Family Law Trial and Evidence Practice Pointers
| Publication year | 2021 |
| Pages | 0026 |
By Ashleigh M. Dunham and Sandra E. Gregory
Family law is full of emotion and drama mixed in with biased facts and evidentiary pitfalls. Whether you are in the midst of an original divorce or attempting to modify custody or alimony, it is important to understand the Rules of Evidence to effectively represent your client. In Alabama, family law cases are heard by bench trials only. Your entire case depends on your judge. The easiest way to help that judge help you is to understand the basics of evidence as it relates to family law cases.
Foundation and Authentication
The first step to presenting exhibits is laying the foundation. As a practitioner, you build suspense for the court by providing the court with why the evidence is important or relevant to the case.1 Foundation is merely the threshold for getting evidence into the record. In fact, most foundational objections go more to the weight of the evidence than to its admissibility.2
Foundation includes authentication. In order to authenticate an exhibit, you must provide the court enough information to show that your evidence is what you are claiming it to be.3 You can often achieve this by a witness who can attest to the authenticity of the exhibit by testifying as to their personal familiarity of it.4 Examples of exhibits that are often used in family law cases are items such as photos of excessive alcohol use (i.e. a party passed out surrounded by liquor), photos of a nice home that is clean and organized, or photos of the children appearing happy and healthy when a parent is accused of abuse. Photographic evidence is heavily used since your client does not need to be present to authenticate the photograph but merely give testimony to substantiate what the photo depicts.5 They do not have to be the photographer.6 It is the other side's responsibility to cross examine your witness as to why the court should give that evidence less weight.
Self-authenticating documents7 are very helpful. They save time by alleviating the need of lengthy authentication testimony. They allow you to quickly make a point before the court. Note that you still must overcome other evidentiary barriers such as hearsay-which will be discussed below.8
A growing trend in family law cases is the introduction of social media, email, text messages, and other electronic messaging mediums. The Alabama Court of Criminal Appeals has explained that circumstantial evidence is enough to admit electronic messages explaining that "the e-mail address, cell phone number, or screen name connected with the message, the content of the messages, facts included within the text, or style of writing; and metadata such as the document's size, last modification date, or the computer IP address."9 In a custody modification appeal, the court of civil appeals explained that "it was important that there be evidence that the e-mails, instant messages, or text messages themselves contained factual information or references unique to the parties involved"10
Different courts handle text messages differently. The safest method to authenticate is to allow either the sender or recipient to authenticate the message through their testimony.11 There are several apps that will download a text message into a format that makes it easier to show the range of dates in which the texts were sent, a transcript of the text messages, and the phone numbers used to communicate which show the basic information needed to authenticate so that you can focus on the communication rather than your foundation. Before you introduce the exhibit, have your witness explain why the exhibit is important and how you have provided the conversation for the court (i.e. a transcript or screen-shot). Here are suggestions:
Emails
• Do you recognize this exhibit marked as defendant's X?
• What is the date of the email?
• What is the email address of the sender or the recipient?
• How did you receive it?
• Are there any personal markings that indicate who the sender was?
• How do you know who the sender is? (Have the witness explain the circumstantial evidence they use to determine it was the sender they believe it to be, such as tone, follow-up conversations, routine communicating through this medium, actions that followed, etc.)
Text Messages and Instant Messages
• Do you know Jane Doe's phone number? What is it?
• Are you familiar with Jane Doe?
• Do you communicate with her on a regular basis (have you in the past)? How?
• When was this conversation?
• [Show the witness the text.]
• Do you recognize this?
• What is it?
• How do you know it is Jane Doe?
• What is the name listed?
• How is she listed in your phone?
• What is the phone number?
• Is this a fair and accurate representation of the conversation?
• Has this been altered in any way?
• [Offer into evidence]
• Can you read me the conversation you had with Jane Doe?
Social Media
• Have you visited [social media platform]?
• When it was visited?
• How the site was accessed?
• How do you know this is the website you're referencing?12
• Have you visited this site before?
• [Provide screen shot that was printed from website]
• What is the date and time that the screenshot was captured?
• Is this what you witnessed when you went to this website?
• Has it been altered or changed in any way since you first witnessed it?
• Are you familiar with Jane Doe?
• How do you know her?
• Are you friends with her on social media?
• What platforms?
• Is it currently active?
• Would you recognize it if I showed it to...
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