chat” (such as Yahoo messenger, Facebook messenger, or email), save and print the entire thread. It may potentially be used as an exhibit in court via a declaration or 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
If the opposing party introduces evidence you believe is irrelevant, speak up.
Evidence must be considered “relevant” for the court to admit it over objection. Many litigants try to introduce evidence of their spouse’s affairs or other bad behavior. However, unless it proves or disproves a disputed fact, it can be excluded.
Additionally, the court may exclude evidence if the possibility of prejudice outweighs the probative value. For example, your ex’s drug or alcohol use may be excluded if the only issue at hand is the division of property. However, the evidence may come into play if the issue at hand is physical custody of the children.
An objection to irrelevant evidence might sound like this: “Objection: Relevance. Even if what they say is true, it has no bearing on the issue before the court.”
Or this: “Objection: Relevance. The testimony is centered around a fact that is not in dispute.”
When lawyers refer to “writings,” they’re talking about a host of documentation types: photographs, emails, letters, words, pictures, and such. These documents can be crucial to a family law case.
Perhaps you have bank statements proving you gave financial assistance when your spouse says you didn’t. Perhaps you have a photograph of your ex drinking and partying when they said they were sober. Maybe you have an email from your spouse expressing their intent to end the relationship and live separately.
All of the above 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,” their behavior could certainly help your case.
To get these “writings” into evidence over objection, you must authenticate them in one of the following ways:
- Establish a chain of custody: In short, this means you must show a record of all the people (a “chain of custody”) who maintained unbroken control over the writing or video.
- Prove that your writing or video represents what it allegedly portrays: In other words, your item must back up your claim.
- Prove that your writing or video assists the court in finding the truth: This means your writing helps establish a fact necessary to prove your case (instead of misleading the court).
Rules about photographs
If you represent yourself and want to show a photograph as evidence, provide the following information:
- Who took the photograph and how you know who took it
- When the photograph was taken and how you know this
- The identities of the people in the photo
- What the photo purports to show and its accuracy (For example, a photo of your husband snowboarding when he said he was too sick to work)
5. Objecting to a Writing
What happens if the opposing party introduces a writing you believe to be prejudicial to your case?
If you know the proper objection, you may be able to get it excluded from evidence. (That is, the judge excludes the writing from their decision-making process.)
Here are some examples of objections to writings:
- Not properly authenticated: Did your ex introduce an email without a date? Did they fail to include the entire thread?
- No personal knowledge: Is the opposing party testifying about an event they did not witness?
- Hearsay: Are written or verbal statements made by someone other than a testifying witness offered as truth? (For example, “Her sister told me she’s never home with the kids.”)
- Ambiguous or misleading: Are you being asked a question about a document or video that doesn’t make sense? Was the question designed to elicit a response that clouds the truth?
- Irrelevant: Is the writing relevant to the issue at hand?
- Privileged: Has a document between you and your lawyer or a medical record between you and your doctor been improperly presented in court? As a litigant, you enjoy several privileges. However, if you don’t object to the sharing of privileged information right away, you could waive the privilege. The offending document, along with testimony and other offending documents, could then be admitted to the court. If this happens, you will want to object that the information is “attorney/client privileged.”
Evidence is tricky, even for experienced attorneys. But it’s not rocket science, and it can certainly be learned.
A good attorney will alert you to the evidence-related issues you may face and help you strategize ways to overcome objections and prove your points.
At Hello Divorce, we help you navigate evidence basics so you can present the most important evidence to your judge.