From identifying bias in reports to preparing your witness to building a psychological case in court, here are some great tips on gathering and presenting evidence to support your case.
Authenticating Facebook Posts, Photos, and Other Evidence
Despite the permeation of social media and electronic communications – and numerous published cases and articles regarding admissibility – some domestic relations judges, arbitrators, mediators, and attorneys still develop a “deer in the headlights” look when presented with electronic evidence. They allow words such as “spoliation” and “hacking” to diminish the reliability and importance of electronic evidence.
When facing a legal dilemma, start with the rule of law. Here, we begin with Federal Rule of Evidence 901. While state rules and statutes typically govern domestic relations cases, numerous states apply authentication rules that mirror the language of the federal rule. The portions of FRE 901 relevant to electronic information (“Authenticating or Identifying Evidence”) state:
A. In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
B. Examples…
(1) Testimony of a Witness with Knowledge…
(3) Comparison by an Expert Witness or the Trier of Fact…
(4) Distinctive Characteristics and the Like…
(9) Evidence About a Process or System…
Authentication is that simple – providing evidence that supports a finding that the item is what you purport it is. Attorneys who err in admitting electronic evidence tend to over-think authentication and assume that some sort of ironclad proof is required.
– Melanie K. Reichert is a Family Lawyer at Broyles Kight & Ricafort in Indianapolis, Indiana. www.bkrfamilylaw.com
Building a Psychological Case in the Courtroom
In a custody trial, a psychological case must be built to help inform the Court regarding the best interests of the child. In order to be prepared in the courtroom on key psychological issues, you need to start building the psychological framework in your case at client intake.
Here are the steps to do this:
- After meeting with your new client, identify the key psychological/family issues in the case. Examples might include substance abuse, a child with ADHD, and a restrictive gatekeeper.
- Schedule a follow-up client meeting where child custody concerns will be queried. Ask informed and relevant questions that will help you gather necessary information to build out these psychological themes in your case.
- Plan your out-of-court strategy. For example, if there is a substance-abuse allegation, request alcohol and drug testing at the outset. If your client is a restrictive gatekeeper, help your client receive appropriate treatment and consultation to remedy this issue.
- If a mental-health professional will be involved in the case as an evaluator, treatment provider, or consultant, help prepare your client about the information and data that should be gathered, organized, and presented to the mental-health professional. The only way to do this is to understand what information helps to support the veracity of this claim.
- Present all of the information above through evidence and testimony in court. When it comes to the psychological and child-custody issues, the best strategy in the courtroom is one that started in a proactive, thoughtful, strategic manner many months before trial. Being prepared on these issues before entering the courtroom is the best way to achieve the outcome your client desires.
– Dr. Eric Frazer and Dr. Linda Smith are Forensic Psychologists and Co-Founders of Child Custody Analytics. www.childcustodyanalytics.com
Understanding the Risks of Bias in Expert Child Custody Reports
When a custody report goes against your client, he/she is likely to think the evaluator was biased. Knowing how to differentiate between objective and potentially biased reports is critical in knowing when to challenge and when to accept the conclusions of the child-custody evaluator.
Here are some examples of bias commonly seen in child custody reports:
- Anchoring – Heard critical allegations near the beginning of the evaluation and “anchored” to them.
- Confirmatory – Once anchoring to a critical issue, looks only for data to confirm the allegations.
- Recency – When the evaluator learns of something by reviewing collateral data or speaking to a collateral witness, does not check the veracity of what was learned.
- Research – Using research without identifying the limitations of that research, other research that might contradict the particular findings, or using research that is not relevant to the case.
In order to avoid bias, the expert must show evidence of multiple hypotheses; gathering additional information to disconfirm early conclusions; and asking relevant, in-depth questions with sufficient follow-up with both parents. A thorough risk-benefit analysis of potential custodial outcomes is critical.
If the process and report are truly objective, work to find a mutually agreeable settlement. If the process and report shows significant evidence of bias, consider using a consultant/expert witness to challenge the outcome in court.
– Philip M. Stahl (Ph.D., ABPP) is a Board-Certified Forensic Psychologist who serves as a consultant and expert witness in child-custody matters. www.parentingafterdivorce.com
Preparing an Independent Percipient Witness for Trial
You are representing Wife in a trial where Witness will give independent percipient testimony. When you meet with Witness privately to “prepare his testimony,” he is suspicious of your motives – he assumes that you will attempt to “improve” his testimony in Wife’s favor. Start by assuring Witness that you will not in any way attempt to influence his testimony and that your only goal is his truthful and accurate testimony.
Cite the experiences of two hypothetical witnesses – Cora Confident and Timothy Timid – who gave inaccurate testimony because they had not been properly prepared for trial:
- When Cora Confident was asked at trial whether a certain event had occurred, she testified “Yes.” Her answer was inaccurate because she had not been properly prepared: Cora did not personally know whether the event had occurred, but she trusted the person who told her that it had. Cora’s accurate answer would have been “I don’t know.”
- When Timothy Timid was asked at trial whether a certain event had occurred, he testified “I think so.” His answer was inaccurate because he had not been properly prepared: Timothy gave an equivocal answer because he found the trial experience intimidating. Timothy’s accurate answer would have been “Yes.”
– Ronald Granberg (CFLS, AAML, IAFL) is a Fellow of the AAML and the IAML, and founder of Granberg Law Office in Salinas, California. www.granberglaw.com
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Authentication of Digital Evidence
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