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The Evidence Code - The Information Gatekeeper

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This brief article is to help clients familiarize themselves with some basic evidentiary principles which act as “Gatekeepers” which may prevent a Judge from considering some information. Evidence can be confusing and frustrating at times. This information will help you understand why some information may not reach the Court and, perhaps, how to better assure the information you want considered reaches the Court.

There are, generally, two main types of evidence: Testimonial Evidence and Documentary Evidence. Evidence will have to get past the “gatekeepers” before the Court can consider it. The judge, in a family law case, acts as the “finder of fact” in every case. In (most) civil and criminal cases, this role is played by the jury. However, family law does not utilize juries and proceeds by “bench trial.”

Relevance

The first important gatekeeper to all types of evidence is Relevance. For the Court to consider your evidence, it must be relevant to an issue that is in dispute. This means that if the information offered for consideration is not related to an issue in dispute, the Court cannot consider it. For example, if you are having a hearing about a financial support issue, the Court will likely not consider material that is relevant only to child custody.

Authentication

Authentication applies to documentary evidence only. Authentication means that a foundation for the document must first be established so that the Court can consider it. The person who is offering the document must be able to prove that the document is what they claim it is. In other words, that this document is genuine and accurate. There are several ways to authenticate documents. For example, the person who created the document can testify that the document is genuine and accurate. Some documents are considered “self-authenticating.” The discovery process can also be used to authenticate documents.

Hearsay

This is the most commonly known and most misunderstood “gatekeeper.” It is also the most complex and can be a struggle, even for practitioners. The definition of hearsay is “an out of Court statement, made in Court, to prove the truth of the matter asserted.”

There are also several exceptions to the hearsay rule, discussed briefly below.

Hearsay can apply to both testimony or documents offered to the court. As testimony, this usually comes in the form of a person testifying about what another person said. Anytime a person is relaying information they did not personally obtain, there is a hearsay concern. I often tell clients if you did not personally see, hear, taste, touch, or smell it yourself, it’s probably hearsay. Hearsay can usually be identified by asking “How did you come by this information?” If the answer is that someone else told you or is anything other than “I personally experienced…”, it’s probably hearsay. In this case, the cure is straightforward enough: the person who has personal knowledge of the statement can come testify.

This often comes up in family cases when parties want to offer statements from children, friends, or relatives in court. What these people have told you outside of court, not under oath, is hearsay.

For example, if you are trying to prove that it was raining outside, you cannot say “My proof that it was raining outside is that Sally told me ‘It’s raining outside today’”. All of this may be totally true. It may have been raining and Sally may have, in fact, told you that. However, you cannot use Sally’s statement as your only evidence that it was raining. The cure would be to either have observed the rain yourself, which would then allow you to testify about the rain based on your personal knowledge, or, Sally can testify that she personally observed that it was raining.

The analysis for documents is similar. The statements made in a document were not made in court, under oath. Thus, they are probably hearsay. The fix for this, again, is to have the person who made the statement(s) contained in the document testify in court.

A common example is related to police reports and their contents. The police report was not written in court. It was written by the officer at or near the time of the incident. Therefore, it is hearsay. For example, the officer may have stated that it was raining. If you want to prove to the court that it was raining at the time of the incident, you may be inclined to use the police report. TO cure the hearsay, you must ask the police officer to testify about the statements you would like to consider. (The officer can also authenticate the document because he wrote it.)

Perhaps the officer’s observation was that a witness, Sally, told him it was raining, and he included her statement in his report. Now, there is “double hearsay” because the police report itself is hearsay and the statement Sally is also hearsay. (Remember, this is because it was made outside of court and you want to offer as proof that it was raining). Similarly, the fix is to have both the officer and Sally testify in court.

Hearsay Exceptions

There are also hearsay rule exceptions. This means that sometimes a statement can fit the definition of hearsay, but can be considered due to an exception or exclusion that applies. Some common hearsay exceptions are: 1) Admissions by a party opponent, 2) Prior Inconsistent or Prior Consistent Statement, 3) State of Mind statements, 4) Official and Business records, 5) Statements Against Interest (these are usually admissions of liability), 6) Former Testimony. This is not an exhaustive list and there are several other exceptions. These exceptions can be discussed more thoroughly with your attorney.

Conclusion

Thus, in preparing your case, drafting declarations, preparing for testifying, or gathering evidence, try to keep these three evidentiary gatekeepers in mind. If you want to offer a document or testimony to the Court consider: 1) is it relevant to something currently in dispute? 2) If it’s a document, can I authenticate it? (Can I authenticate it myself or do I need a witness to testify that the document is genuine and accurate?) 3) Is this hearsay? This one is harder and you will likely want to discuss it with your attorney. However, as a general rule, if you want to offer information to the Court that someone else knows or told you, be prepared to ask that person to act as a witness in your case.

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