By: Stephen J. Plog
Having spoken with thousands of people over the years regarding their Colorado divorce and child custody cases, one common topic of discussion is that of evidence, within the context of what can or cannot be used in court. There are many common misbeliefs about what is good evidence, meaning something the court can accept and use for purposes of formulating its ruling. For example, sometimes people ask whether it would help for them to have friends or other third persons write letters, whether attesting to an event they’ve witnessed or perhaps as to someone’s “character.” Each time this is asked, I am compelled to let people know that letters from third persons are not going to be helpful (generally) and are going to be considered inadmissible hearsay. The second part of my response is always going to be that we will need the potential letter writer to attend court to testify. The Colorado Rules of Evidence dictate what is or is not going to be admissible evidence in a divorce or child custody case. In this blog post, I will attempt to give a basic tutorial regarding what will or won’t be admitted.
1. Statements of Third Parties:
In a general sense, statements made by a third person are going to be considered “hearsay” and they will not be admitted by the judge hearing your cases, absent a statutory exception. This includes statements made by your child, when dealing with issues of child custody or parenting time. This includes letters written by a third party, as mentioned above. However, there are certain exceptions to this general rule. Statements of the other party are going to be admissible. Statements of a third person, such as your child may be admissible as an “excited utterance,” meaning the statement was made while still under the effect or influence of a certain event. Sometimes, business records may be admissible under what is called the “business records exception” to the hearsay rule, as relates to records kept in the normal course of business. It should also be noted that in cases in which there is an expert, such as a child and family investigator, statements made by a child to the CFI, or perhaps letters submitted by those third persons as to character, parenting, or other matters, may also be admitted if they were part of the body of evidence leading to the expert’s report. Unless statements of third persons fall within one of the exceptions to the hearsay rule, steps will need to be taken to ensure they are admitted in court. This can include your attorney subpoenaing witnesses or documents. It can include you and your attorney making sure experts, such as a CFI, are provided any statements or documents to consider. Finally, it should be noted that settlement communications, including from mediation, are not admissible. Your divorce attorney should know the rules of evidence as relate to third party statements and will use that knowledge to assess admissibility, including looking strategically at how to get evidence before the judge.
2. Documents and Other Tangible Evidence:
In the previous paragraph, I discussed documents, such as letters from third persons. Documents and other tangible evidence come in many forms. Some types of documents are implicitly admissible in your divorce or child custody case. This includes court pleadings filed by either party, such as the petition, motions, orders, or other items. It also includes C.R.C.P. 16.2 disclosure documents, such as pay stubs, tax returns, bank statements, and more, from either side. Likewise, discovery responses or documents submitted as part of the discovery process are likely going to be admissible. However, other documents may not be. A police report, though certainly kept in the normal course of business of law enforcement, is not going to be admissible without the police officer, the author present to testify as to the report. The same will hold true for most expert reports, such as a home appraisal or a financial expert hired by one of the parties. It would also hold true with letters written by an employer, whether as relates to termination of employment, performance, or otherwise. Thus, it’s imperative to make sure that police officer or home appraiser is under subpoena and compelled to attend your hearing.
Other items of tangible evidence which may be common in a family law case might include emails, photos, or text message printouts. Photos taken by a party will generally be admissible. Photos taken by a third person may require the photo taker to testify for authentication. Emails or text messages between the parties will generally be admissible. However, it should be noted that whole conversation chains should be provided, as some judges will exclude these types of communication documents as being incomplete if the whole conversation is not provided. Emails or texts with third persons will generally necessitate the author testifying.
When preparing for the hearing, or hearings, in your case, your job is to inform your family law attorney regarding what documents or statements you may have or be aware of which might be helpful to you. If you think something have even a slight chance of helping, bring it up to your attorney. From there, he or she will make necessary assessments as to both relevance, strategy, and how to get that evidence admitted at hearing. A court hearing can be likened to telling a story (to the court), constrained by rules. If the rules are not complied with, the judge may never get to hear your full story.