Category: Court Proceedings
Questions/Answers
When is the "clear and convincing evidence" standard used?
"Clear and convincing evidence" is used in a case in which a very important interest could be lost or is at stake. For example, the "clear and convincing evidence" standard is used in a hearing for the termination of parental rights. The state has determined that the loss of the right to be a parent is so important that it needs a higher standard than just "preponderance of the evidence," but it is not so important that it needs the "beyond a reasonable doubt" standard, as would be required if a person’s life or freedom were at stake, as in a criminal case.
Is burden of proof like "beyond a reasonable doubt"?
No, that is the "standard of proof," not the burden of proof – a common misconception. "Beyond a reasonable doubt" is the standard of proof required in a criminal case. The prosecutor must prove his (the state’s) case so that the jurors have no reasonable doubts in order to convict a defendant.
What is the "burden of proof"?
The burden of proof is the obligation of proving the issue in question in the case. That is, the plaintiff or complainant must prove the allegations contained in the complaint. If a wife accuses her husband of adultery as part of the divorce, she has the burden of proof to prove adultery. If a man alleges child abuse by his wife, he has the burden of proof to prove the child abuse.
Who are some expert witnesses that may appear in a divorce?
You may have accountants, financial advisors, or actuaries as expert witnesses, who can testify as to the value of marital property, such as pension plans and stock options. A real estate broker, agent, or appraiser could be an expert witness as to the value of the marital home. A psychologist could be an expert witness when discussing what the best interests of a child may be in a custody issue. You could even have an employment recruiter, headhunter, or career counselor be an expert witness as to a spouse’s job prospects, for the purposes of determining spousal support.
What is "privileged" evidence?
Privileged evidence, more often called "privileged communication," is evidence that cannot be admitted because it is of a particular status. For example, conversations between your lawyer and you are privileged and cannot be admitted to court. Likewise, there is privileged communication between a clergyman and a member of the church, between a doctor and a patient, and, in some states, between a therapist and a patient. There is also the "marital privilege," in which confidential communications between a husband and a wife cannot be admitted.
What is hearsay?
Hearsay can be a very complicated area, which can even trip up lawyers and judges, but generally speaking, hearsay is evidence that is based on the reports of others rather than the personal knowledge of a witness. Hearsay is not admissible in court. An example of hearsay would be having a witness at a trial say, "I heard from Joe’s mom that Joe was at the movies that night." In this case the witness has no personal knowledge that Joe actually was at the movies, he’s just repeating what someone told him. If it’s important to the case to have the word of Joe’s mother, the lawyer should get her in court, because then she can testify from personal knowledge.
If evidence is inadmissible, does that mean that it is also illegal?
No, these two concepts are not the same. Illegally obtained evidence, or evidence that is illegal, is usually evidence that is obtained in violation of some statute, such as a wiretapping statute, or by breaking and entering someone’s home. Inadmissible evidence is evidence that cannot be heard in court because it may be "unduly prejudicial" or may be in violation of a rule of the court, such as the rules of hearsay. Hearsay is inadmissible, but it is not illegal, in that no one will be punished for hearing it, writing it down, or taping it. You just can’t use it in court.
How can some evidence not be admissible?
There are numerous ways that evidence could be ruled inadmissible. For example, if you have watched any television shows dealing with the police, or detectives, or criminals, you are undoubtedly familiar with the Miranda warning, which begins "you have the right to remain silent." This warning originated in a United States Supreme Court case, which said that unless someone is aware of his or her rights under the Constitution and the Bill of Rights, he cannot waive those rights. If evidence is received in contravention of the Miranda warning, for example, if a suspect is not read the warning at all, any evidence that the police may find as a result of the suspect’s questioning is inadmissible.
What is admissible evidence?
"Admissible evidence" may be a little redundant, since one of the definitions of evidence is "the documentary or oral statements and the material objects admissible as testimony in a court of law." You see, "admissible" is part of the definition. For the most part, however, people tend to call all the material objects and testimony that is presented in a court of law, or that is collected by the police or investigators in connection with a trial or dispute, "evidence." "Admissible evidence" simply means evidence that will be allowed into court.
Helpful Tips and Facts
Tips for Testifying in Divorce Court
Tips For Testifying Here are some practical tips for testifying: 1.Listen to the question. If you do not understand the question, ask the attorney to repeat the question. 2.Only answer the question with the shortest answer consistent with the truth. Do not volunteer information. 3.Answer the question truthfully with no justification. 4.Watch out for the compound question. Break it down into two questions. 5.Watch out for the question that assumes facts. 6.Do not use phrases like “that is the truth” or “honestly”. 7.Try to avoid using absolute words, like “no”, “never”, and “all”. 8.Avoid getting boxed in. Answer and always say at the end “that is all I can recollect at this time.
Recorded Evidence
In Texas it is legal to submit tape recorded conversations as evidence. The evidence generally falls under the exception to hearsay as a statement against interest and the key to the admissibility of the evidence and the legality of the recording is that the person recording the conversation actually be a party to the conversation. Without the direct nexus between the recorder and conversation participant, the recording could be considered hearsay.
Being Prepared for Trial
Because your own lawyer is not allowed to ask you leading questions while you are on the witness stand, you may find it difficult to figure out how to answer. If your lawyer asks, "What, if anything, occurred?" or something similarly vague, you may not know what he or she is driving at and get flustered. This is why it is valuable to meet with your lawyer before the trial and go over your testimony. If you believe you will need notes and further preparation to help you remember dates or other information, discuss this with your lawyer.
Mandatory Factors Vs. Marital Fault
Depending upon the jurisdiction, mandatory factors may be more important than fault in the distribution of marital property. A person planning a divorce strategy should ask his or her lawyer about how mandatory factors work in his or her jurisdiction. A person should pose a question to his or her lawyer: "What factors is Judge Jones likely to consider in dividing the goods?" Experienced lawyers come to know how judges think based on past decisions.
Choosing Litigation
The late Learned Hand, a respected federal appeals court judge, said that after death, serious illness or injury, the thing he would most dread in life is being party to litigation.
A Judge’s Word is Final
If a divorce action goes to trial, all decisions about a case will be made by one man or woman -- the judge, whose decision and judgment is probably final (since only two states permit jury trials and few divorce actions are successfully appealed).
Judges Rule on the Law
Judges do the best they can in cases of contested divorce and child custody. However, no judge is a King Solomon, and none of them hold to please both sides in a ruling. A judge’s decision and judgment is the application of the law to the facts, and often the application of the law makes for broken hearts, particularly in the case of child custody where a judge acts in the best interest of a child.