Recent Posts in Evidence Category

An Overview of the "Hearsay Rule" and Its Applications
to Divorce and Family Law Proceedings

• Party admissions

Admissions are described above.

• Declarations against interest

 A nonparty's out of court statement may be admissible as proof of the matter asserted if certain threshold criteria can be established. The declarant must be unavailable to testify as a witness; they must be shown to have had personal knowledge of the subject matter; the statement must have been against the declarant's interest when it was made (i.e., something that was damaging to them or their interests); and the statement must have other indicia of reliability that the court finds warrants admission.

• Former testimony

Where the declarant has previously testified under oath in another action or proceeding, that testimony may be admitted if certain conditions are met. 

• Prior consistent and inconsistent statements

A witness' out of court statement may be admitted as proof of the matter asserted if it is inconsistent with the witness' testimony at the current proceeding. For instance, assume that "Fred" accompanied Mark, in the example above, to the bank to remove $20,000 from the safe deposit box. Fred confirmed this to wife's best friend Marge a few days after Mark made his admission to wife that he took the money. Wife now wishes to corroborate her story of what Mark said to her and did, because - after all - Mark will deny ever having said or doing any such thing, and this leaves the question open for the trial court to the extent it is a "he said, she said" situation between the two parties. Wife has the burden of proof on the issue, so reliable corroboration may be critical to swinging the judge into finding the money existed and was taken by Mark. Fred is not a party to the action, so his statement does not qualify as an "admission." Fred is called to the stand and is asked "did you accompany Mark to the bank and witness him open the box and remove $20,000?"  [Note - this is objectionable as a compound question, and would be asked the same thing in a series declarative questions to overcome that objection]. Fred answers "no way, I don't know what you are talking about." Wife next calls Marge as a witness, and she recounts what Fred said to her - i.e., that he accompanied Mark, and what Mark did. Fred's earlier, out of court statement to Marge, directly contradicts his trial testimony, and so comes into evidence as a prior inconsistent statement.

• Spontaneous declarations

This exception permits out of court statements to prove the truth of the matter asserted to come into evidence, when certain factors exist that courts assume indicate reliability can be established. Spontaneous declarations purport to narrate or describe or explain an act, condition or event that was witnessed by the declarant. The statement sought to be admitted must have been made "spontaneously" while the declarant was under the stress or excitement caused by such a perception.

Wife and Mark are having an argument at home. Paternal grandmother rents a room. She observes wife slap Mark. That grandmother immediately calls her best friend, Ruth, to ask what she should do - and she is crying and clearly distraught and describes what she saw. Now weeks later, grandmother has returned to her home in Florida and is not available to be called as a witness for Mark at Mark's DV hearing. However, Ruth is. Ruth takes the stand and Mark's attorney attempts to get into evidence what Mark's mother said. It is hearsay. However, Ruth's testimony about what Grandma said may come into evidence as a spontaneous declaration.

• Statements of physical or mental condition

These are distinct from the issue that arises when out of court statements are offered as circumstantial evidence of the declarant's state of mind, discussed above. Instead this exception relates to present or past physical and/or mental conditions or states.

• Business records

This can be a very important exception to know. Business records are admissible for the proof of what is contained in them (a) to prove the occurrence or existence of an act, condition or event recorded in the business record and (b) to prove the nonoccurrence or nonexistence of an act, condition or event not recorded in the record. There are requirements that must be met, which are contained in Evidence Code sections 1271 and  1272.

For instance, wife in our safe deposit box example subpoenas the bank's records to show that Mark accessed the safe deposit box days before separation. The bank produces the sign in sheets containing Mark's signature. This sign in sheet is hearsay - it is being offered to prove the truth of the matter asserted, that Mark accessed the box - which is circumstantial evidence that something was in it that might have been removed. Assuming a proper foundation is laid, the records come into evidence over the hearsay objection as "business records."

• Official records

__________________________

• Is the evidence you want to admit relevant to some issue in the proceedings? If not, it will not be admitted and no further analysis is required.
• Has proper foundation been laid to otherwise get it admitted?
• Is it hearsay?
• If it is hearsay, what exceptions apply?
• Even if it is other admissible, should it be excluded on some other ground set forth in Evidence Code section 352?

Good luck out there!

Marital Privileges Not To Testify Against Spouse or Domestic Partner

Sometimes married persons who are in litigation with third parties (i.e., former spouses and co-parents) are asked to reveal communications in deposition, through written discovery, or at trial between them that are protected from disclosure. It may help you to know when to assert an objection to such inquiries, and how to avoid answering such questions altogether.

California recognizes both a "testimonial privilege" and a privilege protecting "confidential marital communications". These privileges are codified in Evidence Code section 970, Evidence Code section 971 and Evidence Code section 980. They are distinct privileges, and the one that most often applies to family law are sections 970 and 980, where one's current spouse is embroiled, for instance, in litigation with a former spouse (or in paternity cases, the other parent). These privileges apply equally to registered domestic partners pursuant to the general application of Family Code section 297.5. Limitations on the marital privilege are generally found at Evidence Code section 972. 

These privileges serve two important public policy goals: 1) to preserve and promote marital harmony and 2) to encourage and preserve confidences between husband and wife. Essentially, the assumption is that society has more to lose from the disruption of the marital relationship that might be caused by encouraging spouses to testify against one another, or to disclose secrets, than it has to gain by learning what was said. This makes sense - however, unrepresented parties often lack an understanding about their rights and privileges, which can be waived if not properly asserted. Hence today's Blog.

The testimonial and confidential marital communication privileges require the existence of a valid marriage or domestic partnership. Keep in mind that they do not apply between you and the spouse or domestic partner whom you are litigating against - these privileges cease to exist as between parties to a dissolution or related family law proceeding. In addition, where no valid marriage existed (i.e., a marriage that was void at its inception (bigamous, incestuous, lack of proper solemnization and the like)), the privileges never arise. In contrast, where a marriage is voidable (minority, fraud, physical incapacity) the privilege exists unless and until a final judgment of annulment has issued.

Testimonial Privilege

• The privilege applies only during existence of valid marriage or domestic partnership
• A married person has a privilege not to testify against his or her spouse in any proceeding. Evidence Code § 970.
• A married person, whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party without the witness spouse's prior express consent. Evidence Code § 971.
• Both testimonial privileges belong to the witness spouse.
• The 970 privilege permits a spouse to refuse to answer questions requiring testimony about the other spouse, whether or not they are a party to a proceeding.
• The 971 privilege only permits a spouse to refuse to answer (or be called) in proceedings where the other spouse is a party.
• The 970 privilege belongs only to the spouse who has been called as a witness - in such cases (i.e., where the other spouse is not a party) the other spouse has no standing to prevent their spouse from voluntarily testifying.
• The 971 privilege belongs to both spouses. Thus, even if spouse B is willing to answer questions about spouse A in pending proceedings involving spouse A, spouse A can assert the privilege to bar the testimony that otherwise might have been obtained.
• Once the marriage is terminated by Final Judgment (for instance, even a "status termination" on bifurcated proceedings where other issues remain reserved and therefore open - like property division or custody), the privilege evaporates (but see the confidential marital communications privilege below).
• The privileges do not apply to proceedings brought by one spouse against the other.
• They do not apply to certain types of hearing, including competency or commitment/conservatorship proceedings (since alleged mental or physical condition may be in issue).
• These privileges do not apply to juvenile court proceedings. [EC section 972(d)].
• Trial courts are not required to inform spouses of their rights not to testify - being uninformed and then giving testimony that could have been avoided does not operate to permit the testimony to be stricken.
• There are critical exceptions to the privilege that apply in family court proceedings [EC section 972(g)]. These include:
  • A married person cannot claim the testimonial privilege to refuse to answer questions about issues relating to income, expenses, assets, debt and employment of either spouse.
  • An action brought against the spouse by a former spouse to establish, modify or enforce a child, family or spousal support obligation arising from the marriage to the former spouse.
  • An action brought against a spouse by the other parent to establish, modify or enforce a child support obligation for a child of a nonmarital relationship between the parties.
  • In proceedings brought by a guardian of a child against a spouse relating to a child support obligation.
• Note that the testimonial privilege in the exceptions above (disclosure of income and assets, etc.) remains intact if other information is sought beyond the scope of these finance related exceptions, as to the requested disclosure of such other information.
• There are two exceptions in which a spouse may be deemed to have waived their marital privilege to refuse to testify or be called as a witness:
  • Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his or her spouse is a party, or who testifies against the spouse in any such proceeding, waives their section 970 and 971 privileges in those proceedings for all purposes. 'Erroneously compelled' means under circumstances indicating "irresistible force", for instance where a judge orders the spouse to answer the question.
  • A married person cannot assert these privileges in a civil proceeding which they themselves have brought, or are defending, for the "immediate benefit" of his or her spouse, or both jointly. In such cases the privileges are effectively waived. [Evidence Code § 973(b)]. A common example would include an action for personal injury damages against a third party.

Confidential Marital Communications' Privilege

Absent a waiver or an exception, a married person, whether or not they are a party to proceedings, has a privilege to refuse to disclose confidential communications between the married person or their spouse made while they were married or domestic partners. Evidence Code section 980. 

Here are some general points to understand as to the limitations of this privilege:

• There must be a valid marriage or RDP at the time of the communication.
• This privilege survives the dissolution of the marriage itself.
• Each spouse or former spouse holds and can assert the privilege.
• Only "confidential communications" are exempted from disclosure. A "communication" means a written or oral statement or act intended to convey a message.
• As to the existence of assets and debts, it doesn't prevent disclosure of the fact of the existence of same - it only protects communications about those subjects.
• The communication must have been made in a setting that reasonably implies a confidence. There is a presumption that communications between spouses were made in confidence, but that presumption can be overcome upon a proper showing.
• If a third person was present, then there may not be a presumption that the communication was intended to be "confidential" or the presumption may be rebutted.
• The privilege will not exist where the party asserting it is abusing the "mantle of confidentiality", for instance where it is part of an assault by one spouse upon the other.
• It cannot be asserted where its application would serve to enable or aid a crime or fraud that is being attempted (although the privileges under EC sections 970 and 971 may apply).
• It does not apply to proceedings against the spouses themselves, and there are other limited exceptions (juvenile court proceedings, for instance).

Thurman Arnold, CFLS

Part One

Q. My ex-husband and I are involved in a bitter custody dispute. I recently realized he had not changed his Email password, and so I was able to enter his account and review his emails. I found evidence that proves he is using drugs, and I think this puts my son at grave risk. How should I best present this evidence to the Family Law Judge?

A. In my opinion you don't, and I'd advise you to stop snooping his emails no matter how important you think it is for the safety of your child. Beyond the fact that you expose yourself to a civil lawsuit for invasion of the Father's privacy, and have violated various State and Federal laws, you run a couple of other serious risks that may adversely affect the custody outcome you seek - these far outweigh whatever advantage you think the information gives you.

Most importantly as it relates to custody under California law, invading someone's email account and sharing what you find quite arguably constitutes a form of domestic violence. This was established two years ago in a case entitled Marriage of Nadkarni (2009) 173 Cal.App.4th 1483. If permanent restraining orders are issued in a domestic violence action that your ex could choose to file against you when he learned what you'd done (i.e., when you submitted the emails as exhibits filed with the court), a smothering presumption arises against you under  Family Code section 3044 "that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011." In other words, if the family court granted orders against you as a result of this conduct, you may end up assuring you lose your case and hence the ability to safeguard the very persons whom you hope to protect.

In Nadkarni the Husband gained access to the wife's email account and attached copies of her private email between she and others (including her attorney) to show that Mother had lied to Child Protective Services, and that she'd told the children to lie to him as well - and more. Husband argued he had "no choice" but to use these emails because his "kid's safety was at stake" and that he'd accessed the accounts "in sheer panic and desperation" to protect the children. Sound familiar?

Upon discovering this Wife immediately sought temporary restraining orders pursuant to Family Code section 6320.  That section permits courts to issue DV orders to stop behavior that amounts to "disturbing the peace." She alleged that she had never authorized Husband to use the account or given him the password. She also claimed that Husband was using the information to stalk her, and that his activities made her fearful because he'd beaten her badly during the marriage - and was criminally convicted of same.

While a temporary order was issued upon her application, at the hearing for permanent restraining orders her application was denied. The trial court felt that this behavior did not rise to the level of what should be restrained under the Domestic Violence Prevention Act.

Wife appealed and the trial court's interpretation of FC §6320 was reversed. The appellate court ruled "we believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase 'disturbing the peace' in section 6320 may include, as abuse within the meaning of the DVPA, a former husband's alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails." The case was ordered sent back to the trial court to hold a full hearing on the wife's claims. I imagine she won that hearing.

Family law disputants are often acting in "sheer panic" but the ends do not justify the means. You risk blowing yourself up if you attempt to use the material you obtained in any way. Destroy it. I suppose we could come up with exceptions or justifications under extreme facts, where for instance a conspiracy to commit a murder or some other major crime was uncovered, that might trump the prohibition against this type of behavior. But the value of what you have here is insufficient to justify your actions, and the evidence would likely not be admitted anyway over an objection. Even if your husband does not press the advantage you potentially give him by seeking DV orders against you, most judges (and hopefully a lawyer advising you) will question your decision-making abilities once you expose what you did. A lawyer would be ill-advised to submit these emails to the court on your behalf, not merely tarnishing his own reputation but possibly exposing himself to civil liability as well.

Resist your panic, and resist your curiosity. These disputes dial people into temporary insanity and reactivity, and often the result winds up bringing about the very thing they most fear (this dad gaining primary physical custody and reducing your custodial timeshare). There are better ways to skin this cat.

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

• Subpoeanas duce tecums - C.C.P. § 1987
• Form Interrogatories - C.C.P. § 2030.030
• Specially Prepared Interrogatories - C.C.P. § 2030.030 and 2030.050
• Production and Inspection Demands - C.C.P. § 2031.030
• Requests for Admission of Truth of Facts or Genuineness of Documents - C.C.P. § 2033.010
• Depositions - C.C.P. § 2025.010
• Expert Witness information exchanges - C.C.P. § 2034.010

The statutory references I provide here for the various discovery modalities are illustrative only  - if you are representing yourself or have a lawyer but want to be educate yourself nonetheless you may want to review other 'neighboring' code sections.  I will try to hit the most important for you.