Facebook Evidence in Family Court

Published on
July 10, 2017
Written by
Angel Murphy
Family Law

This blog is a follow-up with strategies to get Facebook evidence into (or kept out of) Family Court proceedings using general evidence rules.

Step 1: Proving Relevance

The first step to getting any evidence into the courtroom is proving it is relevant to the matter. The standard the court uses to determine relevance is whether, with or without a piece of evidence, the fact to be proven has a higher chance of being true. Most family law cases meet this burden where the evidence concerns conduct or statements about the other party.The most obvious example of this type of evidence of Facebook in family court would be a custody case where they presented a photo of a parent using illegal drugs, which is visibly relevant to their fitness (or lack thereof) as a parent.

Step 2: Balance of Competing Interests

Even if the evidence is relevant, it must still pass a balancing test of competing interests under the evidence rules. This rule requires the court to balance whether this particular piece of evidence is relevant to the issue. And whether the costs associated with allowing the evidence balances out in the interest of justice. If the cost of allowing the evidence into the courtroom is too high—because it's too harmful or prejudicial to the other party—the court will not allow it in even if it is relevant.The opposing party would have a valid argument regarding a photo of a parent using illegal drugs in our example. The opposing party could argue that allowing this evidence would unfairly prejudice them by portraying them as a criminal or drug addict. As such, in considering photos and their admissibility in family court proceedings, it is important to keep in mind that certain photos, although relevant, may not be admitted if the opponent can successfully argue that the photo will unfairly prejudice them, be a waste of the courts time, or confuse trial issues.

Step 3: Overcoming the Special Issue of Authentication

After proving that evidence is relevant in a family law proceeding, the party must properly authenticate the evidence. To authenticate evidence, the party submitting the evidence must show that the evidence is what they claim it to be. A printout of a screenshot of the Facebook post can prove it. And with a testimony of who knows the profile or photo.An example of authentication is when an ex-spouse tries to admit a Facebook photo of the mother drinking. Ex-spouse wants to introduce the photo as evidence of alcoholism, bad judgment and ill fitness on the mother's part. Anyone at the bar could verify the accuracy of a photo from the night in question.

Step 4: Hearsay as a Restriction on What is Allowed in the Courtroom

Think of hearsay as anything you have previously heard outside the courtroom later repeated inside the courtroom as true. The court defines an actual statement (verbal or written) or nonverbal conduct through action as hearsay. However, some exceptions overcome the hearsay rule and allow certain hearsay evidence in. In family law matters, you could use the following exceptions to allow Facebook posts in:

  • Party Admissions: a statement made by the person against whom the evidence presented allowed as admission. Therefore, the court does not consider it hearsay. It is one of the most common hearsay exceptions in family law cases.
  • Excited Utterances: statement made in response to a startling event while under the stress or excitement caused by the event.
  • Present Sense Impression is a statement explaining an event made while the person is perceiving it or immediately thereafter.
  • Statement of then existing physical or mental conditions. Statements relating to the past or present mental state of mind or physical state.
  • Business Records: Statements contained in a business record that they made and kept in theAn example of a Hearsay exception used in a family court proceeding is when a party posts a picture on Facebook of a new luxury car they just purchased after presenting to the court that their child support payments should be decreased. The party requesting the decrease in child support payments would object to the photo coming in as Hearsay; however, the opposing party could successfully argue—in defense of that objection—that the photo is not hearsay but a party admission because it was made by the other party and uploaded to their Facebook account.

Contact the Murphy Law Firm for More Information

In the future, we may return and discuss some of the finer points in more detail. This evidence guide with examples for use in Family Court proceedings is a guide. Evidence is difficult, and this information is not intended to be sufficient information to proceed without the assistance of a licensed Maryland family law attorney. Whether you are going through a divorce, a custody battle, or any other family dispute, you need an attorney who will advocate on your behalf. An attorney that understands the implications that Facebook evidence can have on your Maryland family court matter and how it interplays with the applicable evidence rules. Contact Angel Murphy with The Murphy Law Firm, LLC today to schedule your family law matter consultation at (240) 493-9116 or angel@amurphylegal.com.If you are active on social media, Like us on Facebook @AMurphyLegal, Follow us on Instagram @AMurphyLegal, and on Twitter @AMurphy_Legal

Angel Murphy

Personable. Passionate. Persistent.

Authentication Process|Evidence|Evidence Guides|Facebook|Facebook Evidence in Family Court|Facebook Posts|Family Court Proceedings|Maryland Family Court|Maryland Family Law|Proving Relevance|Strategies on how to get Facebook Evidence

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