Individuals who find themselves in the middle of a paternity or divorce proceeding understand the emotional struggle that comes along with it. Whether it’s a paternity proceeding to establish custody, or a modification of a prior divorce decree, these types of proceedings never tend to get easier for people. For this reason, and some others, people treat these types of proceedings as a way to “air out dirty laundry” of the other. There are certainly numerous pieces of evidence that are relevant to both paternity and divorce proceedings, and you should share important evidence with your attorney (and likely in court). However, evidence of every little misdeed or foul word spoken by a party may not be. The purpose of this blog is to discuss three key rules of evidence that divorce and paternity litigants must know to stay informed and help understand the process when it comes to courtroom testimony. Know these three key limits!
Relevancy. The first important rule of evidence to know is relevancy. A threshold issue when presenting any piece of evidence to the court is that it must be relevant. This relevancy threshold is typically not too hard to get over. Relevant evidence is evidence that “has any tendency to make a fact more or less probable than it would be without the evidence.”1 The rule is written in a way that leans in favor of letting in evidence as opposed to keeping it out. So, while evidence of one party’s drinking may be relevant to a custody determination, it would probably not be relevant for a divorce of a couple without children. Ultimately, the relevancy of evidence is fact-specific, and there is no blanket rule on what is and is not relevant. Remember to ask yourself why a certain piece of evidence is being offered. If its because it helps prove something in the case, it is probably relevant. If it is offered to solely paint the other party in a bad light, it is probably not relevant.
Hearsay. This is one we have all heard, but one that still causes a lot of confusion, even for attorneys. Hearsay, by definition, is a statement that (1) is not being made by the declarant while testifying at the trial or hearing; and (2) is offered to prove the truth of the matter asserted.2 The first part of this rule, in plain terms, means that an out of court statement made by any person other than a party who is testifying is hearsay. For example, say Sally is on the stand, if Sally testified that “the store clerk told her x killed the victim” and the store clerk is not testifying, that is hearsay. The point of hearsay is to keep out the “he said, she said” sort of evidence. The second part of this rule is important and often overlooked, again, even by attorneys. Out of court statements are not hearsay unless they are being offered to prove the truth of the matter asserted. This is an important distinction. Take our Sally example above. Suppose Sally instead testified that “the store clerk told me it would be a warm day, and that’s when I saw x kill the victim.” This would not be hearsay because, while it is an out of court statement, the fact that the store clerk said it would be sunny is not being offered to prove x killed the victim. Hearsay is tricky and it comes up a lot in paternity and divorce proceedings, be aware of the complexities and don’t be afraid to ask your attorney questions.
Personal Knowledge. The last important rule of evidence to know is the rule that covers “personal knowledge.” This rule comes into play only in regard to witness testimony rather than with tangible pieces of evidence. Pursuant to the rule, a witness must have personal knowledge of a certain event or incident in order to testify about it at trial. Now, where people get confused, is when one party in the proceeding relays the information to the witness and the witness testifies about it. For example, in a divorce proceeding, one spouse was abusive with the children. Say that the non-abusive spouse told his or her mother about the abuse, but the Mother never witnessed it or had no other knowledge other than what she was told. At trial, the Mother would probably be prohibited from testifying about the abuse because she never witnessed anything, but instead was only testifying about the knowledge she gained from the non-abusive spouse. Again, this is a very fact-sensitive area but one you should be aware of when your attorney asks about any witnesses you may have.
The takeaway from this blog is that it is important to have, at minimum, a grasp of the complexities of the rules of evidence if you are going to be a witness. Furthermore, it shows the importance of retaining a competent and diligent attorney. We hope this blog provides some insight into some of the more important rules of evidence. This blog post is written by attorneys at Dixon & Moseley, P.C. who handle divorce and paternity cases of all types throughout Indiana. This blog is written for general educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.