Presenting witness testimony and other evidence at court hearings

Evidence at court hearings

Anytime you go in front of a judge to have them decide an issue in your case, you and the other party must present evidence to help the judge make a decision. The type of evidence you need will depend on what you need the judge to decide. 

There are two main forms of evidence: (1) witnesses, and (2) physical evidence (including documents, records, audio or video recordings, photos, written communications, etc.).

Witness testimony

Witnesses are often the most important form of evidence in family law hearings or trials. YOU will be the most important witness in your case because you were probably a witness to most of the important events in your case. In addition to your own testimony, you may want ask people to be witnesses if they have witnessed important events in your case. 

It is very important to know that your witnesses must personally appear at court to testify. Written witness statements are not allowed as evidence at a court hearing or trial by the rules of evidence.

Who should you call as a witness?

There are many people who may possibly be witnesses in your case, below are some examples:

  • You
  • Friends or family
  • Police officers
  • Child protective services caseworkers
  • Daycare providers or teachers
  • Anyone else with first-hand knowledge about any events in your case
How do you get witnesses to show up in court?

If you have a personal relationship with the witness, you can just ask them to testify and provide them with the date of your court hearing or trial. There is no formal process for having witnesses testify if they agree to show up. 

On the other hand, professional witnesses, such as police officers, caseworkers, teachers, or others involved in your case because of their job , usually need a subpoena before they will show up in court on your behalf. 

You may be able to get a blank subpoena from the courthouse. You will need to fill it out and personally deliver the subpoena to your witness (unless they agree to accept the subpoena in a different way). You will also need to pay the witness a witness fee of $30. 

If you cannot get a blank subpoena from the courthouse, you can hire a lawyer to help you draft and serve a subpoena.

Stages of a witness’ testimony

When a witness testifies at a court hearing or trial, there are three stages for their testimony: (1) direct examination, (2) cross examination, (3) rebuttal.

  1. Direct examination. The first stage of a witnesstestimony is direct testimony. If you are the witness, direct testimony is your opportunity to tell your story. You should tell the judge everything you want them to know about your case. If you are calling a witness, you will have to ask your witness questions during their direct examination. Donexpect the judge to do this for you. If its the other party calling the witness, you should simply sit and listen quietly. Do not make faces or respond to the direct testimony of the other party or their witnesses. You will have an opportunity to respond
  2. Cross examination. The second stage of a witnesss testimony is cross-examination. Cross-examination is optional. When you call a witness (including yourself), the other party gets to ask you or your witness questions after they finish giving their direct testimony. When the other party calls a witness, you can ask their witness questions as well. It is fine to skip cross examination. This usually will not hurt your case. In fact, many parties often hurt their case by asking cross-examination questions because they give the witness the opportunity to keep talking to explain their actions.
  3. Rebuttal testimony. Rebuttal is the last stage in witness testimony. This stage is also optional. This is the opportunity for the person who called the witness to clarify or respond to any information that came out during cross-examination. Sometimes the judge will skip this stage. If you were the witness and the other party asked you questions on cross-examination that you were not fully able to explain, you can respond and explain your answers during cross-examination.
Preparing your testimony

To prepare your testimony, it is helpful to write notes or create an outline of what you want to tell the judge at your restraining hearing. DO NOT write down your testimony word for word. The judge will not want you to read from a piece of paper. They will want to hear your story in your own words. Do not submit your outline as an exhibit (piece of evidence). The outline is just for your own personal use.

Preparing to be cross-examined

The other party, or their attorney if they have one, will be able to ask you questions (cross examine you) after you provide your direct testimony. Here are some pointers for answering cross examinations questions:

  • Pause, take a breath, and think about your answer before you respond to the question.
  • Answer questions truthfully and explain your answers, if necessary.
  • Its okay to say I dont know if you do not know the answer to the question.
  • Its okay to say I do not understand the question or can you clarify what you are asking” or can you repeat the question if you did not understand it the first time.
  • Its okay to say I do not remember instead of trying to make up details about an incident.
  • If the judge interrupts you or The other party, stop talking immediately until the judge tells you to continue talking.
Preparing questions for your witnesses

Generally, the judge will expect you to question your own witnesses. A judge is unlikely to question witnesses for you. You should think about what information you want the witness to provide to the judge and then prepare a list of questions for that witness.

Here are some rules for questioning witnesses:

  • Ask your witnesses open-ended questions. Questions that begin with who,” “what,” why,” “where, and how are good questions for your witnesses.
  • Do not ask leading questions. A leading question is one that suggests the answer in the question. For example, tell me about the time you got drunk in front of our child, would be considered a leading questions. A non-leading way to ask that question is, have you ever got drunk in front of our child?
  • Only ask witnesses about events they have observed directly. Your witnesses cannot testify about things that other people told them. Be sure to limit your questions for your witnesses to things they personally witnessed.
Children as witnesses

Sometimes, children are the witnesses to important events in a case. It is a case-by-case decision to call a child as a witness. There are no laws that prohibit you from calling a child as a witness. There is also no law that says a child must be a certain age to testify. However, if you call a child as a witness you risk a judge being displeased that you unnecessarily involved a child in your court case. Before calling a child as a witness, you should consider:

  • Age / maturity of child: A witness must be deemed competent to testify. They must also be able to provide helpful testimony. Not all children, especially very young children, make good witnesses. You should consider your childs maturity and age when considering to call them as a witness.
  • Availability of other witnesses: Consider whether there are other witnesses who can testify instead of a child about important events in your case.
  • Impact on child: You should also consider the effect that testifying will have on the child. Some
    children may find it traumatic to participate in a court hearing. Other children feel strongly about speaking out against a parent who has harmed their other parent or who has abused them. They may find it empowering to participate in a court trial.
The other party’s witnesses

You likely will not know who the other party calls as a witness until the day of your hearing or trial. However, you should probably assume that the other party will testify on their behalf.

Cross-examining Respondent’s witnesses

After the other party or their witnesses testify, you will have the opportunity to ask cross-examination questions. This is optional. It is unlikely to hurt your case if you skip asking cross-examination questions. 

When it is your turn to cross-examine a witness, be sure you are asking the person questions and not making your own statements or testifying. The best cross-examination questions usually start with: Isnt it true that...” For example, Isnt it true that you were convicted of Assault IV in 2021?”

Here are some rules and guidelines for cross-examining witnesses:

  • You are allowed to ask leading questions during cross-examination. A leading question is one that suggests the answer in the question itself. For example, You were convicted of assaulting me in 2020, werent you? is a leading question.
  • You are not allowed to argue with a witness or tell the judge if the witness is lying. If a witness lies in their testimony, you are not allowed to tell the judge they are lying. Thus, you should avoid asking questions that you think the other party or their witnesses will not answer truthfully.
  • Ask questions that the Respondent or their witnesses cannot easily deny. Questions about a witnesss criminal history or child welfare history are generally a good area of questioning

Sample questions for your witnesses to custody / parenting time issues

  • Primary parent: Who does most of the parenting tasks for our children? How many times have you seen Respondent alone with the children? How many times have you seen me alone with the children? What tasks have you seen me do? What tasks have you seen Respondent do?
  • Witnesses to substance use concerns: Have you ever seen Respondent using alcohol or other controlled substances while with our children? Are there any incidents that stand out? What substances was Respondent using? How much did Respondent consume? How do you know how much Respondent consumed? How did Respondent act? Did Respondent do anything unsafe around our children?
  • Witnesses to verbal abuse of children: Have you ever seen Respondent being verbally abusive with our children? What have you heard Respondent say? How many times have you heard him say things like this to our children? How did our children react?
  • Witnesses to physical abuse of children: Have you ever seen Respondent being physically abusive to our children? What have you seen? How many times have you seen things like this? How did our children react?
  • Sample questions to authenticate evidence

    • Photos / texts: Can you turn to exhibit 4? What is this exhibit? How did you get this document to me for court? Does the exhibit appear altered in any way?
    • Written records: Can you turn to exhibit 2? What is this exhibit? Who created this document? How did you get this to me for court? Does this document appear to be an accurate copy of your report?

    Sample cross-examination questions

    • Questions for respondent: You dont have your drivers license because youve had three DUIIs, correct? Isnt it true that DHS child welfare determined that you neglected our child in 2021? You were fired from your last job due to drinking on the job, right? You were previously convicted of assaulting me in 2019, right? Your current roommate, is a registered sex offender, isnt he? You were convicted of possession of meth in 2021, right?
    • Questions for respondents witnesses: Were you convicted of any felonies in the last 15 years? Were you convicted of any crimes involving dishonesty or false statements in the last 15 years? What crimes were you convicted of? Were you using alcohol or controlled substances during any of the events you testified about? How much did you drink? Isnt it true youre currently in a relationship with Respondent?

    Sample rebuttal questions

    • You were asked about [insert question], do you want to explain your answer further?
    • You were asked on cross-examination about your conviction for [insert conviction]. Do you want to explain the circumstances surrounding that conviction?

    Other Evidence

    In addition to witness testimony, you may also have other evidence that you can use to corroborate (support) your testimony and the testimony of your witnesses. This evidence might include photos, videos, text messages, records, and other tangible evidence. 

    The type of evidence you have will depend on the issues in your case and the unique facts of your case. In family law cases, common types of tangible evidence include:

    • Bank statements
    • Pay stubs
    • Written communications between the parties
    • Photos or videos
    • Criminal conviction records
    What is an “exhibit?”

    When physical evidence is presented at a court hearing, each piece of evidence is called an exhibit.

    What is an “exhibit list?”

    An exhibit list is a list of all the exhibits you may offer at your hearing. Below is an example.

    How do you organize exhibits for a court hearing?

    Prior to your court hearing, you should organize all your exhibits and label them. The first page of every exhibit needs to be labeled with an exhibit sticker and a number. If you have a multi-page exhibit, only label the first page. The petitioner in a case labels their exhibits as “1, 2, 3, 4, etc. The respondent numbers their exhibits “101, 102, 103, etc.” You can get exhibit stickers online from retailers like Amazon. Just search for exhibit sticker. Below is an example of how to label an exhibit.

    The hearsay rule and evidence

    The hearsay rule is very, very complicated. In general, the hearsay rule prevents parties from offering as evidence in court written or oral statements made by people outside of court. For example, if a police officer wrote a written report, that report is considered hearsay. Similarly, medical records, school records, and other common records written by someone else typically fall under the hearsay rule. There are many exceptions to this rule. 

    The biggest exception to the hearsay rules is that you can use written or oral statements of opposing party” that are made outside of court as evidence in court. For example, if the other party wrote you an email or sent you text messages, those written communications are not prohibited by the hearsay rule.

    Records that may not be admissible because of the hearsay rule

    Here are some examples of written evidence that the judge may not allow you to submit as evidence because of the hearsay rule:

    • Police reports
    • Child welfare records
    • Letters from witnesses
    • Medical records
    • Visitation logs from supervised visits
    • Texts or emails from other people who are not a party to your case
    • Audio or video recordings of other people who are not a party to your case
    How do you get hearsay records into evidence at a court hearing?

    The information contained in hearsay records is often very important to your case. The simplest way to avoid the hearsay rule and get the information into evidence is to have the person who wrote or said the hearsay statement testify in court.

    For example, instead of trying to use a police report as evidence, you can have the police officer testify (remember, you may need to get a subpoena). Similarly, instead of trying to use a letter from someone as evidence, have that person come to court and testify about things theyve observed. This is the best way to ensure the judge will be able to consider the information contained in written records.

    Do you need to file your exhibit list and exhibits with the court prior to your hearing?

    The answer depends on whether you are having an in-person or a remote hearing.

    • If you are having an in-person hearing, you will bring your exhibits and exhibit list with you to court. You DO NOT file them with the court clerks. You should bring three copies with you to your court hearing or trial. One for the judge, one for the respondent, and one for yourself. If you have video or audio evidence, you should call the court and ask for instructions on how to get that evidence to the court. Some courthouses may prefer that you put it in a thumb drive and file it several days before your hearing. You also have to show it to the other party before offering it as evidence.
    • If you are having a remote hearing, you should file your exhibits several days in advance of the hearing. You should check with your local courthouse to see how many days in advance you must file your exhibits. You will also need to get the respondent a copy of your exhibits. You can email or mail your exhibits to the respondent or their attorney. If you have audio or video evidence, call the courthouse for instructions on how to submit this type of evidence.
    How do you get the judge to look at your evidence?

    At a formal court hearing, there is a formal process for getting a judge to look at your evidence. You cannot just hand the judge or their assistant a stack of documents and expect them to look at them. Here is the formal process for getting evidence into the record.

    1. Wait to show the judge your evidence until the evidentiary portion of the hearing or trial.
    2. Use a witness to authenticate your evidence. Each piece of evidence must be authenticated. Basically, you need a witness to explain what the evidence is and why its a trustworthy document.
    3. Offer the evidence into the record. After a piece of evidence is authenticated, you need to offer it as evidence. You do this simply by saying to the judge Id like to offer Exhibit #[insert number] into evidence.
    4. Wait for the evidence to be received into the official court record by the judge. After evidence is offered, the judge will decide whether to receive it. Theyll do this by considering any objections the other party raises and whether the rules of evidence allow the evidence it be admitted. If the evidence is received by the judge, then the judge will look at the piece of evidence. They may do this during the hearing or trial or during a recess or break.

    The Commons Law Center Blog is for information purposes only. It is not legal advice.

    posted April 7, 2023

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