Individuals who find themselves in the middle of a family law litigation understand the emotional and sometimes financial hardship that goes along with it. Whether it is a proceeding for dissolution of marriage or custody modification action, these types of cases are never easy for those involved. For this reason, and some others, some people treat family law matters as a way to “air out dirty laundry”. Such testimony is often objectionable. While there are numerous pieces of evidence that can be relevant to any particular family law matter, evidence of every little misdeed or foul word spoken by a party may not be. The purpose of this blog is to familiarize you with three key rules of evidence that all family law litigants should know to stay informed, understand the process, and make their day in court the best it can be with relevant evidence.
Relevancy. The first rule of evidence to know is relevancy. Relevancy is a threshold that all evidence must meet before it can be introduced at trial. The relevancy threshold is not a hard barrier to overcome—if you understand it. Evidence is relevant in your case if: (1) it has any tendency to make a fact more or less probable than it would be without the evidence; and (2) the fact is of consequence in determining the action.2 Ultimately, the relevancy question is fact-specific, and there is no blanket rule on what is or is not relevant. For example, an individual’s alcohol use is probably relevant in a child custody proceeding, but probably irrelevant to a divorce proceeding where the parties do not have children. So how you determine relevancy? Ask yourself why a certain piece of evidence is being offered. If it is because it helps prove something in the case in dispute, it is probably relevant. If it is offered to solely paint the other party in a bad light, it is probably not relevant.
Personal Knowledge. The next important rule to know is a rule directed at all lay witnesses. Indiana Rule 602 requires that a witness have “personal knowledge” of a matter before they are allowed to testify about it. A witness’s personal knowledge of an event can be established through different means, such as introducing evidence of what you (or any witness) observed first-hand. Now, where litigants get confused is when one party (or another witness) to the proceeding relays the information to the witness and another witness testifies about it. For example, say that a father in a custody action relays information to his friend that the Mother always screams at the children and is abusive. The friend has never witnessed the screaming or abuse, and the only knowledge the friend has of the abuse comes from the Father relaying the information. In a hypothetical trial, the friend is likely prohibited from testifying about the screaming and abuse because he has himself never witnessed this occur; in other words, he has no personal knowledge of these facts. Again, this is a fact-sensitive area but one you should be aware of when your attorney asks about any witnesses you may have.
Hearsay. This is one rule of evidence we have all heard about, 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.3 The first part of this rule, in plain terms, means that an out of court statement made by any person other than the person testifying is hearsay. For example, say Jim is on the stand. If Jim testifies that “the store clerk told him X (person) confessed to stealing” and the store clerk is not testifying, but instead Jim as to this statement, that is hearsay. The point of hearsay is to keep the “he said, she said” sort of evidence out of court. The second part of this rule is important and often overlooked, again, even by attorneys: Some 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 Jim example above. Suppose Jim instead testified that “the store clerk told me it would be a warm day, and that’s when I saw X stealing”. 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 stole because Jim witnessed that occur himself. Hearsay is tricky and it comes up a lot in family law proceedings; be aware of the complexities of hearsay and do not be afraid to ask your attorney questions so you get your evidence before the court.
The takeaway from this blog is that it is important to have, at minimum, a grasp of the complexities of the rules of evidence. Furthermore, it shows the importance of retaining a competent and diligent counsel for your family law cases. 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 family law matters 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.