EVIDENCE IN FAMILY LAW 1 I. RULES OF EVIDENCE Chapter 1. General Provisions Art. 101. Scope. Art. 102. Purpose and Construction These articles shall be construed to secure fairness and efficiency in administration of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. Art. 103. Rulings on Evidence The contemporaneous objection requirement (specific ground of the objection) arises when a ruling admits evidence; however, when a ruling excludes evidence, the substance of the evidence must be made known. It is incumbent upon the party who contends his evidence was improperly excluded to make an offer of proof. La. Code Civ. Proc. art. 1636. Art. 104. Preliminary Questions Preliminary questions concerning (1) the competency or qualification of a person to be a witness, (2) the existence of a privilege, or (3) the admissibility of evidence shall be determined by the court. Compare with La. C.E. art. 1008. In making its determination, the court is not bound by the rules of evidence except those with respect to privileges. Art. 105. Limited Admissibility – e.g., suit record admitted in evidence for divorce hearing only. Chapter 2. Judicial Notice Art. 201. Judicial Notice of Adjudicative Facts A party is not required to prove facts which may be judicially noticed. Adjudicative facts are those that normally must be proved in the lawsuit. A judge may only notice facts which are not subject to reasonable dispute, either because they are (1) generally known within the territorial jurisdiction of the trial court, or (2) are readily determined from accurate sources. The court may take notice, requested or not; the court must take notice if requested and given proper information. The parties are entitled to an opportunity to contest the taking of judicial notice. Examples: judicial notice of distance between two geographical points (relocations, determination if deponent lives more than 100 miles from courthouse, etc.); passage of time (age of children for termination of child support, etc.). Art. 202. Judicial Notice of Legal Matters Trial court may take judicial notice of its own proceedings; it cannot take notice of other court proceedings — thus, documentation of such proceedings must be offered into evidence in the ususal manner. Examples: judicial notice of entire record; judicial notice of previous judgments, orders, and injunctions. Chapter 3. Presumptions and Prima Facie Evidence Art. 302. Definitions 1. “Burden of persuasion” is the burden to establish requisite degree of belief in mind of trier of fact.2 In Talbot v. Talbot, 864 So. 2d 590 (La. 2003), the Supreme Court explained: In civil cases, a party [Plaintiff or Defendant] who has the burden of proof must prove the fact in issue by a preponderance of the evidence [more probable than not], and not by some artificially created greater standard. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993); Jordan v. Travelers Ins. Co., 245 So.2d 151, 1155 (1971). Only in exceptional controversies is the clear and convincing standard applied in civil cases ‘where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy.' Succession of Lyons, 452 So.2d 1165. The clear and convincing standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence. Succession of Lyons, 452 So.2d at 1165. 3. “Presumption” is an ‘inference’ (conclusion that an evidentiary fact exists) created by legislation that trier must draw if finds existence of ‘predicate fact.’ Art. 304. Rebuttable Presumptions The presumptions herein are rebuttable presumptions which shift the burden of persuasion to the opponent. Rebuttable presumptions may be controverted or overcome by appropriate evidence, unlike conclusive presumptions which are rules of substantive law not regulated by this Chapter. Art. 308. “Prima Facie Evidence of a Fact” is evidence sufficient to establish the existence of that fact; similarly, a “Prima Facie Case” is one which meets the plaintiff's burden of producing evidence, i.e., evidence from which the trier of fact may conclude the existence of every fact essential to plaintiff's recovery. 1 There are two major areas of evidence law: Relevancy and Competency. 2 The burden of proof actually involves two separate burdens. The test for meeting the burden of persuasion is applied at the end of trial. The burden of production, on the other hand, arises when the party (plaintiff or defendant) presents his case-in-chief. Page 1 of 24 Chapter 4. Relevancy and Its Limits (General Rules (401-403) • Character (404-405) • Habit/Routine (406)) Art. 401. “Relevant evidence” is evidence that has any tendency to make the existence (or nonexistence) of a fact of consequence more or less probable. Evidence is relevant only if it has a tendency to prove or disprove a fact in issue.3 • A distinction should be made between evidence that may be used to prove or disprove a fact in issue (substantive evidence) and evidence which is relevant only to assess whether a witness should be believed (impeachment evidence; credibility evidence). Art. 402. Relevant Evidence Generally Admissible; irrelevant evidence inadmissible Art. 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or waste of time. h Article 401/403 Balancing Test. Probative worth balanced against fairness & judicial efficiency.4 Art. 404. Character Evidence Generally Not Admissible to Prove Conduct; Exceptions The general rule in civil cases is that evidence of a person's character or a trait of his character, such as a moral quality, is not admissible to show that the person acted in conformity with his character on a particular occasion. La. C.E. art. 404(A). This rule requires exclusion of specific instances of conduct only when offered to prove that a person acted in a particular manner on a particular occasion, that is, the person acted in conformity with his character. It does not require the exclusion of character evidence when the character of a person is an essential element in the case. See La. C.E. art. 405(B). Art. 405. Methods of Proving Character5 On direct, where character evidence is admissible, proof may be by general reputation only; the foundation that the witness is familiar with that reputation is required. On cross, inquiry is allowable into relevant specific instances of conduct. Remember, too, in cases in which character is an essential element of a claim or defense (e.g., custody, fault, etc.) proof may also be made of specific instances of conduct. La. C.E. art. 405(B). • La. C.E. art. 405(B) states: “In cases in which character or a trait of character of a person is an essential element of a claim or defense proof may . be made of specific instances of his conduct.” Art. 406. Habit; Routine Practice; Methods of Proof Evidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. The evidence may consist of testimony in the form of an opinion or evidence of specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine. • The first sentence of this Article is included to distinguish its treatment of habit-and-routine-practice evidence from that of other character evidence, which is generally inadmissible when offered circumstantially. See La. C.E. arts. 404-405. Art. 407. Subsequent Remedial Measures Art. 408. Compromise and Offers to Compromise Article 408 does not require the exclusion of evidence otherwise admissible merely because it is presented in the course of compromise negotiations, but you have to show that you obtained it some other way. Similarly, the article does not require exclusion when the evidence is offered for another purpose, such as proving the bias or prejudice of a witness, or rebutting a claim of undue delay. 3 E.g., Evidence of the character of a person who would have custody of a child is always relevant and admissible — La. Civ. Code art 134(6), moral fitness — even though the facts of the character evidence occurred prior to a previous judgment on the matter. See, e.g., Crowson v. Crowson, 742 So. 2d 107 (La. App. 2 Cir. 1999), wherein the appellate court distinguished between the use of evidence to show a material change in circumstances and to show the best interest of the child. 4 E.g., Briscoe v. Briscoe, 641 So. 2d 999 (La. App. 2 Cir. 1994) (in divorce action, fact that husband punched wife eight years earlier too remote). 5 Character evidence may be divided into four subcategories: a person's (1) general character, (2) specific character trait, (3) specific acts, or (4) habit. Any one of these may be direct evidence depending upon the nature of the claim or defense. Thus, general character or a character trait may be direct evidence in a child custody case. In such case, any prejudicial effect is clearly outweighed by the probative value of the character evidence. The Code of Evidence recognizes this in Article 405(B). The problem arises when character is not an "essential element of a . claim or defense" but is offered to prove a person's conduct at a time and place in issue. In evaluating relevancy of circumstantial evidence of character, it is important to focus upon the exclusionary phrase "to prove he acted in conformity therewith." La.