An Evidence Code Primer for Family Law Attorneys Part Ii: Testimonial Evidence
| Jurisdiction | California,United States |
| Author | Hon. William J. Howatt, Jr. (Retired) & Stephen D. Hamilton |
| Publication year | 2018 |
| Citation | Vol. 40 No. 3 |
Hon. William J. Howatt, Jr. (Retired) & Stephen D. Hamilton
Hon. William J. Howatt was appointed to the El Cajon Municipal Court in 1979 by Governor Edmund G. Brown, Jr. and to the San Diego Superior Court in 1987 by Governor George Deukmejian. In the Superior Court he served as Presiding Judge of the entire Court in 1996 and 1997, on the Appellate Division of the Superior Court, and culminated his career on the bench as Supervising Judge of the Family Law Division. His legal career included over ten years as a Deputy District Attorney for the County of San Diego, including felony trials, the Fraud Division and the Appellate Division. Judge Howatt frequently lectures on Evidence law and has designed a special three-evening Evidence program for family law attorneys. He retired from the Bench in December of 2006. Since retiring, he does arbitrations and mediations with JAMS in San Diego and acts as a privately compensated temporary judge.
Stephen D. Hamilton has been an attorney for 22 years, with a practice devoted almost exclusively to family law for 20 of those years. He has been a Certified Specialist in Family Law since 2004. He is currently a member of the California Family Law Executive Committee, for which he is the Legislation Chair. He is a member of ACFLS and serves on the ACFLS Outreach and Amicus Committees. He is also chairperson of the San Luis Obispo County Family Law Section.
When litigating family law matters, the primary way in which attorneys can present their case is through the testimony of witnesses. This article, the second of a three-part series, discusses the specific Evidence Code sections to be considered when introducing or objecting to testimonial evidence. However, a prefatory discussion of what constitutes testimonial evidence, as well as how the Rules of Court, the Family Code, and case law affect the introduction of testimonial evidence, is warranted.
Testimonial evidence is received through the statements made by a competent witness, under oath, during a judicial proceeding. A witness is a person who has personal knowledge of an act, incident, event, statement, or transaction and who is permitted to testify under oath as to their recollection of that act, incident, event, statement, or transaction. As set forth in the Code of Civil Procedure, "A witness is a person whose declaration under oath is received as evidence for any purpose, whether such declaration be made on oral examination, or by deposition or affidavit."1 We usually assume during trial that means live testimony because of the right to cross-examine a witness. However, in Thorpe v. Thorpe, 75 Cal.App.2d 605 (1946), the Court allowed the introduction of a party's deposition as their testimony when they failed to appear for trial.
Elkins2 made clear parties have the right to introduce live testimony in a family law trial. A local court's rule limiting testimony and requiring the use of affidavits was expressly overruled and triggered a tidal wave of reform within family courts governing evidence. One of the specific consequences of the Elkins decision and the subsequent reforms recommended by the Elkins Family Law Task Force was the enactment of Family Code section 217, which mandates that courts "receive any live, competent testimony that is relevant and within the scope of the hearing...."
California Rules of Court, rule 5.119 specifies the factors to be considered by the trial court in making a finding of good cause to refuse to receive live testimony. They include whether a substantive matter is at issue, whether material facts are in controversy, and whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses.
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Still undecided is the viability ofthe Reifler3 decision, cited in support of the proposition that declarations are admissible testimonial evidence during hearings on requests for orders. In a decision published this year, In Re Marriage of Swain, the Court of Appeal stated:
In this case, we also need not answer the general question whether section 217 makes written declarations submitted in connection with family law motions subject to the hearsay rule in every case. We conclude that, at a minimum, the hearsay exception in Code of Civil Procedure section 2009 does not apply to a motion to modify a family law judgment where, as here, the opposing party seeks to exclude the declaration on the ground that he or she is unable to cross-examine the declarant. In that situation, the opposing party's objection not only seeks to exclude hearsay evidence, but also amounts to an assertion of the party's right under section 217 to 'live, competent testimony that is relevant and within the scope of the hearing.' (Id., subd. (a).) The opposing party's live testimony is necessary for cross- examination.4
As the cited passage makes clear, if declarations are still viable in family court, they can only be considered if the opposing party is given the opportunity to cross-examine the declarant.
Family Code section 271 imposes the requirement that all non-party witnesses be identified in a witness list which includes a brief description of the expected testimony. That witness list must be served before the hearing—if not, "the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."5 Witness lists required by Family Code section 217(c) must be served along with the order to show cause, notice of motion, or responsive papers in the manner required for the service of those documents. If no witness list has been served, the court may require an offer of proof before allowing any nonparty witness to testify. Judicial Council Form FL-321 is an optional "Witness List" form that may be used to satisfy the requirements of Family Code section 217(c).
Under Evidence Code section 765, the court is required to exercise "reasonable control" over the manner in which witnesses are questioned. That control is to be exercised to achieve two goals:
1. To make the questioning as rapid, and distinct, as necessary to effectively ascertain the truth; and,
2. To protect witnesses from "undue harassment or embarrassment.
A trial court is authorized to "call witnesses and interrogate them the same as if they had been produced by a party to the action...."6 This can occur on the court's own motion. Parties are still entitled to object to questions asked during this examination. While you are highly unlikely to have an objection to a question posed by the court sustained, the objection still needs to be made so it is not waived on appellate review.7 Parties also have the right to cross-examine witnesses called by the court, although the court directs the order of cross examination.
Preliminarily, counsel should address the competency and qualification of the witness to testify. Witness competency is addressed in Evidence Code sections 700 through 704. Age is not a factor in determining a witness's competency.8 Instead, a witness must be able to express themselves in a manner that can be understood, either directly or through an interpreter.9 The witness must also be capable of "understanding the duty of a witness to tell the truth."10
Except for expert witnesses, a witness must have "personal knowledge of the matter" about which they are testifying.11 "Personal knowledge" means a present recollection of an impression derived from the exercise of the witness' own senses.12 That personal knowledge must be shown before the witness can testify concerning that matter, although that requirement can "be shown by any otherwise admissible evidence, including their own testimony."13 "'[T]he rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact' is a 'most pervasive manifestation' of the common law insistence upon 'the most reliable sources of information.'"14
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When receiving or excluding testimony from children, "the court shall take special care to protect [the child witness] from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions."15 Questions to children must be age appropriate and consider the child's cognitive level. If they are not, a court can "forbid the asking of a question which is in a form that is not reasonably likely to be understood by a person of the age or cognitive level of the witness."16 For this reason, a trial court can permit the use of leading questions when examining a child.17 The Evidence Code also specifically recognizes that, "under special circumstances where the interests of justice require," leading questions can be asked on direct or redirect.18 Counsel in this case should argue that this exception is specifically applicable to children witnesses.
A voir dire examination must be conducted to determine a child's competency to testify, so the court can discern the child's degree of understanding and intelligence. That decision cannot be made merely because of a child's age. "It follows that the child's extreme youthfulness was not, per se, sufficient to exclude him from the witness stand. There is no arbitrary age limit under which the testimony of a child is automatically rejected."19 In Bradburn, the child in question was 3 years and 3 months old at the time of the accident, which he observed, and 5 years old at the time of the trial.
When dealing with a child or dependent person with limited cognitive abilities counsel, whether on direct or cross-examination, should be very careful to avoid any improper...
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