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Evidentiary Challenges in Divorce Cases: Traditional and Electronic Communications Navigating the Rules of Evidence and Ways to Authenticate, Admit and Restrict Admission of Evidence and Testimony
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THURSDAY, NOVEMBER 29, 2012
Presenting a live 90-minute webinar with interactive Q&A
Steven N. Peskind, Attorney, Peskind Law Firm, St. Charles, Ill.
Anita M. Ventrelli, Partner, Schiller DuCanto & Fleck, Chicago
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Anita Ventrelli
Steven Peskind
Family Law Evidentiary Issues
Navigating the Rules of Evidence and Ways
to Authenticate, Admit and Restrict Admission
of Evidence and Testimony in a Divorce Case
Strafford Publications
November 29, 2012
To qualify, all evidence must meet the 3 “R’s”:
Relevant
Reliable
Meet Substantive Rules
6
HARPO = Admissibility
Hearsay
Authentication
Relevance
Privilege
Original Writing
(Best Evidence)
7
5 ways to present evidence
1. Witness testimony
2. Tangible exhibits
3. Stipulations
4. Admissions
5. Judicial notice
8
Rules pertaining to witness
testimony
9
Competency
FRE 601 & 602
Does the witness understand the duty to be truthful?
Does the witness have the cognitive ability to recall?
Can the witness communicate what they perceived?
10
Assuming the witness is competent, the testimony
must be reliable
Reliability is based upon:
The witness accurately Perceived what they are testifying to
The witness Remembers the subject matter
The witness has the physical ability to Narrate the event
The witness is Truthful
11
First hand knowledge
FRE 602 limits a witness’s testimony to
matters within their personal knowledge
What the witness noticed, observed, and
remembered personally
12
Ordinarily a lay witness cannot render an opinion.
But FRE 701 allows:
Collective fact opinions
A reasonable inference based upon perception
Appearance of things, identity, manner of conduct,
measurements, distance, intoxication…
Skilled lay observer opinion
Subject to a foundation, educated opinions by the witness.
Based upon life experience
Recognition of handwriting, voice, value of one’s property
13
FRE 704(a) allows opinions on
ultimate issue, custody by lay
witness or expert
14
Rules
pertaining to
admission of
exhibits
15
Authentication (FRE 901)
A foundation must be laid to show the exhibit is what it
purports to be
Authenticate by admissions, stipulations or witness testimony
Self authentication (FRE 902)
16
Authentication of writings
FRE 901(b)(4) provides that the court can evaluate
“appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken
together with all the circumstances.”
17
Physical Exhibits
Has a unique characteristic
Previously observed the characteristics
Witness identifies as the object
Identification from present recognition of
characteristic(s)
Exhibit in the same condition
18
Foundation for a Photograph
I want to show you what we have marked as Plaintiff ’s Exhibit Number 12 for identification. Do you recognize this item? (Yes)
What is it? (It is a photograph)
Do you recognize this photograph? (Yes)
When was the photograph taken (on June 23rd, 2012)
What does the photograph depict? (a picture of my arm with bruises)
Does this photograph accurately depict the bruises on your arm when the photograph was taken? (Yes)
19
Authenticating Digital Evidence
20
A low threshold for authenticity
The possibility of alteration does not and cannot be the basis
for excluding e-mails as unidentified or unauthenticated as
a matter of course, any more than it can be the rationale
for excluding paper documents (and copies of those
documents). We live in an age of technology and computer
use where e-mail communication now is a normal and
frequent fact for the majority of this nation's population,
and is of particular importance in the professional world.
---US v. Safavian
21
In a relationship with Sara Andrews
So end of a long week.. Irish drinking.. hmm I am kinda in a fiesty/pissed
off mood...I am thinking it's a rant night..
Had a great time at our sleepover last
night. Your son is adorable.
Luv u.
It’s Complicated
Jonathan Greco
Livin’ for the weekends!!!!
March 27th
Warrenville, IL Sara Andrews wrote:
Jonathan Greco
Thinks that before marriage, a man yearns for the woman he loves. After
marriage, the ‘y’ becomes silent.
Livin’ for the weekends!!!!
22
Is Sally Jones your Facebook friend?
Are you familiar with the social media website Facebook ?
How are you familiar with it?
How long have you been using it?
How do you access someone’s wall?
Describe generally what you do with the application.
What type of information is found on a Facebook wall?
What is a Facebook friendship?
How is one created?
Did you visit her wall recently?
On what date?
What did you see on her wall?
Did you print a copy of what you saw?
Here is a petitioner’s exhibit 12. Can you identify this
document?
Is it an exact copy of what you saw on the screen the day
you visited Sally’s wall?
What date did you print it?
What is the handwriting in this exhibit (initials of the
witness and the date it was printed
What does the printout depict?
Where has the printout been since printing it? (chain of
custody)
Have there been any changes to this document since the
day you printed it?
23
Authenticating
a website (social media)
Person visited the website;
Time of visit
Site maintained and current now
How accessed
Description of accessed site
names, addresses, logos, phone numbers, etc.;
Recognize based upon past visits;
Screenshot was printed from the website;
Date and time screenshot captured;
Screenshot exactly the same as seen on the computer screen;
Printout has not been altered or otherwise changed
24
Authentication of e-mail
• Identify the email
• Establish date of message
• Identify address of sender or recipient
• Witness recognizes the email and how they got it
• Show any personalized markings (corporate logo, e.g.)
• Specify contextual information (response to an earlier e-mail
25
Authentication of text messages
• Context of the message:
• (why it was sent, its purpose, earlier discussions on a topic of controversy, etc).
• Knowledge of phone number sent to or received from;
• Identification of image of actual sent text;
• Showing this is accurate reproduction of the actual text etc.
• Use of a transcript, including procedures of making it
• (transcript prepared based upon the actual text, reviewed by the sender and it accurately reflects the actual text);
• Testimony regarding any responsive text received or verbal acknowledgement by sender
26
Original writing rule (aka The best evidence rule)
27
Use of originals
Governed by FRE 1001-1005
Rule requires the use of an original writing to prove content if the
content is at the core of the case
Applies to photos, recordings and computer data
Duplicates are usually allowed
Unless “ a genuine question is raised about the original’s
authenticity or circumstances make it unfair to admit the
duplicate.”
28
29
Definition
An out of court statement
used to prove the truth of the
matter asserted.
30
Rule Applies to both testimony and
exhibits
Non-verbal conduct can
be considered hearsay
31
Admissions are exempt due to inherent reliability
Party admissions offered by opponent only
Admissions do not need to be against interest
Prior inconsistent statements
Must be sworn
Non-hearsay
Not offered for the truth of the matter asserted but to establish
notice, knowledge, the impact on the observer etc.
Exemptions
32
Exceptions
Federal Rule of Evidence 803(1) — present sense impression;
Federal Rule of Evidence Rule 803(2) — the excited utterance;
Federal Rule of Evidence 803(3) — then existing mental, emotional, or physical condition;
Federal Rule of Evidence 803(4) — statement made for the purpose of medical diagnosis or treatment, and
Federal Rule of Evidence 803(5) — recorded recollection.
33
