CALIFORNIA LAWYERS ASSOCIATION FAMILY LAW NEWS Issue 4, 2018 | Volume 40, No. 4 What it Takes To Be A Putative Spouse in California and Its Benefits: Part 3-The Effect of a Putative Designation By Hon. Mark Juhas What Every Family Lawyer Should Know About Receivers By David J. Pasternak Finding NEMOH in Divorce By James M. Crawford, Jr. Hon. William J. Howatt was An Evidence Code appointed to the El Cajon Municipal Court in 1979 by Governor Edmund G. Brown, Jr. Primer for Family and to the San Diego Superior Court in 1987 by Governor George Deukmejian. In the Superior Law Attorneys Court he served as Presiding Judge of the entire Court in 1996 and 1997, on the Appellate Part III: Division of the Superior Court, and culminated his career on the bench as Supervising Judge of Documentary the Family Law Division. His legal career included over ten years as a Deputy District Attorney for the Evidence County of San Diego, including felony trials, the Fraud Division and the Appellate Division. Judge Howatt frequently lectures on Evidence law and has designed a special three-evening Evidence program Hon. William J. Howatt, Jr. (Retired) & for family law attorneys. He retired from the Bench in December of 2006. Since retiring, he does arbitrations and mediations with JAMS Stephen D. Hamilton in San Diego and acts as a privately compensated temporary judge. Stephen D. Hamilton has been “The eyes are more exact witnesses than the ears.” an attorney for 22 years, with a practice devoted almost - Heraclitus exclusively to family law for 20 ome of the most persuasive and reliable, if properly of those years. He has been a Certified Specialist in Family Law Sauthenticated, evidence in a family law matter is since 2004. He is currently a documentary evidence. Whether it is a photograph of a member of the California Family party’s injuries following a domestic violence incident, Law Executive Committee, for which he is the Legislation Chair. a school attendance log showing a child consistently He is a member of ACFLS and being late for school during one party’s custodial time or serves on the ACFLS Outreach and Amicus Committees. He that bank record showing the withdrawal of money from is also chairperson of the San a joint account after separation, documentary evidence Luis Obispo County Family Law almost always carries greater weight than the testimony Section. of a party. A document will not change its testimony as a witness can unexpectedly do. For that reason, under- symbols, or combinations thereof, and any record standing how to overcome evidentiary objections to doc- thereby created, regardless of the manner in which uments should be party of your basic skill set as a family the record has been stored.1 law litigator. This article will address how to properly This definition therefore covers electronically stored admit documentary evidence, starting with a discussion information, photographs, audio and video recordings. of the applicable terminology. Other statutory definitions pertaining to documentary Terminology Regarding Documentary Evidence and tangible evidence include: Documentary evidence is usually a writing or other • ELECTRONIC: “means relating to technology document. However, the statutory definition is much having electrical, digital, magnetic, wireless, optical, broader than just printed documents: electromagnetic, or similar capabilities.”2 “Writing” means handwriting, typewriting, printing, • ELECTRONICALLY STORED INFORMATION: photostating, photographing, photocopying, “means information that is stored in an electronic transmitting by electronic mail or facsimile, and medium.”3 every other means of recording upon any tangible • JUDICIAL NOTICE: Sometimes referred to as thing, any form of communication or representation, “judicial evidence”. The acknowledgement by the including letters, words, pictures, sounds, or court of a generally accepted or undisputed fact or California Lawyers Association • Family Law News 17 the existence of a document. The introduction of is relevant as it would establish Andrew has been the evidence through judicial notice is strictly limited in victim of domestic abuse during the marriage. Such scope by statute.4 evidence must be considered by the Court under Family • PAROLE EVIDENCE RULE: This rule prohibits Code section 4320(i) as a factor to consider in addressing the introduction of oral or written evidence that spousal support at trial. So how do you get the note into is outside the four corners of a written agreement evidence? Professor Imwinkelried has published California that seeks to modify or explain the contents of the Evidentiary Foundations with full suggested foundational writing by interpreting the intent of the parties to the questions and is an excellent reference should you need it. agreement.5 Of note is the fact you did not need a handwriting • TANGIBLE EVIDENCE: Real or physical expert to successfully introduce the exhibit. That is because evidence. A real or physical object that can be held a lay witness is allowed to identify the handwriting of or touched and by its appearance, texture, feel, another if the witness has personal knowledge of the weight, and/or size it can be readily identified and author’s handwriting.11 recognized for what it is. Electronic evidence can be more complicated to • TAINTED EVIDENCE: Evidence that has been authenticate, but that does not lessen your obligation to obtained by illegal or improper means and which is, make sure such evidence is introduced given the relatively for that reason, subject to exclusion as inadmissible. low threshold of establishing a prima facia case of the For example, evidence in a family law action that authenticity of the ESI: “Ironically, however, counsel often has been obtained through eavesdropping.6 fail to meet even this minimal showing of authentication The First Step: Establishing Authenticity when attempting to introduce ESI, which underscores the You cannot introduce evidence without authenticating need to pay careful attention to this requirement. Indeed, it.7 You must prove to your judicial officer the evidence the inability to get evidence admitted because of a failure to is what it purports to be. In other words, is the writing authenticate it almost always is a self-inflicted injury which 12 genuine? To authenticate a writing, you need to either can be avoided by thoughtful advance preparation.” introduce “evidence sufficient to sustain a finding that it The California Evidence Code includes other specific is the writing that the proponent of the evidence claims it provisions and guidance for authenticating writings is…”8 or establish “such facts by any other means provided without relying on the person who prepared or signed the by law.9 Further, before a writing or secondary evidence document: of a writing is received into evidence, you first need to Section 1413: A witness to the execution of a writing authenticate the writing.10 can authenticate. Authentication is not necessarily exhaustive in Section 1414: A party admits to the authenticity of presentation, nor need it be elaborate. Simply present the the writing. court with a prima facie case the item is what it claims to be. Section 1415: Evidence of the genuineness of the The court is only required to find that prima facie evidence handwriting, exists to support the proposition that the evidence is genuine, Section 1416: Testimony from a non-expert who is and the trier of fact determines the “weight” or “probative familiar with the handwriting of the value” of the evidence once admitted. purported author. The foundational fact or preliminary fact determination is made under Evidence Code section 403 in a hearing Section 1417: Handwriting comparison by the trier conducted under Evidence Code section 402. At that of fact. hearing, the court is responsible only for finding sufficient Section 1418: Handwriting expert identification. evidence to support prima facie evidence of authenticity. Section 1420: Authentication by evidence of a For example, what if Wife (Lizzie) has been response. verbally and physically abusive to your client, her Section 1421: Authentication by content. husband (Andrew)? Following one incident, she wrote an incriminating note apologizing for the attack and the Authentication as a response occurs when a letter injuries to Andrew. Under this hypothetical, the document is received, for example, in response to a letter or other 18 Family Law News • California Lawyers Association communication sent by the recipient of the response. before it can be admitted or utilized in the hearing or trial. Content can also be used to authenticate where the In that situation, you should be able to represent to your writing refers to or states matters that are unlikely to be judicial officer that the editing did not change the material known to anyone other than the person who is claimed content, meaning or language of the recording. Further, by the proponent of the evidence to be the author of the you must give opposing counsel an opportunity to view or writing. Authentication by admission can occur through listen to the original recording and compare it to the edited a formal “Request for Admission” discovery request, or version. A good practice is to provide the recordings, through a party’s admission of authenticity in a declaration original and edited, to opposing counsel before your or testimony. For example, when a witness testifies they hearing or trial and elicit a stipulation for the admissibility wrote a text message but really did not mean what they of the edited recording in advance. It is also good practice wrote. The probative value of the explanation is for the to have a transcript prepared to go along with the video or trier of fact to determine. recording. Original Documents A Few Words About E-Mail Original evidence “means the writing itself or any There is no more fascinating and frustrating aspect counterpart intended to have the same effect by a person to family law hearings and trial than the ubiquitous executing or issuing it.