Evidence is “PROOF” and evidence is crucial to any court case. Without evidence to support your statements in support of your claim or allegations against the other party, a judge may not believe you. While many people bring documents, pictures, or people to court to support their claims or allegations, it can be confusing and very frustrating when the judge refuses to listen to your “PROOF”.
You agonized over your hearing for hours; what documents should you bring, who should you ask to come and speak, what letters should you gather, what recordings can you take? You may have even done research on courtroom presentation and even wrote a statement. You believed there is no way you could possibly lose because of your PROOF. Then, with one slam of the gavel, the judge makes it clear you do not have the right or enough PROOF.
At the Law Office of Taylor B. Warner, APLC, we talk to clients or potential clients every day regarding this exact issue – how do I make a judge listen? What do I need to bring to court? Over the last nine years of practice, Taylor has met with a wide range of people in family law cases, with ranges of experience, education, and issues across Southern California. The Law Office of Taylor B Warner, APLC represents family law clients in San Bernardino County, Los Angeles County, Riverside County and Orange County.
In conversations with people seeking legal advice, it is apparent and normal that most people do not understand the rules of the courtroom – that is the lawyer’s job. Here at the Law Office of Taylor B. Warner, APLC, our job is to advocate for you and to get a favorable result based on the evidence. In doing so, we want you to not only understand HOW to present your case, but also WHAT and the WHY. What is the judge able to consider when deciding your case? Why? What are the best types of evidence to support your case? Why? What are downfalls of certain types of evidence? Why?
To explain these issues more clearly and specifically, let’s review a typical Domestic Violence Restraining Order case and discuss the common types of evidence people have, as well as the benefits and downfalls of each.
A domestic violence restraining order is a civil order protecting you from a loved one, significant other, or family member. A restraining order can protect you from all types of abuse – emotional, physical, verbal and much more. Often, a domestic violence restraining order can be very difficult because often the only people with knowledge of the abuse is the victim and the abuser. Because of that, the victim of domestic abuse often does not have more to offer the court for proof other than their own testimony. If this is the case for you, do not be discouraged. First, your testimony is GOOD evidence. Second, there may be other ways to prove your case that you were not aware of, which we will discuss below.
You can testify on your own behalf. Your story is important. However, be aware, you must only testify to facts you know personally – not something you heard from your neighbor or something your friend saw. You can testify about what you heard (with some exceptions discussed below), what you felt, what you saw, what you tasted, what you smelled. You cannot testify to someone else’s experiences. You can tell a story from your perspective in a way which allow the court to consider your words as PROOF.
However, when you are telling your story, you often cannot relay to the court what other people have said to you. These types of statements are called “Hearsay”. You cannot tell the judge what your friend said or what a police officer said or what a neighbor said. Your friend, the police officer, or your neighbor generally need to come into court and tell the judge themselves what they have heard, seen, etc. However, be aware that there are exceptions to this rule; for example, statements made by the other party made be considered. For example, in a domestic violence restraining order case, what if the other party threatened you and said, “I will kill you”? Would a judge allow you to tell the court this? It is a statement made by someone else. It is hearsay. However, this statement could be admitted in court. Why? Because this statement could fall under an exception to the hearsay rule.
The concept of “hearsay” and the exceptions to the rule can be very confusing for people representing themselves in court. In order to determine if you have the right testimony to support your case, you can call into our office to set up a consultation to review your evidence.
Opposing Party’s Testimony
Similarly, as stated above, the other party’s story is admissible in court, just as your story is. The other party can testify to what he or she has seen, felt, smelled, tasted, and, sometimes, heard. When trying to obtain a domestic violence restraining order, be aware that knowing when to object to the other party’s testimony will be key. If you are not aware of the rules of evidence, the other party may testify to things that would normally not be allowed into court. For instance, in a domestic violence restraining order case, what if the other party tried to give the judge a police report which stated he or she called the police on you? Is this document allowed into court? Not necessarily. Why? Police reports by themselves are statements made by a police officer and, if alone, should not be admitted into court. However, if the other party presents a police report to the judge and it is not favorable to you, you have to OBJECT to the presentation of the report. Knowing the rules of evidence and anticipating objections to the other party’s testimony could be crucial to obtaining or defending against a domestic violence restraining order.
Third Party Testimony
What if you are trying to defend against a domestic violence restraining order and you have witnesses who could come testify for you? Maybe your neighbor saw the incident that the other party is claiming occurred and it was not your fault; what if your neighbor could testify that the other party was the aggressor? Should you have the neighbor write a statement? No, it will not be admissible by itself. Statements made by people outside of court cannot be brought into court by themselves. Again, these statements are hearsay. The person must be in court and must testify. Why?
Imagine you are defending against a domestic violence restraining order and the other party’s mother, boyfriend, best friend, and sister (who all hate you) write letters to the judge explaining that you are a terrible person and the other party needs a domestic violence restraining order for protection from you. However, none of what they say is even close to true. Maybe they say they saw you hit the other person or heard you threaten the other person; but, NONE of it is true! Is that fair? No! Unless the other party’s mother, boyfriend, best friend, and sister show up to court and you can ask them questions to verify what they saw or heard, that third party testimony should not be let into court.
Keep this in mind when choosing who to ask to come be a witness in your case. Do you have family members who might discredit themselves on the stand and potentially harm your case? Are you certain that your witnesses have PERSONAL KNOWLEDGE of what they will be testifying to? These are a few of the questions you need to ask yourself when you begin to plan your strategy. Bringing the wrong witness to court could result in the judge not allowing your facts into evidence. We have spent significant time with clients regarding this specific evidentiary issue. Who would be the best witness for the case?
Child Witness Testimony
Unfortunately, there are times when a child is the third-party witness. Maybe the child has been told something or saw something, which makes them a witness to domestic violence. Do you want your children to take the stand? Do you want another child to take the stand? Sometimes, it may be necessary. However, it is up to the court. Generally speaking, the younger the child, the less likely the court is to allow them to testify. However, by working with your lawyer, you may be able to get those facts into evidence without putting a child on the witness stand. Remember, if a witness is put on the stand, even a child witness, the other party has just as much of an opportunity to question them in open court as you do.
In working with people trying to get or defend against a domestic violence restraining order, clients often tell the attorneys at our office they have multiple police reports to document the abuse or the lack of abuse.
Police reports are often assumed by potential clients to be GOOD evidence. This is not necessarily the case. Police reports are merely a memorandum of an event created by a police officer. Unless the officer who wrote the report shows up to testify, and testifies to certain things, the police report is NOT GOOD evidence. Why? A police report is a statement made by a police officer who is not present. See what is discussed above about statements of third parties. The other party needs to be able to question the officer regarding what they wrote. What did they see, what did they hear, what did they smell?
Be aware that a police report can be a tool that helps you understand which witnesses to bring to court. For example, if the police report mentions your neighbor witnessing the event, maybe you want to call your neighbor as a witness. Or, alternatively, the police report might assist you in generating questions to ask your neighbor if he or she appears in court to testify against you.
Another common type of evidence are pictures. What if you took pictures of injuries on your body? Or damage to your personal property? Would these pictures be admissible? Maybe. Expectation of privacy and being able to prove the picture is an accurate representation of what it purports to be are the biggest issues which may keep pictures away from the judge’s eyes.
If you took a picture without a person’s knowledge, it cannot be a picture of the person in a private setting. For instance, you cannot take pictures of a person through their window. However, you can take a picture of a person on a subway. If the picture is of you or your injuries, you can use the pictures to prove that you did indeed sustain injuries, but without other evidence, the pictures themselves do not prove that your abuser caused them. You would have to testify that you took the picture, when you took the picture, and that the picture is an accurate representation of what it purports to be. However, if someone else took the picture, you need to have that person come in to testify the picture is an accurate representation of what it purports to be on the day it was taken. This process is called authentication. Pictures present unique evidentiary issues which can be further explained by one of the attorneys at our office, depending on what the picture represents.
Similar to photographs, often people call into our office and explain the evidence they have for their case. Often, these individuals have “recordings” of the other party. In California, you are required to notify the person who is being recorded that they are in fact being recorded; however, there may be an exception to this rule when it comes to a domestic violence restraining order. The reason for this exception is that the law is not meant to protect an abuser from justice. And, outside of domestic violence restraining order cases, further exceptions may exist. For example, if the other person reasonably expected the conversation to be overheard, you can record them. Say an abuser makes a statement in public that is a threat. If that statement is recorded, it can be used as GOOD evidence. Secret recordings can also be used to show the threat or apprehension of violence. Finally, the recording may be able to come in to prove someone is lying on the stand. For example, if someone takes the stand and says they never threatened you, then you can introduce a recording of them threatening you in order to disprove them. Introducing a secret recording in this way can be very tricky. You need to get them to completely lie on the stand in order to not have the recording backfire. This is a very delicate process and should be left to an attorney.
Evidence, or proof, is a confusing topic for many people in family law cases. Call our office to discuss what types of evidence you do have, if these items are even allowed into court and why, and if they would be helpful. The Law Office of Taylor B Warner, APLC is here to advocate, but also help you understand the why behind the presentation of proof in your case. Call our office for a consultation today.