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213 - Knowing The Rules of Evidence so the Judge Rules In Your Favor - Part 2

213 - Knowing The Rules of Evidence so the Judge Rules In Your Favor - Part 2 Image

10/28/2021 10:00 am

The rules of evidence can be complicated. But, a failure to understand them could result in a loss in Court when you should otherwise win. In this show, Leh and Todd tackle this difficult subject and break it down into bite sized, understandable nuggets. This is part 1 of a 2 part show.

Transcript

Leh Meriwether:

Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. We are your co-hosts for Divorce Team Radio. A show sponsored by the divorce and family law firm of Meriwether and Tharp. You learn about divorce, family law, from time to time, even tips on how to save your marriage, if it's in the middle of a crisis. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. Well, Todd, welcome back.

Todd Orston:

Thank you. Thanks for inviting me back onto the show. We've done 200 episodes. Very kind of you.

Leh Meriwether:

Well, I know you're excited again. You couldn't sleep again.

Todd Orston:

I'm like a puppy with a new toy. All right, I'm not that excited. But my tail is definitely wagging. I am definitely looking forward to finishing up a show on something that we as attorneys deal with all the time, evidence, and more specifically, we're dealing with the issue of hearsay. I'm sure if you watch any TV, you've probably seen some legal show where someone yells that word. Most of you probably understand, to some degree, what it means. It's an out of court statement made to basically prove something in court, and that person who made the comment isn't there to be cross examined.

But what you don't understand is how complex that rule is, over the years how it has evolved into this hearsay monster. There's just multiple parts to the rule and exceptions, in terms of what can come in and when it constitutes hearsay. Even if it is hearsay, we're going to let it in. That's what we're trying to go into.

Leh Meriwether:

If you have missed any of the prior episodes, if you're catching us for the first time, you definitely want to go back and listen to the last few episodes, we've been talking about evidence, why it's so important to understand it. We're talking about how you can look at it as simplistically as you can, so you don't get overwhelmed by it, because it can become overwhelming.

Heck, I've seen lawyers in the courtroom, with blank stares, going, "Oh my gosh, I forgot how to get this piece of evidence in." There's a lot of rules out there, they can become... Then there's exceptions to the exceptions, sometimes. It can be complicated, but I don't want you to get overwhelmed, because there are a lot of... We're talking about a lot of different ones, but in family law, there's usually a few core that you see with a great level of frequency. Those are the ones you just need to focus in on.

We talked about some of those last week. If you missed that one, definitely go back and listen to it, because we don't want you to get overwhelmed, and if you start to get overwhelmed, and you have a court appearance coming up, hopefully you have a lawyer. Even if you have a lawyer, it's good to understand these rules, because then you know that, hey, I have some evidence that I need to share with my lawyer that I don't have personally, we may need to subpoena a witness to come testify to, because I can't testify to it myself. That's important.

If you don't have a lawyer, go meet with a lawyer, talk to them about what kind of case you're going to present in court. Hire them just for a consultation, you don't have to have them come to court, but they can help you navigate the rules of evidence, if you have a piece of evidence that you're concerned, you can't get in, so the judge can consider, the judge or the jury. There's only two states in Georgia, we have jury trials, and family law cases most states don't. So, I throw that out there.

That's a quick recap of where we are. Before we get started into the other exceptions we didn't cover the last episode. Here's something. If you were listening to last episode, and getting overwhelmed and going, "Oh my gosh, there's no way I'm going to be able to handle this at court." Here's something very important to remember, you can always go to the opposing side or opposing counsel and talk about stipulating to certain pieces of evidence. For example, documents, that sort of thing. You can stipulate to documents and coming in ahead of time or certain exhibits coming in ahead of time because that can actually speed up the trial and often opposing counsel they have documents they want stipulated to as well.

Todd Orston:

Yeah. Let's put it this way, it depends on what we're talking about. If there's, let's say a police record, and you know the other side's going to want it in and you're going to want it in, especially if you understand the rules were basically... A police record maybe is not great because there are exceptions or an exception to it. But if there is some document you have a thought that everyone's going to really want this in. Instead of allowing it to potentially become a fight in court, you can go to the other side and say, "Hey, this note from this person, employee at the company, or whatever it might be, I want this to come in, will you stipulate to its admission?"

The other side might say, "Absolutely." Now, if you have a document that only serves you, or basically your side, the likelihood of the other side just going, "Oh, absolutely, you have a statement that absolutely points the finger at my client. Yep, let's let it in. High five, that's great."

That's probably not going to be agreed to. You may have to still jump through those hoops to get it admitted, you may have to think about the authentication of the document in question, if it was stated by someone and that person is available or can be available, you may have to bring them in. But the point we're talking about is there are always going to be documents, and we do this all the time, where you go to the other side and go, "Look, can we just agree, let's save some time, don't go to court, and then what should have been a 30 minute hearing turns into a five hour trial simply because we're fighting over a bunch of documents that ultimately are either going to come in, or we're going to agree that they should come in."

Leh Meriwether:

Let's say you do get an agreement with the other side, regarding a certain series of exhibits and good examples of marital balance sheet. If you can get them to agree to the numbers you have on that marital balance sheet. If you don't know what that is, a marital balance sheet just lays out the assets and liabilities of the marital estate, along with an approximate value for each one on a certain date. If you can get that all agree to, often, what you do is you turn that into what's called a pre-trial. So, it's before the trial order, that way, it's in writing and the judge signs off on it, that all these documents, they're going to come into evidence, and there's not going to be any objections to them.

Convert it into a pre-trial order, because if you don't, you can get to court and suddenly say, "Well, no, I didn't agree to that." Even though you may have an email saying they did agree to it, you didn't convert it to an order. All right, are we ready to go?

Todd Orston:

Yeah, I guess so. I'm sorry, was that not the excited response, absolutely.

Leh Meriwether:

Okay, much better.

Todd Orston:

Let's jump in.

Leh Meriwether:

All right. The next one is public records of vital statistics. So, a record of a birth, a death, marriage. If it's reported to a public office in accordance with legal duty. Again, we're talking from the Federal Rules of Evidence, and the reason we're talking about them, those aren't the ones that are going to be used in your courtroom per se. What I mean by that is, each state has its own rules of evidence. Then the federal court system, which does not hear divorces, has their own Federal Rules of Evidence. But many states around the country have adopted the Federal Rules of Evidence in order to create some level of consistency.

Now, they may adopt them with tweaks here and there, which is why it's so important for you to understand the rules of evidence in your state. But we're going on the Federal Rules of Evidence, because we know that it's more common play, or there's some commonalities there among states. Because while we're in Georgia, we know that a lot of our listeners are not in Georgia.

Okay. Public records of vital statistics. The only time I've seen a marriage certificate come in is when someone's trying to claim that they're not currently married because their spouse actually never got a divorce from their previous spouse. They introduced the marriage certificate to prove that they got married to this person over here but then never actually got a divorce from it. So, we're not married so I don't have to pay alimony.

Todd Orston:

Let me also say this, the best practice here is try and get some kind of certified, authenticated document directly from a court, as opposed to a copy of a copy of a copy, that's all wrinkled, that you had in a file somewhere. The best evidence is going to be basically just contacting the court that maintains that record and getting a certified copy from that court. I'm not saying it's absolutely necessary, and it just depends on the judge you're in front of, but it can hopefully streamline the admission of that document, because then the court's looking going, okay, it is very clear, this is a certified copy, which means it is an accurate copy directly from the court that maintains it.

Leh Meriwether:

Sometimes it's not courts that maintain it, it may be an agency.

Todd Orston:

Correct.

Leh Meriwether:

For example, the police department, they're not a court system, but somebody in their records department can certify that's an authentic copy.

Todd Orston:

Correct.

Leh Meriwether:

But a marriage certificate can be maintained at the clerk's office in the courthouse or a death certificate, same thing. Of course, the birth certificates aren't they often maintained at the hospitals, where they came from?

Todd Orston:

Yeah. I don't know exactly where they are maintained.

Leh Meriwether:

I just remember years ago, for some reason I had to get a birth certificate and I had to go back... I was born in Houston, I had to go back to Houston to get a copy of it. That was a long time ago. All right, when we come back, we're going to continue to break down the... I know we spent some time recapping everything and talking about stipulations and pre-trial orders but we're going to continue to dive into and through exceptions to the hearsay rule.

I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings, WSB. You can always check us out there as well.

Todd Orston:

Better than counting sheep, I guess. You can turn on the show and we'll help you fall asleep.

Leh Meriwether:

There you go.

Todd Orston:

I'll talk very soft.

Leh Meriwether:

Welcome back everyone. This is Leh and Todd, and we are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. If you want to read a transcript of this show, you can find it at divorceteamradio.com.

Well, today we're talking about the rules of evidence. This is actually more particularly the many exceptions to the rule of hearsay, and we are in part two, because there are many exceptions, and they're detailed and can become complicated. We wanted to take your time going through them so that you all understand what hoops you might need to jump through to make sure that you get the evidence into court, you need to win your case.

We left off with the public records of vital statistics, what's the next one, Todd?

Todd Orston:

Well, the absence of a public record. Where the previous rule was public records, this is evidence that would relate to the absence of that public record. So, testimony or a certification under a certain rule that a diligent search failed to disclose a public record or statement if testimony or certifications admitted to prove that the record or statement doesn't exist, or a matter did not occur or exist if a public office regularly kept a record or statement for matter of that kind.

Then there's also specific rules in criminal cases or a sub part that relates to prosecutors and their obligation to give 14 day notice. Basically, what we're talking about here is, where on the flip side, existence of that record, certain records, birth, death, marriage, that are kept normally by either a county clerk, or many states have department of vital statistics that maintain it. Here, it's the opposite. You're saying, hey, this is a normal record that is maintained. But hey, it doesn't exist, so you can go to the agency, the department, the office, whatever that would normally maintain that record, and you can get something from them saying, hey, we've searched. We have searched everything, everywhere, and as an office, we are now formally stating that record does not exist.

Well, that statement from the agency or the department is hearsay, it's an out of court statement. But here's this exception that says, okay, they can come in, they can say, in writing, hey, we've looked, it does not exist, and that would be the exception we're talking about here.

Leh Meriwether:

An example might be say, well, say someone inherited a piece of property during the course of the marriage, and that piece of property was in their name, and the other party's claiming... Well, no, there was a quick claim where he quick claimed it to both of us, which wiped out the separate property claim. They're like, no, here's the quitclaim deed and they keep making this claim. So you go to the office where the property is located, and you get this record saying, yeah, there is no quitclaim deed after this recorded document.

That's always very frustrating, I'll just say that from a personal standpoint. I've had this happen before where people make these claims that just aren't true. Unfortunately, opposing counsel can't get them to stop making that claim and then you have to spend time and money going and proving something didn't exist that you already know didn't exist. But that's why they have this exception right here, for those circumstances.

Todd Orston:

Yeah. Also, some of these exceptions you have to understand, as long as there is some confidence in the agency in question, the whole point is that our system could shut down, offices could shut down. If all of a sudden an office dedicated to maintaining certain records, has to send people to court to authenticate either the existence or the lack of existence of a document, every time someone's in court, offices would shut down. It'd be like, well, we need about 1,000 more employees, because there are courts all over the state, all over the country, and we need to send people there every single time.

We just need to make a statement that, hey, we looked and the document doesn't exist, or yeah, that is the marriage certificate, but you need one of our employees to show up and sit down and say, yes, that is what we do. That is the formal document. Yes, we certified it. Yes, that's an accurate copy, and thank you very much. Can I be excused?

A lot of these rules are also practical rules, because we understand and the courts understand and the system understands. At some point, you just got to say, all right, we can't have all these people leaving work and testifying on things that really are fairly simple.

Leh Meriwether:

Right. The next one, I've never seen this before having to be used in court. Me personally, not saying it wasn't because obviously, it's here, but we're just going to go real quick. Records of religious organizations concerning personal or family history, a statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship, blood or marriage, or similar facts of personal or family history contained in a regularly kept record of a religious organization. Never had to use that before, but it's there.

Todd Orston:

Yeah, me either. I can see how there might be a religious organization that tracks a family lineage, if you will. Again, it comes down to if it is regularly kept, if this is something that you can't just go to an organization, to a religious organization that doesn't do this and say, "Hey, can you just put together a document that says I'm related to so and so?" We're talking about consistent behavior, that is done or consistent actions that are practiced by this organization in question.

Leh Meriwether:

Along that same lines, the next one, certificates of marriage, baptism or other similar ceremonies, a statement of fact contained in a certificate, made by a person who is authorized by religious organization or by law to perform the act certified, attesting that the person performed and marriage or similar ceremony or administered a sacrament and purporting to have been issued at the time of the Act or within a reasonable amount of time.

Afterwards, I'm not saying it hasn't been used before in divorce case, but I've never personally seen that. Someone having to even use that exception to the hearsay rule before.

Todd Orston:

No, I haven't seen it either. Because again, usually a certificate of marriage, the one that we're going to be concerned with is dealing with, or is going to be maintained by the county, it's going to be the legal document in question, as opposed to something issued by a religious organization. But can I see some situations where this might come up, maybe, but again, to your point, I've never seen it, I've never had to deal with it and information regarding these activities within a church, temple, whatever. Usually, we get that information in other ways.

Leh Meriwether:

Yeah. How about the next one?

Todd Orston:

The next one's family records, a statement of fact about personal or family history, contained in a family record such as a Bible, genealogy chart, engraving on a ring, inscription on a portrait or engraving on an urn or burial marker.

I needed a whole other area in my jewelry drawer for engraved rings, but that's just me and my family. That was sarcasm. I don't have any engraved rings. But again, it comes down to consistency. This can't just be someone created a ring that said something. This has to be something where you can prove, and I've never used this before, where you can prove that this is a family practice that has been practiced for years, and therefore by saying and showing that you can show that there is therefore some credibility, some believability that this is an accurate piece of information that a court can rely on. That's really what we're talking about.

Leh Meriwether:

I've never seen it before. I'm sure it might come up from time to time. Don't spend too much time on the ones where the odds of you seeing this in court are really slim. Okay, how about the next one?

Todd Orston:

Next one, records of documents that affect an interest in property. The record of a document that purports to establish or effect an interest in property if the record is admitted to prove the content of the original recorded document, along with its signing, and its delivery by each person, who purports to have signed it, if the record is kept in a public office, and the statute authorizes recording documents of that kind in that office.

Basically, what we're talking about is, you're dealing with real property, or any kind of property, but let's just say, well, it could be real estate, it could be any kind of titled property, where a record of that is going to be maintained somewhere in a public office, so, a clerk's office where real property title and all those related documents are maintained.

That basically, it's going to be kept in that public office, and there is statute that either allows, it says authorizes or requires recording documents of that kind in that office. Those types of documents, you wouldn't... This goes back to what I was saying, you may not need to bring somebody from the office to authenticate. That's the whole point here, if it's a regularly maintained record.

Leh Meriwether:

A good example is like a quitclaim deed or a warranty deed. People will introduce those into court all the time, and nobody ever objects because of this exception to the hearsay rule. Most people can identify the certified... What happens is you don't have to necessarily get this certified because they will have a book and page number. For every state I've ever seen it, a normal quitclaim deed may not count. But if you introduce one... You know what? We'll finish this up when we come back.

Todd Orston:

Hey, everyone, you're listening to our podcast, but you have alternatives, you have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.

Leh Meriwether:

If you're enjoying the show, we would love it. If you could go rate us on iTunes or wherever you may be listening to, and give us a five star rating and tell us why you liked the show.

Welcome back, everyone. This is Leh and Todd, and we are your co-hosts for Divorce Team Radio, show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. If you want to read a transcript of this show, you can find it at divorceteamradio.com. All right. Well, we're talking about the rules of evidence today, where I left off, we were talking about documents that affect interest in property.

The most common time you see this exception to hearsay rule is regarding quitclaim deeds and warranty deeds relating to real property. Often if it has to be introduced in evidence, there's a book and page number identifying where it's been registered in the county, which the property resides. When you have that on there, I've never seen anybody object to a document coming into evidence because of this exception. It's pretty standard practice. All right, well, number-

Todd Orston:

One quick thing though, we don't see it very often, because most of the time we are going up against another attorney. The attorney is probably going to withhold what I'm going to refer to as a frivolous objection. But that doesn't mean, especially if you're handling this on your own, that the other side who doesn't understand rules that thinks that they understand them, might not make trouble. Therefore, I would just say that the best practice would be, get a certified copy.

If you're walking into court by yourself, and especially if you don't have a very clean... Definitely if you have a copy, where you have written a note on it. I've seen that happen, where somebody goes into court, and they wrote a phone number on it, and they wrote something else on it, and it is no longer a clean, accurate depiction of the copy that is maintained by the court, go to the office that maintains the record, get yourself a certified, authenticated copy, and that's what you would use in court, because it will avoid any objections and problems created by the other side.

Leh Meriwether:

All right. Statements and ancient documents. This is another exception. A statement of the document that was prepared before January 1, 1998, and whose authenticity is established. Todd, that would make you an ancient document.

Todd Orston:

You know what? You know how wise I am, it's from all those years I am clearly... I like how you put it, I'm an ancient. That's what I want you to refer to me from now on.

Leh Meriwether:

The ancient?

Todd Orston:

The ancient, yes. No, 1998 I don't normally... It's a long time ago, but I don't think of that as ancient, but Okay, that's fine. Ancient documents would be defined as anything before '98. That is interesting, but the most interesting part is remember, whose authenticity is established? You have to remember, jokes aside, that it's not just, oh, it's an ancient document.

Now, what you have to do is you have to authenticate it, you have to make sure that you have the evidence necessary to show that it is an accurate depiction, or an accurate copy of the document that you're presenting to the court.

Leh Meriwether:

Well, remember, this is talking about a statement of the document. You may not be actually introducing the document itself. An example would be the US Constitution. That'd be an example-

Todd Orston:

Which was right around '97. I'm not good at math, but that's-

Leh Meriwether:

Or you're the Magna Carta.

Todd Orston:

That's right.

Leh Meriwether:

That was '96, right?

Todd Orston:

If I had a nickel for every time in a divorce case, I refer to the Magna Carta, it is-

Leh Meriwether:

You'd be broke.

Todd Orston:

I wouldn't have any money, right. Anyway.

Leh Meriwether:

All right, next one, which I actually have seen the next one.

Todd Orston:

All right, market reports and similar commercial publications. Market quotations, list, directories, or other compilations that are generally relied on by the public or by persons in particular occupations. Go ahead. I know you said that you've I've dealt with it also, but go ahead.

Leh Meriwether:

An example might be, and you typically see this with someone claiming they have a particular degree and say, I can't make any money with this degree. But then you've got... Because there's reports, there's publications that will be out there that are pretty commonplace that you can go to. I'm trying to remember, there's government organizations to keep track of this as well, and they show, hey, with a degree in this field, the average income is $60,000 a year.

Some or state dependent, meaning in the state of Georgia, this degree earns on average $60,000 a year. But nationwide, that number may be different, and that may be not something that you can rely on too well, because, a degree in New York, where the cost of living is much, much higher, you'll make more money in New York than in Georgia, on average, because of the cost of living.

There are lots of different market reports and commercial publications that can be used. That's the time I've ever seen it being used, when someone's claiming I can't make any money. But you know they have a master's degree or two or three other degrees, and you say, look, your honor, here's what this... Gosh, I'm sorry, in the moment, I completely forgot the publication I used to cross examine it with, but I'm sure it'll come back to me after the show's over.

You can do your research and find these publications easily to cross examine a person. You can even use them to cross examine an expert. Maybe you have an expert who's coming to testify about the amount of money someone that they can earn. They've had an evaluation done and say, well, after my evaluation, I think this person could earn, based on their experience, and their degrees, they can make $100,000 a year. Then you can use these publications that go, well, that's $40,000 more than the average person makes in the state. What's the difference?

Todd Orston:

That's where I've seen it most often used where someone is claiming to be an expert, or trying to throw those types of stats or whatever, opinions around where you can go, "Well, hold on one second, your testimony is X. Okay, well, are you familiar with this statement or this document or this information, or this report? Okay." You can use that to then cross examine and hopefully, well, depending on what you're trying to accomplish but potentially discredit that expert that is testifying by saying, well, that's interesting, you're saying that because there are plenty of people like you who have written these documents and they're saying something completely different.

Leh Meriwether:

All right, the next one is similar, I've seen this used before too, statements and learned treatises periodicals or pamphlets. A statement contained in treatise, periodical, or pamphlet, if the statement is called to the attention of an expert witness on cross examination, or relied on by the expert on direct examination, and the publication is established as a reliable authority by the expert's admission or testimony by another expert's testimony or by judicial notice. If admitted, the statement may be read into evidence, but not received as an exhibit.

You may have a learned treatise, it could be a book, it could be a medical journal article or something like that. One expert may say, "Yeah, this is a very reliable medical journal." Then you can use that to cross examine an expert on their opinion, if the article perhaps contradicts their opinion, or what I've seen before is, let's say an expert who is giving a valuation of a business, for instance, or a hotel which had that before and the person said, well, this hotel is worth this many millions of dollars, and he testified in his original testimony about the steps that needed to be taken to evaluate it, based on what he was evaluating.

Then I pulled up that treatise he was talking about, and it turns out, he skipped steps three and four. So, his entire testimony was thrown out. That was one of those fun cross examinations. That was one of those Matlock or Perry Mason ones where, at the end, you actually got the other side to admit, they made a mistake, and their expert opinion's worthless, which almost never ever happens.

Todd Orston:

Leh, you're so good, he admitted to murder. It was weird. It was, "I did it." "I didn't ask you to kill... What? All right." I guess that discredits your other testimony. You're good, Leh. All right, Matlock. Well, before we get into it, because I don't want to jump in before we go into a break. But again, all we're saying is, this is just going to be a quick statement of, as you can see, there's a lot here.

Much of this in a family law context isn't going to apply. But this is where I will tell you, if you think that there are complex evidentiary issues in your case, at the very least, go talk to an attorney. Whether you hire them, whether they go to court with you or not, go talk to someone, because the one thing you don't want and I've seen too often is people walk into court thinking, I've got the best evidence possible. Then they can't use any of it, because they don't understand these rules.

Leh Meriwether:

Yep, and we'll continue to break them down when we come back.

I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. You can always check us out there as well.

Todd Orston:

Better than counting sheep, I guess, right? You can turn on the show and we'll help you fall asleep.

Leh Meriwether:

There you go.

Todd Orston:

I'll talk very soft.

Leh Meriwether:

Welcome back, everyone, this is Leh and Todd and we are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. And if you want to read a transcript of this show, you can find it at divorceteamradio.com.

Well, today we've been talking about, and the last few shows we've actually been talking about evidence, because if you don't get your evidence into court, you can't win your case. The better you are with evidence, the more likely you are to actually settle your case as well. We haven't talked about that. But the more prepared you are, the more likely that you will settle your case. As odd as that may sound, it is very helpful. I've literally seen the other side be intimidated when you showed up to court with all your documents ready to go, all your exhibits labeled and all of a sudden they go, "Hey, can we talk settlement?"

They're like, "Wait, you're introducing all that evidence?" I go, "Yep." They're like, "Let's talk settlement." It's a very effective settlement tool, believe it or not. All right, I'm going to go rapid fire over a bunch of other exceptions to the hearsay rule, because that's what we have been talking about, the exceptions to the hearsay rule. I'm going to go through them rapid fire, because neither Todd and I have ever really seen the following ones used in a divorce or family law case. Not to say that they may not be used sometime. But odds are you will not encounter these. Okay, I lost my track.

Okay. Reputations concerning personal or family history, never seen that used. If for some reason you think it may be used, you can look it up and find it. Reputation concerning boundaries or general history. The only times I'm aware of that being used is in some sort of land dispute. Judgments involving personal family or general history or boundaries. These are prior judgments that were used. Again, I haven't seen that in a divorce case. Let's see, the other one is there's a catch all provision that may or may not be in your state. But there's a catch all provision that talks about that if the hearsay evidence... This is if there's no other specific rule applying to it, the judge can consider the totality of the circumstances to determine the trustworthiness of a particular statement or document rather than relying on equivalent guarantees required by the previous versions of the rule.

It also it needs to be supported by sufficient guarantees of trustworthiness. It needs to be more prohibitive on the point for which it is offered, than any other reasonably obtained evidence and the other parties have been notified of its intended use. I'm just mentioning that, but I have never seen that come up in a case. I'm not saying it wouldn't, but we're just mentioning it again, rapid fire, list these for you. Let you know they're out there, but you probably will never encounter them.

The next one, Todd, I don't think I've ever really seen it. Mainly because of the evidence they want to hear but reputation concerning character of reputation among a person's associates or in the community concerning the person's character. When have you seen that?

Todd Orston:

Well, the problem is, we're talking in context of hearsay. Does character come up in family law? Yeah, it does. Custodial issues, and even sometimes alimony issues and/or property division. The issue of one's character can definitely come up. But we're talking about reputation. We're talking about statements relating to, how is this person seen in the community? Have I seen the use of this hearsay rule? Not so much, but that's typically because... The advice that I'd be giving would be, don't think of presenting this evidence in the form of a hearsay statement.

If you have to go to court and you want to prove something about the other person's character, don't think you're going to and don't assume you're going to get that information in simply by stating, oh, he or she is known in the community as being whatever-

Leh Meriwether:

A terrible mom, or a terrible dad.

Todd Orston:

Right. You need the witnesses, you need to think in terms of, if you coached, and the other party never showed up for an activity, then you need some people who also went to those activities all the time, had maybe a child on the team or whatever, and was like, oh, I never saw that parent. Then you can start to paint the picture. Or if it's a drinking issue or a drug issue, you can't just say he or she is known for this. Think of it in terms of what witnesses can you bring to court in order to prove that point? Because-

Leh Meriwether:

Let me put it this way. Let's say you have one person on one side says, she has a reputation of being a terrible mom, and let's say that comes in. I don't see her coming in, but anyways, let's say that comes in. But then the other side, mom brings 10 witnesses that say, "Man, when I saw her taking care of her daughter and her son, she did these amazing things."

You bring in 10 witnesses talking about specific things that she did, that they thought made her a great mom. Well, the person that brought in the reputation evidence, they're not winning, because they didn't give any specifics. I think that's the critical point, don't think about reputation. The courts don't... I've never seen him care about the reputation. They want to hear specifics.

Todd Orston:

It goes to the weight. What you're talking about is the weight of the evidence. If you do get that hearsay statement in, but the other side has 10 witnesses giving direct testimony, the weight of the evidence will be much more in favor of the person with the witnesses than some general statement of reputation.

Leh Meriwether:

I think you're doing yourself a huge disservice if you're worried about trying to... In general, worrying about trying to get in some reputation evidence or character evidence, I should say.

Todd Orston:

Yeah.

Leh Meriwether:

Okay.

Todd Orston:

All right, how about the next one? How about judgment of a previous conviction, which is evidence of a final judgment of conviction, not just that you've been charged with something but a conviction, meaning you're convicted, and the judgment was entered after a trial or a guilty plea, but not a nolo contendere plea. Nolo contendere simply means that you're not contesting.

Again, this is all related to, of course, criminal matters, meaning criminal convictions. It doesn't have to do with nolo contendere pleas. The conviction was for a crime punishable by death, or by imprisonment for more than a year. Meaning, it's a felony as opposed to a misdemeanor, which would be something punishable by definitely not death and imprisonment for less than a year.

The evidence is admitted to prove any fact essential to the judgment. Then finally, when offered by the prosecutor in a criminal case, for purposes other than impeachment, the judgment was against the defendant. I will tell you, from my point of view, these issues normally come up in criminal matters. Bringing up evidence of a prior conviction, or prior bad act, that's something that usually comes up in the criminal arena. Where, a prosecutor, let's say, is trying to show that, well, this person is charged with this crime, and by the way, has been charged with similar crimes in the past.

I'll be honest, in all my years of practicing family law, again, like what we've been saying, I have never had to use this exception to the hearsay rule in a family law matter.

Leh Meriwether:

I've never seen even somebody object to it, but somebody may be cross examined that I don't have a drinking problem. "Well, sir, isn't it true that you were found guilty of DUI and spent time in jail for that?" I've never really seen anybody object to that question if it was true, the person had been arrested and all that stuff.

Todd Orston:

That's the point. I've never seen the objection because talking about-

Leh Meriwether:

It goes to the issue of if child custody is an issue in the case, it goes directly to that issue if there's alcohol-

Todd Orston:

Let's put it this way, to anyone going into court that has been convicted of a crime, it is a very risky maneuver, if you have been convicted of that crime, to basically take the position that well, I don't think they have a certified copy of conviction, therefore I'm going to object to them even mentioning the fact or questioning me on the fact that I was previously convicted, or even go so far as to say, "No, that's not true." Because the judge may give them the opportunity to go downstairs or wherever they need to go get a certified copy of conviction. Then if it turns out you've now lied in court, your credibility is even more short than it was. Yeah, bad things will happen.

Leh Meriwether:

The last thing is the unavailable declarant. We didn't go into this either, because these typically come up in criminal cases. It's usually dying declaration. The victim, right before they die say, "It was Jimmy that pulled the trigger." Well, obviously, they're not there to testify, but that was a dying declaration. Or maybe someone they're refusing to come to court, but they said at one point, "Yeah, I never pay my taxes." You want to get that evidence in, it's an admission against their own interests.

But you just don't see that in divorce cases, the only time you ever see someone who's not available, it's perhaps the parties had just moved to Georgia, and there's a lot of evidence in another state. Well, Georgia cannot subpoena people from another state, they don't have that power. Getting that testimony in. There are some tricks that we don't have time to go into that today. How you might get their testimony in, if you can't subpoena them, but we're going to try to have another show about how to get this evidence in with specific examples of how these things play out.

Hey, everyone. Thanks so much for listening.