It is not uncommon for a client seeking a divorce in a Massachusetts court to have in their possession damning evidence that demonstrates why the married couple is in the position that it currently is in. While the evidence presented by the client to the attorney may be the perfect smoking gun that can be used to prove that spouse’s credibility or may be otherwise very useful to clear up the truth about a fact that is disputed between the parties, this is not always so. Evidence, to be admissible in a Massachusetts divorce court must first overcome certain barriers to admissibility.
The following article may be a bit technical, and I apologize to my readers for this in advance, however, it can be very helpful to a client considering or already in the process of a divorce in Massachusetts to understand just what might make it to the judge and what may not.
Before a Document, Email, Photo or Video Can Be Considered as Evidence in a Massachusetts Divorce
Is it Authentic?
The first hurdle that a client in a Massachusetts divorce must clear is to make a showing that the evidence being produced is authentic. For evidence to be considered authentic, the lawyer must be able to answer the question, “is this what you really say it is?”
The lawyer must establish first that the evidence, that is, the document, email, photo or video is what it is claimed by the lawyer to be. The method that Massachusetts lawyers use to accomplish authenticity is called laying a foundation. A landmark case in Massachusetts, Commonwealth v. LaCarte, established that there are generally two methods by which a lawyer can prove that the evidence being produced is authentic.
- Testimony by a witness that can demonstrate that the item is what it is represented (by the party putting the evidence forward) to be; OR
- That an implication can be made by the circumstances which would imply that the item is what the person putting the evidence forward represents it to be.
Examples:
Testimony of a Witness
For example, let’s imagine that your spouse wrote you a letter in their own handwriting. This letter written by your spouse informed you that they were having an affair, that they wanted out of the marriage and that they never wanted to see you again. While the value of such a letter may depend upon the intended use of the letter in court, if the result after thinking about the letter’s value with your attorney was to try to get it admitted, the next step would be to determine how to get it admitted. Here, you would be able to testify that you know your spouse’s handwriting and you know that the letter was written by your spouse directly to you. First hurdle cleared.
Authentication by Circumstances
Now, let’s suppose that the letter wasn’t handwritten. Let’s get creative and say that the letter was a printed letter which did not indicate your name or your spouses name, the letter simply referred to you as “my husband.” Here, it may be possible to authentic that it was your spouse who wrote this letter based on the circumstances surrounding the letter. Perhaps you found the typed letter on your kitchen table. You could argue in court that the only likely person to put such a letter on your kitchen table would be your wife – no guarantee of winning the argument, but if this were your only option, it could be made.
Is it Admissible?
Now that authenticity of the evidence can be demonstrated to the Massachusetts divorce court judge, the next step is to determine if the evidence is admissible. Admissibility presupposes two things:
- The evidence is relevant; and
- The evidence is admissible, that is, the evidence is not barred from being introduced at trial due to some privilege, the fact that it is hearsay or that the evidence cannot pass some other bar imposed by the Massachusetts divorce court.
Relevance of Evidence
Let’s look at this in pieces. First, evidence is relevant evidence if it tends to make a fact more or less probable than it would be without the evidence. In plain English, if the evidence might in the slightest way shed some light on what you are trying to prove in your divorce case, then it is probably relevant.
Privileges as a Bar to Admitting Evidence
Spouses are disqualified from testifying in a Massachusetts divorce case about any private conversation that occurred between the spouses during their marriage. For this rule to apply, the conversation must truly be private, that is, unwitnessed (otherwise, the witness to the conversation could testify about the subject matter of the conversation).
The reason for the spousal disqualification rule is simple, the likelihood that any of us could produce an accurate account of a conversation with a spouse that occurred in the heat of an argument or other hot-button issue is very low because each party is biased as to their own position. Trying to sort out the he-said, she-said conundrum of conversations between spouses would be a time consuming and impossibly frustrating exercise and for this reason, the Massachusetts courts will not do it.
There are other privileges that may arise in a divorce in Massachusetts, but these are beyond the scope of this article.
Hearsay
The layman’s use of the word ‘hearsay’ is very different from the legal definition of hearsay which is, “any out-of-court statement that is being offered to prove the truth of that statement.” I could spend hours (but won’t for your sake) explaining the many ways this seemingly simple statement is treated by a Massachusetts court. To save your time and sanity, I will simplify hearsay this way: the court will not allow in any statement that has been made out of court, unless an exception (that has been previously granted by the court allow it to come in as evidence).
An explanation of the exceptions that apply to hearsay evidence is also long, confusing, and complex. There are some big exceptions that come up frequently, for example, an admission made by an opponent in the case in a statement might be admissible as an exception to hearsay. For example, if your best friend was told by your spouse that they were having an affair, your friend could try to get this statement in as evidence. If the statement were objected to by the other party in the divorce, the judge might overrule this objection as it is an admission by a party opponent made by that party.
There are numerous other exceptions that may be argued to hearsay which are beyond the scope of this article.
With the first two major hurdles cleared, admissibility and authenticity, it may be possible to get your photo, video or documentary evidence admitted so that a judge may review the evidence for the purpose of helping them make a decision as to the truth of a specific point that is being made. If you have are considering divorcing in Massachusetts and have evidence that you are worried may not reach the threshold of admissibility or may not be able to be authenticated, I advise you to contact our office to assist you in this most important matter.
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