EVIDENCE IN FAMILY LAW 1

I.

RULES OF EVIDENCE

Chapter 1. General Provisions

Art. 101. Scope.

Art. 102. Purpose and Construction These articles shall be construed to secure fairness and efficiency in administration of the law of evidence to the endthat the truth may be ascertained and proceedings justly determined.

Art. 103. Rulings on EvidenceThe contemporaneous objection requirement (specific ground of the objection) arises when a ruling admitsevidence; however, when a ruling excludes evidence, the substance of the evidence must be made known. It isincumbent upon the party who contends his evidence was improperly excluded to make an offer of proof. La.Code Civ. Proc. art. 1636.

Art. 104. Preliminary QuestionsPreliminary questions concerning (1) the competency or qualification of a person to be a witness, (2) theexistence of a privilege, or (3) the admissibility of evidence shall be determined by the court. Compare with La.C.E. art. 1008. In making its determination, the court is not bound by the rules of evidence except those withrespect to privileges.

Art. 105. Limited Admissibility – e.g., suit record admitted in evidence for divorce hearing only.

Chapter 2. Judicial Notice

Art. 201. Judicial Notice of Adjudicative FactsA party is not required to prove facts which may be judicially noticed. Adjudicative facts are those that normally mustbe proved in the lawsuit. A judge may only notice facts which are not subject to reasonable dispute, either becausethey are (1) generally known within the territorial jurisdiction of the trial court, or (2) are readily determined fromaccurate sources. The court may take notice, requested or not; the court must take notice if requested and givenproper information. The parties are entitled to an opportunity to contest the taking of judicial notice.

Examples: judicial notice of distance between two geographical points (relocations, determination if deponent

lives more than 100 miles from courthouse, etc.); passage of time (age of children for termination of childsupport, etc.).

Art. 202. Judicial Notice of Legal MattersTrial court may take judicial notice of its own proceedings; it cannot take notice of other court proceedings —

thus, documentation of such proceedings must be offered into evidence in the ususal manner.

Examples: judicial notice of entire record; judicial notice of previous judgments, orders, and injunctions.

Chapter 3. Presumptions and Prima Facie Evidence

Art. 302. Definitions

1. “Burden of persuasion” is the burden to establish requisite degree of belief in mind of trier of fact.2

In Talbot v. Talbot, 864 So. 2d 590 (La. 2003), the Supreme Court explained:

In civil cases, a party [Plaintiff or Defendant] who has the burden of proof must prove the fact in issue by a

preponderance of the evidence [more probable than not], and not by some artificially created greater

standard. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993); Jordan v. Travelers Ins. Co., 245 So.2d 151, 1155

(1971). Only in exceptional controversies is the clear and convincing standard applied in civil cases ‘where there

is thought to be special danger of deception, or where the court considers that the particular type of claim

should be disfavored on policy.' Succession of Lyons, 452 So.2d 1165. The clear and convincing standard requires

a party to prove the existence of a contested fact is highly probable, or much more probable than its

non-existence. Succession of Lyons, 452 So.2d at 1165.. . .

3. “Presumption” is an ‘inference’ (conclusion that an evidentiary fact exists) created by legislation that trier mustdraw if finds existence of ‘predicate fact.’

Art. 304. Rebuttable PresumptionsThe presumptions herein are rebuttable presumptions which shift the burden of persuasion to the opponent. Rebuttable

presumptions may be controverted or overcome by appropriate evidence, unlike conclusive presumptions which are rules

of substantive law not regulated by this Chapter.

Art. 308. “Prima Facie Evidence of a Fact” is evidence sufficient to establish the existence of that fact; similarly, a “Prima Facie Case” is one which meets the plaintiff's burden of producing evidence, i.e., evidence from which the trier of fact may conclude the existence of every fact essential to plaintiff's recovery.

1 There are two major areas of evidence law: Relevancy and Competency.

2 The burden of proof actually involves two separate burdens. The test for meeting the burden of persuasion is

applied at the end of trial. The burden of production, on the other hand, arises when the party (plaintiff or defendant) presentshis case-in-chief.

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Chapter 4. Relevancy and Its Limits (General Rules (401-403) • Character (404-405) • Habit/Routine (406))

Art. 401. “Relevant evidence” is evidence that has any tendency to make the existence (or nonexistence) of a fact of consequence more or less probable. Evidence is relevant only if it has a tendency to prove or disprove a fact in issue.3

• A distinction should be made between evidence that may be used to prove or disprove a fact in issue (substantiveevidence) and evidence which is relevant only to assess whether a witness should be believed (impeachment evidence; credibility evidence).

Art. 402. Relevant Evidence Generally Admissible; irrelevant evidence inadmissible

Art. 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfairprejudice, confusion of the issues, or waste of time.

h Article 401/403 Balancing Test. Probative worth balanced against fairness & judicial efficiency.4

Art. 404. Character Evidence Generally Not Admissible to Prove Conduct; ExceptionsThe general rule in civil cases is that evidence of a person's character or a trait of his character, such as a moralquality, is not admissible to show that the person acted in conformity with his character on a particular occasion.La. C.E. art. 404(A). This rule requires exclusion of specific instances of conduct only when offered to prove that aperson acted in a particular manner on a particular occasion, that is, the person acted in conformity with hischaracter. It does not require the exclusion of character evidence when the character of a person is an essentialelement in the case. See La. C.E. art. 405(B).

Art. 405. Methods of Proving Character5

On direct, where character evidence is admissible, proof may be by general reputation only; the foundation that thewitness is familiar with that reputation is required. On cross, inquiry is allowable into relevant specific instances ofconduct. Remember, too, in cases in which character is an essential element of a claim or defense (e.g., custody,fault, etc.) proof may also be made of specific instances of conduct. La. C.E. art. 405(B).

• La. C.E. art. 405(B) states: “In cases in which character or a trait of character of a person is an essentialelement of a claim or defense proof may . . . be made of specific instances of his conduct.”

Art. 406. Habit; Routine Practice; Methods of ProofEvidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conductof the person or organization on a particular occasion was in conformity with the habit or routine practice. Theevidence may consist of testimony in the form of an opinion or evidence of specific instances of conduct sufficientin number to warrant a finding that the habit existed or that the practice was routine.

• The first sentence of this Article is included to distinguish its treatment of habit-and-routine-practiceevidence from that of other character evidence, which is generally inadmissible when offeredcircumstantially. See La. C.E. arts. 404-405.

Art. 407. Subsequent Remedial Measures

Art. 408. Compromise and Offers to Compromise

Article 408 does not require the exclusion of evidence otherwise admissible merely because it is presented in thecourse of compromise negotiations, but you have to show that you obtained it some other way. Similarly, thearticle does not require exclusion when the evidence is offered for another purpose, such as proving the bias orprejudice of a witness, or rebutting a claim of undue delay.

3 E.g., Evidence of the character of a person who would have custody of a child is always relevant and admissible —

La. Civ. Code art 134(6), moral fitness — even though the facts of the character evidence occurred prior to a previous judgmenton the matter. See, e.g., Crowson v. Crowson, 742 So. 2d 107 (La. App. 2 Cir. 1999), wherein the appellate court distinguishedbetween the use of evidence to show a material change in circumstances and to show the best interest of the child.

4 E.g., Briscoe v. Briscoe, 641 So. 2d 999 (La. App. 2 Cir. 1994) (in divorce action, fact that husband punched wife eight

years earlier too remote).

5 Character evidence may be divided into four subcategories: a person's (1) general character, (2) specific character

trait, (3) specific acts, or (4) habit. Any one of these may be direct evidence depending upon the nature of the claim or defense.

Thus, general character or a character trait may be direct evidence in a child custody case. In such case, any prejudicial effect is

clearly outweighed by the probative value of the character evidence. The Code of Evidence recognizes this in Article 405(B). The

problem arises when character is not an "essential element of a . . . claim or defense" but is offered to prove a person's conduct

at a time and place in issue. In evaluating relevancy of circumstantial evidence of character, it is important to focus upon the

exclusionary phrase "to prove he acted in conformity therewith." La. C.E. art. 404(A).

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Chapter 5. Testimonial Privileges

Art. 501. Scope of Privileges Privileges are evidentiary in nature, do not create causes of action or other substantive rights, and are applicable toproceedings listed in Article 1101.

Art. 502. Waiver of PrivilegeA claim of privilege may be waived by the voluntary disclosure of a significant part of the confidential communicationby the holder of the privilege, even if unintentional.

Anticipatory Waiver. The privilege may be waived when it is anticipated that the holder of the privilege will use theconfidential communication at trial. In Stumpf v. Stumpf, 613 So. 2d 683, 685 (La. App. 5 Cir. 1993), the appellatecourt explained: “The focus is on the privilege holder, and the sole concern is whether the privilege holder has'committed himself' to a course of action that will require the disclosure of privileged communication.” Thereafter,the court observed that if the wife would stipulate that she would not use the privileged communications (medicalrecords) at the fault trial, her claim of privilege would be maintained. Id. See also Smith v. Kavanaugh, Pierson &Talley, 513 So. 2d 1138 (La. 1987) (extensive discussion of the privilege immunity and the manner in which it can bewaived); see, too, Arsenaux v. Arsenaux, 428 So. 2d 427 (La. 1983).

Art. 504. Spousal Confidential Communications PrivilegeMade privately, not intended for further disclosure, and while married. The exceptions to this privilege effectivelydestroy its application in domestic relations cases, e.g., the privilege does not apply in "a civil case brought by or onbehalf of one spouse against the other." This obviously includes divorce, custody, support, partition, etc.

Art. 505. Spousal Witness PrivilegeOnly applicable in criminal, interdiction, and commitment proceedings; the privilege belongs to the witness spouse.

Art. 506. Lawyer-Client Privilege Confidential communication (whether oral, written, or otherwise) made for the purpose of facilitating the rendition ofprofessional legal services to the client, as well as perceptions, observations, and the like, of the mental, emotional, orphysical condition of the client in connection with such a communication.

• Client’s privilege; may be asserted by client or attorney.

Art. 508. Subpoena of Lawyer (or his Representative) in Civil CasesContradictory hearing required; information sought not privileged and essential to case; subpoena is not intendedto harass; subpoena identifies the material sought with particularity; and there is no practicable alternative meansto obtain the information.

Art. 509. Work Product Rule Not AffectedThe work-product rule, as codified in La. Code Civ. Proc. art. 1424(A), applies only to “writings” — which term isnarrowly defined — and does not include tangible things such as photographs, videotapes, or films.

• Thus, the court shall not order the production or inspection of any “writing” obtained or prepared by party,his attorney, or agent in anticipation of litigation or in preparation for trial. The foregoing information is notsubject to discovery unless it unfairly prejudices the party seeking the production or will cause him unduehardship or injustice; nevertheless, the court shall not order the production or inspection of any part of thewriting that reflects the mental impressions, conclusions, opinions, or theories of an attorney.

Art. 510. Health Care Provider-Patient PrivilegeEither the patient or his legal representative may claim the privilege. Moreover, the person who was the physician,psychotherapist, or healthcare provider (or their representatives) at the time of the communication is presumed tohave the authority to claim the privilege on behalf of the patient or deceased patient.

• “Health condition" is defined as a physical, mental or emotional condition, including a conditioninduced by alcohol, drugs, or other substances. La. C.E. art. 510(9).

• "Healthcare provider" includes psychologist, social worker, and licensed professional counselor, alongwith any officer, employee or agent thereof who is acting in the course and scope of his employment.La. R.S. 13:3734.

Art. 511. Communications to Clergymen There are no exceptions to the privilege.

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Chapter 6. Witnesses (Competency (601-602) · Credibility (607-610, 613) · Presentation of Evidence (611-612))

Art. 601. General Rule of CompetencyEvery person of proper understanding is competent to be a witness except as otherwise provided by legislation.

Art. 602. Lack of Personal Knowledge6 A witness may not testify to a matter unless personal knowledge shown, experts excepted.

h Before a lay witness testifies, the proponent of his testimony must "lay the foundation" by showing the witness’scompetency, i.e., showing that the witness had the opportunity to perceive the facts about which he proposes totestify. The foundation may be established by the witness’s own testimony or inferred from the circumstances. Thepersonal knowledge rule is also related to the opinion testimony rules. See, e.g., La. C.E. arts. 701, 704.

Art. 603. Oath or AffirmationThe purpose of the oath is to alert the witness to the fact that he is required to testify truthfully (credibility).

Art. 604. Interpreters If needed, it is the responsibility of the parties to obtain the services of an interpreter. However, the court has theauthority to appoint an interpreter on its own motion. See La. C.E. art. 706. An interpreter must qualify as an expertpursuant to Article 702. To qualify, the interpreter must demonstrate a specialized knowledge of the languagesufficient to assist the trier of fact in understanding the evidence. Once qualified, the interpreter must take an oaththat he will make a true translation. See also La. Code Civ. Proc. art. 192.1.

Art. 605. Disqualification of Judge as Witness The presiding judge is not competent to testify as a witness. No objection is required to preserve the point.

Art. 607. Attacking and Supporting Credibility Generally (credibility is a subcategory of relevancy — hence, 401/403)7

The credibility of a witness may be attacked on direct or cross by any evidence “having a reasonable tendency to

disprove the truthfulness or accuracy of his testimony.”

A. The credibility of a witness may be attacked by any party, including the party calling the witness.

B. The credibility of a witness may not be attacked until the witness has been sworn, and the credibility of a

witness may not be supported unless it has been attacked. (Here, it can be argued that the only admissible

“credibility boosting” evidence, other than the witness’s explanation of the credibility attacking evidence, is

that authorized by the Code of Evidence—prior consistent statements and reputation for truth and veracity.

However, La. C.E. art. 607(B) permits preliminary questioning of a witness about “his relationship to the

parties, interest in the lawsuit, or capacity to perceive or to recollect,” all of which may have a

credibility-boosting effect.)

There are two (2) methods of impeachment:

C. Intrinsic impeachment. An intrinsic attack takes place when the witness whose credibility is under attack is

directly asked questions about matters affecting his credibility. A witness may be impeached by examining

him about a matter that reasonably tends to disprove the truthfulness or accuracy of his testimony.

D. Extrinsic impeachment. An extrinsic attack occurs when some evidence other than the witness’s own

testimony is used to impeach him. A witness may be impeached by showing his bias, interest, corruption,

defect of capacity, prior inconsistent statements, and other evidence contradicting the witness's testimony.

6 Competency in its narrowest sense asks whether the witness may testify about a particular fact, La. C.E. art. 602, or

give an opinion, Arts. 701-706, in a particular judicial proceeding. The general rule for fact evidence is that a witness may not

testify about a fact unless he had the opportunity to perceive the fact about which testimony is to be given. La. C.E. art. 602.

Whether the witness did perceive the fact and whether he is retelling the fact accurately are issues to be determined by the

trier of fact, who in making the determination is aided by credibility-testing mechanisms, such as (1) requiring that the witness

testify under oath or affirmation, (2) subjecting the witness to cross-examination by the adversary, and (3) allowing the

introduction of evidence which is relevant only to credibility.

7 There are six (6) traditional methods for attacking the credibility of a witness (importantly, the following methods do

not elicit hearsay testimony because the statements are not being offered to prove the truth of the facts being asserted):

1. Bias, interest, or corruption;

2. Defect in capacity;

3. Prior inconsistent statements;

4. Contradiction;

5. Character for truthfulness; or

6. Conviction of crime . . . also admissible to show bias, or as substantive evidence in custody cases (moralfitness).

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Extrinsic evidence is admissible when offered solely to attack credibility unless the court determines that the

probative value is substantially outweighed by the risk unfair prejudice, confusion of the issues, or waste of

time — credibility relevancy (401/403 analysis). * * *

Art. 613. Foundation for Extrinsic Attack on CredibilityExcept as the interests of justice otherwise require, extrinsic evidence of bias, interest or corruption, defectsof capacity, prior inconsistent statements, contradiction, or conviction of crime is admissible after theproponent has first fairly directed the witness’s attention to the statement, act, or matter alleged, and thewitness has been given the opportunity to admit the fact and has failed distinctly to do so.

Bias, Interest, and Corruption. A party may attack credibility by showing the bias, interest or

corruption of the witness. (Bias must be direct or personal against a party, rather than indirect or general

in nature.) The attacking party must first “lay the foundation” by inquiring into the bias during the

cross-examination of the witness. If the witness admits the bias, the attacking party may not pursue the

matter. If the witness denies the bias, evidence which is otherwise inadmissible on the merits of the case

may be admitted to show the bias and thus attack credibility.8

Defects of Capacity. A defect in a witness’s capacity to perceive, remember and retell the truth that does

not make the witness incompetent to testify may be admitted to attack the witness’s credibility. The evidence

may relate to the witness’s age, eyesight, hearing, memory, or discernment. Extrinsic evidence of a defect

in capacity is not admissible unless the proper foundation has been laid, i.e., the witness is given the

opportunity to admit the defect and distinctly fails to do so. Evidence of impairment through substance

abuse should be admissible.

Prior Inconsistent Statements. This is one of the most common and effective means of impeachment.

The impeaching statement may have been oral or in writing; it usually will be contained in an

investigative statement, a deposition, an answer to interrogatories, or in the pleadings or testimony in

another trial or hearing. If a witness has made statements that are inconsistent with his testimony, it

raises questions about the accuracy or truthfulness of his testimony. Prior inconsistent statements are

admissible not for the truth of the prior statement, but only to raise the inference that the statement made

by the witness on the stand is inaccurate or untruthful. As such, it is not entitled to any substantive

weight when considering whether there is sufficient evidence in the record to support the judgment. See,

e.g., State v. Allien, 366 So. 2d 1308 (La. 1978).9

� Notably, prior inconsistent statements of a party are admissible as admissions under Article

801(D)(2)(a) with no requirement of a prior foundation, other than that the statement is one of a

party and is being offered against him. Admissions of a party may be given substantive weight —

evidentiary admissions.

Art. 608. Attacking or Supporting Credibility by Character EvidenceReputation only. A witness’s character for truthfulness is always relevant to his credibility. However, attacking credibility

based on general reputation is seldom used in family law cases. Why? It is not very probative.

• Credibility of witness may be attacked or supported by general reputation evidence only (no opinion evidence), butevidence may refer only to character for untruthfulness or truthfulness. No inquiry into specific acts on directexamination. On direct, specific instances of conduct to attack or support the witness’s character for truthfulness maynot be proved by extrinsic evidence (except convictions); they may be inquired into on crossexam. A witness who testifiesto character of another witness may be cross-examined as to whether he has heard about an act of that witness bearingon credibility.

Art. 609. Attacking Credibility by Evidence of Conviction of CrimeThis is the only instance in which Louisiana law permits a “character for credibility” attack (attacking a witness’s

character for truthfulness on direct) by showing the commission of a single act. When a conviction is admissible to

attack credibility, the evidence is limited to the name of the crime and the date of the conviction; no other details

of the crime are admissible — unless witness opens the door by discussing the details.

Art. 610. Religious Beliefs or OpinionsA witness’s credibility may not be attacked on the basis of his religious or political beliefs. However, religious beliefsare admissible when independently relevant. For example, in a child custody case, the religious views of the partiesshould be admissible pursuant to La. Civ. Code art. 134(2), which directs the court to consider the capacity of theparents to give the child spiritual guidance. See, e.g., Schultz v. Elremmash, 615 So. 2d 396 (La. App. 5 Cir. 1993).

8 The restrictions against the use of specific instances of conduct, such as arrests, pending criminal charges, or prior

bad acts found in Articles 608 and 609, do not prevent their use when relevant to show bias (or when used as substantiveevidence in cases where character is an essential element of the claim or defense).

9 Laying the foundation for Extrinsic Attack:

1. Direct the witness’s attention to the time and place of making the statement and the person to whom it was made(who, what, when, where). No requirement that a written statement be shown to the witness.

2. The witness must be given an opportunity to admit or deny making the prior statement.

3. If the witness admits making the statement, he has been impeached and extrinsic proof is generally inadmissible.

4. If the witness denies making the statement, the extrinsic proof may be admitted.

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Art. 611. Mode and Order of Interrogation and Presentation10

Article 611(A) recognizes that the parties have the “primary responsibility of presenting the evidence and examining thewitnesses.” The court retains authority to control the proceedings in order to ascertain the truth, to avoid undue consumptionof time, and to protect witnesses from needless harassment. (Remember, too, the judge’s role during trial is to receive and weighevidence.)

Article 611(B) retains the "wide open" scope to cross-examination of a witness, unlike the "limited cross" rule in federalcourts. In other words, a witness may be cross-examined as to any matter relevant to the case. (There is one limitation in civilcases. The judge should limit the scope of cross to matters testified to on direct when a party is called by an adverse party ondirect to testify to a limited aspect of the case.)

DIRECT EXAMINATION. Leading questions are generally not allowed on direct examination. However, Article 611(C) specificallylists certain situations when leading questions may be asked on direct examination:

(1) Necessary to develop the testimony of a witness, e.g., young, nervous, English is second language, etc.;

(2) Unable or unwilling to respond to a proper question;

(3) Examining an expert on opinions and inferences;

(4) Hostile witness; and

(5) Adverse party or person identified with adverse party (“reasonably expect” bias in favor of other party).

CROSS-EXAMINATION. Leading questions are generally allowed during cross-examination of a witness. However, leading questions

are specifically not allowed when counsel is examining his own party or a person identified with his party. Thus, if opposingcounsel calls the adverse party on direct examination of his case in chief and after questioning tenders the witness forcross-examination, leading questions may not be used by counsel in the examination of his own client.

REDIRECT EXAMINATION. Concerning redirect examination, you are generally limited to what was brought out on cross unless the

court gives latitude. La. C.E. art. 611(D). If new matters come out on redirect, the other party can get re-cross. Note, too, thata court has discretion to allow a party to recall any witness. State v. Bias, 337 So. 2d 426 (La. 1976).

Practice Tip: Attempt to get adverse witnesses and adverse experts to answer questions "yes" or "no," before theyattempt to answer with an explanation. E.g., State v. Baker, 288 So. 2d 52 (La. 1973) (a witness cannotbe held to a "yes" or "no" answer but is entitled to explain his answer).

REBUTTAL EVIDENCE. The plaintiff shall have the right to rebut evidence adduced by their opponents. La. C.E. art. 611(E).

Art. 612. Writing Used to Refresh Memory(Refreshing Recollection)

If a witness on direct has a problem remembering key elements of his testimony, counsel has three (3) optionsavailable to adduce the evidence:

First, counsel may use leading questions to attempt to jog/revive the witness’s memory. While Article 611(C) generally doesnot allow leading questions on direct, they may be used when "necessary to develop" the witness’s testimony.

Second, if the use of leading questions does not have the desired effect, counsel may produce a writing, recording, or objectand present it to the witness as a means of “refreshing recollection.” (Here, the term "writing" includes recordings, objects,or other things that may be presented to the witness to refresh his memory.) The thing presented to the witness need not bea formal document, but would include anything capable of “jogging” the witness’s memory. After the witness has lookedat the writing, it should be taken away from him. The witness should then be asked if his memory is refreshed and, if so, canhe now testify “from memory independent of the writing.”

Note: Any document used by a witness before or during testimony must be made available to opposing counselupon a request for use during cross-examination; the opposing attorney has the right to examine the documentbefore it is used by the witness, and he can also introduce it into evidence. La. C.E. art. 612(C).11

Third, if the witness is not able to testify from independent memory after examining the writing, counsel may seek to havethe writing itself introduced into evidence under the hearsay exception for recorded recollection (past recollection recorded).See La. C.E. art. 803(5).

Art. 615. Exclusion of Witnesses

Exclusion (Sequestration). On its own motion the court may, and on request of a party the court shall, order that the

witnesses be excluded from the courtroom and refrain from discussing the facts of the case with anyone other than counselin the case. In the interests of justice, the court may exempt any witness from its order of exclusion. Expert witnessesgenerally stay if you can show “presence is essential to presentation” of your case.

• Violation of Exclusion Order. If the sequestration order is violated, the trial court may impose appropriatesanctions including “contempt,” and when insufficient, disqualification. Disqualification of witness testimonyis an extreme remedy which prevents a party from adducing relevant evidence that may assist the finder of factin reaching a just result; it should only be used when the violation occurred with the "consent, connivance,procurement or knowledge" of the party calling the witness. E.g., Briscoe v. Briscoe, 641 So. 2d 999 (La.App. 2 Cir. 1994).

10 The normal order of proof is (1) plaintiff's case-in-chief, (2) defense-in-chief, and (3) plaintiff's case-in-rebuttal. La. Code

Civ. Proc. art. 1632. Surrebuttal is within the discretion of the court, e.g., when new issues are raised in plaintiff's rebuttal.

11 Rule of completeness. The federal rules provide that when a writing is introduced, an adverse party may require the

introduction at that time of any other part of the writing "which ought in fairness to be considered contemporaneously with it." Louisianadid not include a similar rule in its Evidence code, but the jurisprudentially developed "rule of completeness," along with Art. 612(C),may produce the same result.

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Chapter 7. Opinions and Expert Testimony

Art. 701. Opinion Testimony by Lay WitnessesMust be (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of witness’stestimony or determination of fact in issue.

± While an expert may express an opinion without first stating the particular facts or data upon which hebases his opinion (La. C.E. art. 703), a lay witness must first establish the facts that are within hispersonal knowledge before expressing an opinion.

Art. 702. Testimony by ExpertsIf scientific or specialized knowledge will assist trier of fact in understanding the evidence, a witness qualified as anexpert by knowledge, skill, experience, training or education, may testify in form of opinion or otherwise.

± Before an expert may give an opinion, he must be qualified as an expert by showing that he hassufficient expertise to state an opinion that is helpful to the trier of fact. The foundation (competency)for expert testimony is established by questioning the expert before he begins his testimony, sometimescalled the voir dire.

Art. 703. Bases of Opinion Testimony by ExpertsThe facts or data underlying the expert's opinion may be any of the following:

1. Information within the expert's firsthand knowledge;

2. Information presented to the expert at trial, thus approving the use of hypothetical questions .12 (However, evidenceshould come in to support the basis of the questions. Hypothetical questions posed to expert witnesses should not bebased on unproven facts. A witness cannot be forced to assume that unproven facts are true without evidence tosupport the facts. Combs v. Hartford Ins. Co., 544 So. 2d 583 (La. App. 1 Cir. 1989); or

3. Otherwise inadmissible evidence — e.g., hearsay — if it is of a type reasonably relied on by experts in theparticular field in arriving at their opinions. For instance, statements made to an expert mental health professionalby family and friends concerning the fitness of a person to be a parent are the type of evidence that is reasonablyrelied upon by experts in forming an opinion.

º Importantly, Art. 703 permits parties to introduce inadmissible evidence not as substantive evidence, butto support the soundness (or reasonableness) of the expert's opinion. See, e.g., Willie v. American Cas.Co., 547 So. 2d 1075 (La. App. 1 Cir. 1989).13

Art. 704. Opinion on Ultimate IssueThe adoption of this rule has changed the nature of the objection to the admissibility of such opinion testimony from“the question calls for an opinion on an issue to be decided by the trier of fact” to an objection that (1) the questioncalls for an answer that is not rationally based on the perception of the witness, and/or (2) is not helpful to the trierof fact.

• Examples of opinions on the ultimate issue of the case include a mother's statement that the defendant is the fatherof her child in a paternity case, or a family member's opinion that the father should be granted custody in a childcustody case. Such "opinions" are routinely allowed in domestic relations case because the judge is better equippedto evaluate such opinions than a jury. Montelbano v. Montelbano, 415 So. 2d 303 (La. App. 1 Cir. 1982) (laywitness).

Art. 705. Disclosure of Facts or Data Underlying Expert Opinion; FoundationAn expert witness may be cross examined the same as any other witness. The Code expressly allows an expert to beexamined with leading questions. La. C.E. art. 611(C). There are several avenues commonly used to attack an expertwitness.

• Article 705 recognizes the right to attack the opinion of an expert by exposing the weakness of the facts or dataunderlying his opinion. This attack attempts to show that the facts relied on by the expert were false or insufficient.

• A common method of attack is to bring to the expert's attention contrary statements in learned treatises that the expertfailed to consider. If the treatise is established as a reliable authority, the statements may be introduced into evidence.See Article 803(18).

• The expert's credibility may also be attacked by bias, interest or corruption, prior inconsistent statements, or othertraditional methods of impeachment. The qualifications of the expert may be questioned, as well as thecompensation and expenses paid to the expert (bias).

12 By comparison, the use of hypothetical questions is not appropriate for lay witnesses.

13 In Judicial Commitment of J.M., 560 So. 2d 100 (La. App. 3 Cir. 1990), the court held that the petitioner did not

meet his burden of proving that the defendant should be committed. The only evidence introduced by the petitioner was the

testimony of an expert witness. The court allowed the doctor to relate the hearsay testimony of family members of the

defendant as evidence "reasonably relied" upon by psychologists in forming their opinions. However, the statements were not

admissible as substantive evidence to satisfy the plaintiff's burden of proof.

< Remember, too, that even though an expert witness may at times rely on the hearsay statements in forming an

opinion, and may relate those statements in court to demonstrate the basis of the opinion, the court still has the

duty to determine the weight to be given the expert's conclusion based on the facts that support it. The

statements are technically not hearsay because they are not offered in court to prove the truth of the matter

asserted; they are used to support the soundness (or reasonableness) of the expert opinion. The court may, of

course, reject the expert opinion because it is not supported by sufficient facts. An expert, such as a treating

physician, or a mental health evaluator who has interviewed the parties, may also base an opinion on personal

knowledge.

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Art. 706. Court Appointed Experts

This article recognizes the inherent authority of the court to appoint an expert witness in a civil case. See also La. Code Civ.

Proc. arts. 191-192. An expert appointed by the court is an officer of the court from the time of his qualification until the

rendition of a final judgment in the case. La. Code Civ. Proc. art. 373. If the expert fails to perform his court-appointed duties,

he may be subject to punishment for contempt. La. Code Civ. Proc. art. 375. The expert must, of course, consent to the

appointment.

• The fees of the court appointed expert may be taxed as court costs and assessed to either party. La. Code Civ.Proc. art. 192.

• La. C.E. art. 706 does not require the expert to prepare a written report. However, if one is prepared, like all otherexpert reports, it is hearsay if offered for the truth of the matters asserted therein.

• There are several statutes that address the authority of the court to appoint an expert in specific cases.

For instance, La. R.S. 9:331 specifically authorizes the court to appoint a mental health professional toevaluate the parties in a custody or visitation proceeding and to submit a written report.

± It is not clear whether that statute provides for the admissibility of the report as an exception to thehearsay rule. However, since under La. C.E. art. 1101(B) the hearsay exclusionary rule is relaxed inchild custody cases, the court may consider the report as substantive evidence in the custody hearing. A written report of the court-appointed expert should not be admitted if the expert is not available attrial for cross-examination. Mimms v. Mimms, 856 So. 2d 36 (La. App. 4 Cir. 2003).

La. R.S. 9:331.1 authorizes a court in a child custody or a visitation proceeding to order a party to submit todrug testing. It provides procedural requirements for such testing in R.S. 9:397.2 and 397.3. When thosestatutes are complied with, the evidence of the blood test results is admissible. The statutes are discussed inRichardson v. Richardson, 974 So. 2d 761 (La. App. 4 Cir. 2007).

La. R.S. 9:2801 gives the court discretion to appoint an expert to assist in the settlement of a communityproperty proceeding.

• The trial judge is not required to accept the opinion of a court-appointed expert. In Gould v. Gould, 687 So. 2d 685(La. App. 2 Cir. 1997), the court disregarded the opinion of a court-appointed expert that custody should bechanged from the mother to the father. There, the court found that the evidence did not support the expert's opinionand that the expert's expertise was subject to question. However, in Matthias v. Brown, 551 So. 2d 821 (La. App. 3

Cir. 1989), the third circuit cautioned that a trial judge should not disregard uncontradicted expert testimony absenta sound reason.

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Chapter 8. Hearsay (F.W.P.) — subcategory of competency

“Hearsay” is “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in

evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). A “statement” is defined as: “(1) An oral or written

assertion; or (2) Nonverbal conduct of a person, if it is intended by him as an assertion.” La. C.E. art. 801(B).

Hearsay refers to statements that the witness has heard from someone else. When he attempts to say them in court in

order to prove their truth, hearsay occurs. It is important to remember that even if the statement includes a fact

reported to the witness by someone else, the statement will not constitute hearsay unless it is offered by the witness

to prove the truth of that included fact. For example, if a witness were to testify that he ran home because his

children were in danger, he could testify as to the substance of the call to show why he ran home. Such testimony

would not be hearsay. However, if he were to use the statement to show that the children were in fact in danger, then

testimony would be hearsay. You have to ascertain the exact purpose of admitting the evidence.

I. Usually, the fact that the words were spoken will not be relevant, and the hearsay rule will apply to in court testimony

about an out of court statement. However, there are 4 situations in which the fact that the words were spoken will have

independent relevance, regardless of whether they are true, and thus testimony about those words will escape the hearsay

barrier.

One is when the fact that the words were spoken “triggers” a legal consequence; this is sometimes called a “verbalact.” This includes words which form the basis of a defamation claim, words spoken in forming a verbal contract,and words of permission, where the giving or withholding of permission is an essential element of the claim ordefense, such as in negligent entrustment.

The second and third situations in which the fact that the words were spoken will have independent relevance iswhen the state of mind of the speaker or hearer of the words is an issue in the case. Thus, in a negligence action, apre-accident statement by the driver to the passenger that “the tires on my auto are bald” would be relevant to thedriver's negligence (his knowledge of the risk) and to the passenger's contributory negligence (her knowledge of therisk).

The fourth situation is when the statement is offered to attack credibility. The fact that the words were spoken hasrelevance because the issue is whether the speaker, now a witness, can be believed.

II. La. CE art. 802 provides that hearsay is inadmissible “except as otherwise provided by this Code or other legislation.”

The exceptions which admit hearsay are many and varied, and are so comprehensive that most hearsay is admitted if it has

strong relevance and sufficient indicia of reliability. Three of the major groups of exceptions are in the Code itself.

Article 801(D)(2)(a) classifies as non-hearsay admissions and certain other statements which otherwise would fallwithin the hearsay definition. (This party admission is an evidentiary admission which should be distinguishedfrom a judicial admission or judicial confession.)14

Article 803 contains twenty-four (24) exceptions which apply regardless of the availability of the out of courtdeclarant.

Article 804 establishes seven (7) exceptions to the hearsay rule when the out of court declarant is unavailable.

A fourth group of exceptions consists of numerous statutes which make certain types of evidence admissible forcertain purposes.

III. ART. 803. Hearsay Exceptions; Availability of Declarant Immaterial

The 24 exceptions below are not excluded by the hearsay rule, even though the declarant is available as a witness.

(1) Present sense impression. Statements describing or explaining an event or condition made while the declarant was perceiving the event orcondition, or immediately thereafter, are not hearsay.

Example: Telephone conversation with victim (petitioner in Title 46 action), who stated: “He’s walking up thedriveway and looks angry.”

14 Party Admission. La. C.E. art. 801(D)(2)(a). A statement by a party to a lawsuit may always be offered against that

party by his opponent. The statement may be oral or written. There is no requirement that a showing be made that thestatement was against the party's interest when made. Compare with Article 804(B)(3). The statement is not objectionable onthe grounds that it expresses an opinion or that the declarant did not have personal knowledge. The only foundation requiredis to show that the statement was made by the adverse party. Statements by an agent or employee of a party may also beadmissible upon a showing of the agency relation.

L Also defined as non-hearsay is the following: A prior statement by a witness is not hearsay if the declaranttestifies at the trial and is subject to cross-examination concerning the prior statement, and the statement isconsistent with his testimony and is offered to rebut an express or implied charge against him of recent fabricationor improper influence or motive. La. C.E. art. 801(D)(1)(b). Additionally, a statement is not hearsay if the priorstatement is consistent with the declarant's testimony and is one of initial complaint of sexually assaultivebehavior. Art. 801(D)(1)(d).

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(2) Excited utterance. Statements related to a startling event or condition made while the declarant was under the stress of excitement causedby the event or condition are also excluded.

(3) Then existing mental, emotional, or physical condition. This is a statement of the declarant’s then existing state of mind, emotion, sensation, physical condition (such as intent,plan, motive, design, mental feeling, pain, and bodily health) offered to prove the declarant’s then existing mental,emotional, or physical condition, or his future action. (E.g., What were you thinking then? What did you do?)

Other Examples: Witness testified that domestic-abuse victim had previously stated: “My neck is stiff, and my throat is sore.”

Victim stated that “she couldn’t walk because her leg was injured.”

(4) Statements for purposes of medical treatment and medical diagnosis in connection with treatment These are statements made for purposes of medical treatment and/or medical diagnosis in connection with treatment,e.g., statements describing medical history, or past or present symptoms, pain, or sensations, or the inception or generalcharacter of the cause or external source thereof insofar as reasonably pertinent to the treatment or diagnosis inconnection with the treatment. Key is reasonably pertinent to treatment or diagnosis in connection with the treatment.

(5) Recorded recollection.15

These are statements contained in a memorandum or record, provided the proper foundation is laid. Article 803(5)should be distinguished from Article 612 (writing used to refresh recollection). Under Article 612, the witness is shownthe writing and if his memory is refreshed, the writing is not introduced into evidence. The witness testifiesindependently from the writing. Under Article 803(5), if the witness’s memory is not refreshed and he cannot testify tothe facts contained in the writing, the writing itself is introduced into evidence.

(6) Records of regularly conducted business activity — includes all businesses, professions, etc. Requirements:

1. Record in any form;2. Made at or near time;3. Information from person with knowledge;4. Made and kept in course of regularly conducted business;5. Regular practice to record; and6. All shown by custodian or other qualified witness.

(Note: The exception is inapplicable unless the recorded information was furnished to the business either by aperson who was routinely acting for the business in reporting the information or under circumstances in which thestatement would not be excluded by the hearsay rule. Public records which are specifically excluded under publicrecords exception do not qualify.)

(7) Absence of entry in records of regularly conducted business activity. To prove nonoccurrence if the matter was of a type regularly preserved.

(8) Public records and reports.16

This exception allows the admission of certain “records, reports, statements or data compilation, in any form, of apublic office or public agency.”

• The kinds of records admissible under this exception are those setting forth (1) the regularly conducted andregularly recorded activity of the office or agency, (2) matters observed by the office or agency pursuant to aduty imposed by law to report, and (3) factual findings resulting from an investigation made pursuant toauthority granted by law. The first two kinds of records present little difficulty since the public office oragency has first hand knowledge of the information and there is little likelihood of fabrication. The third kind— investigative reports — presents problems. Note: The Louisiana Code of Evidence places limitations onthe use of investigative reports, barring from admission under the exception (1) investigative reports by lawenforcement personnel, (2) any investigative report when offered by the government as a party to litigation,and (3) factual findings resulting from investigation of any particular complaint, case, or incident, includingan investigation into similar occurrences.

(9) Records of vital statistics. Used, for example, in proving family relationships. Such records include birth and death records, acknowledgments ofpaternity, marriage, annulment and divorce records, and adoptions. In addition, La. R.S. 40:42 provides that anyrecords on file with the Division of Vital Records of the State Registrar of Vital Statistics are admissible as “prima

15 For a writing to be admissible under this exception, the proponent must make the following showing:

1. There exists a writing containing facts relevant to the lawsuit;

2. The witness had personal knowledge of the facts contained in the writing;

3. The witness now has insufficient recollection to allow him to testify fully and accurately;

4. The witness either made or adopted the writing while it was fresh in his memory; and

5. The writing accurately reflects the witness’s prior knowledge.

16 A statute may provide a special hearsay exception for a certain public record or report. The statutory language may

provide that the record or report is “prima facie evidence”, see, e.g., La. R.S. 13:3712 (records of the State of Louisiana), or“shall be received in evidence as prima facie proof of its contents.” See, e.g., La. R.S. 13:3714 (hospital records). The statutorylanguage usually is aimed at satisfying the original writing and authentication requirements, but it also may provide anexception to the hearsay rule. Because there is usually no legislative history, interpretation of the statute must be based uponsound evidentiary principles. Whether a statute making a public record admissible in evidence avoids the hearsay rule (and notmerely satisfies the authentication or original writing requirements, or both) should depend upon (1) the probable accuracy of therecord, (2) the difficulty that would be presented by requiring the in-court testimony of the custodian, and (3) the probableimportance of the evidence in the kinds of cases in which it is likely to be used.

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facie” evidence of their contents. If records of vital statistics are going to be introduced at trial, the proponent shouldobtain a certified copy with the official seal of the state agency. Records of vital statistics are relevant in a number offamily law trials, such as paternity, annulment, support, and child custody cases

(10) Absence of public record or entry.

(11) Records of religious organizations. In addition to vital statistics, the records of churches and other religious organizations sometimes contain statementsconcerning birth, marriage, divorce, ancestry, or relationships by blood or marriage. Article 803(11) authorizes theadmission of these records against a hearsay objection. Statements in such records may be used as evidence of bothrelationships and dates. The person who made the relevant statement does not have to be called as a witness. However,an official, usually the custodian, of the religious organization must testify to authenticate the record and establish thatit is a “regularly kept record” of the religious organization. The requirement that the record be regularly kept isdesigned to insure the trustworthiness of the statements in the record under the theory that religious organizations havean interest in making sure that their records contain reliable information. Finally, the proponent must satisfy theoriginal writings rule. The subpoena to the witness must specify that he produce the original record at trial. The judgeshould allow the substitution of a copy upon its receipt into evidence.

• Article 803(11) authorizes the receipt into evidence in a paternity action of a baptismal record containing astatement by the mother as to who is the father. See also La. Civ. Code art. 193. Obviously, the mother mayhave some motive to fabricate in this situation, but that goes to the weight of the evidence rather thanadmissibility.

(12) Marriage, baptismal, and similar certificates. Article 803(12) creates a hearsay exception for statements of fact contained in marriage, baptismal, and similar certificates. The statement must be made by a clergyman, public official, or other authorized person, and must state that he performed the ceremony mentioned in the certificate.

(13) Family records. Article 803(13) provides for a hearsay exception for statements concerning matters of personal or family history that are contained in bibles, genealogy charts, rings, pictures, tombstones, and on other such items. Such statements would include those relevant to parentage, ancestry, marriage, and death. The items must be authenticated to be actual family bibles, pictures, etc., and the original must be produced. See La. C.E. arts. 901, 1001 et seq. In the case of tombstones or crypts, obviously the inscriptions may be related by witnesses without having to bring those items into court. See Article 1004(5).

(14) Records of documents affecting an interest in property. Must be recorded in public office; proves contents, execution, and delivery.

(15) Statements in documents affecting an interest in property. Unless later dealings with property have been inconsistent with truth of statement.

(16) Statements in ancient documents. (30-years old or more, with authenticity established)

(17) Market reports, commercial publications. Lists, directories, or other published compilations generally relied upon.

(18) Learned treatises. Authority established by an expert or judicial notice; may be read into evidence.

(19) Reputation concerning personal or family history. Reputation testimony may be received concerning a person's personal or family history. See also La. Civ. Code arts. 194-195. When proving parentage by reputation, it may be shown that the child was always called by the surname of the alleged father, that the alleged father treated the child as his own, and that the family and community recognized the child as the child of the alleged father. La. Civ. Code art. 194.

(20) Reputation concerning boundaries or general history. (Reputation must arise before controversy)

(21) Reputation as to character. (Among person's associates or in the community)

(22) Judgment of previous conviction. Evidence of final judgment entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging person guilty of a crime punishable by death or imprisonment in excess of six months, and offered to proveany fact essential to sustain the judgment.

(23) Judgment as to personal, family, or general history, or boundaries. If same would be provable by evidence of reputation

(24) Testimony as to age.

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IV. ART. 804. Hearsay Exceptions; Declarant Unavailable

A. The term "unavailable" means:

• Exempted by privilege

• Refuses to testify

• Lacks memory

• Dead or ill

• Absent despite process (not unavailable if absence due to the wrongdoing of the proponent of the statement)

B. There are seven (7) hearsay exceptions if declarant is unavailable:

(1) Former testimony. If the party against whom the testimony is offered had the opportunity and similar motive to examine orcross-examine the declarant; expert opinion evidence is not admissible under this provision.

(2) Statement under belief of impending death. Statement under belief of imminent death concerning what declarant believed to be cause or circumstances of hisimpending death.

(3) Statement against interest. Statement against proprietary or pecuniary interest, or having tendency to invalidate declarant's claim, or exposedeclarant to civil or criminal liability.

(4) Statement of personal or family history. If the alleged father is deceased or otherwise unavailable in a paternity action, his own statements concerning hisrelationship with the child may be admissible if made before the filing of the lawsuit. While normally thestatements by a party may be used against him, under Article 804(B)(4) a party's own statements may be used inhis favor. This exception would be particularly useful when the father is an absentee and is being defended by acurator.

(5) Complaint of sexually assaultive behavior. Statement by person under twelve years and is one of initial or otherwise trustworthy complaint of sexuallyassaultive behavior.

(6) Other exceptions — Residual Hearsay ExceptionA statement not specifically covered by any of the foregoing exceptions if the court determines that, consideringall pertinent circumstances in the particular case, the statement is trustworthy and other provisions of the rule aremet.

(7) Forfeiture by wrongdoing.

Art. 805. Hearsay Within Hearsay

Art. 806. Attacking and Supporting Credibility of DeclarantIf a hearsay statement is admitted under an exception to the hearsay rule, the credibility of the person who made

the statement (the declarant) may be attacked as if he were on the stand testifying. Thus, the declarant's prior

inconsistent statements, evidence showing his bias, defect in capacity, conviction of a crime, or character for

truthfulness is admissible to attack credibility. Importantly, the usual foundation for extrinsic attack on credibility

is not required. The opponent of the hearsay statement may call the declarant to the stand and examine him

through the use of leading questions.

V. Statutory Exceptions See Appendix B.

Additional Notes: A party seeking to admit evidence under an exception to the hearsay rule has the burden to establish theexception’s application. Doyle v. City of New Orleans, 46 So. 3d 197, 202 (La. App. 4 Cir. 2010).

• Remember, too, when a writing is offered into evidence and the relevancy of the writing depends upon the truth ofthe written words, the writing is hearsay under La. C.E. art. 801 and is inadmissible unless it is otherwise treated asnon-hearsay or falls under an exception. See, e.g., Hudson v. Cozart, 438 So. 2d 674 (La. App. 2 Cir. 1983); Austinv. Pascarelli, 612 So. 2d 201 (La. App. 4 Cir. 1992); Arkla, Inc. v. Maddox and May Bros. Casing Service, Inc., 624So. 2d 34 (La. App. 2 Cir. 1993) (an affidavit is generally inadmissible hearsay); See also Michael F. Smith, CPA v.Alford, 906 So. 2d 674 (La. App. 1 Cir. 2005) (an affidavit is hearsay and is not competent evidence unless its use isspecifically authorized by statute); Duhon v. Petroleum Helicopters, Inc., 554 So. 2d 1270 (La. App. 3 Cir. 1989)(overruled on other grounds by Green v. Industrial Helicopters, Inc., 593 So. 2d 634 (La. 1992)) (magazine articlesare inadmissible hearsay although self-authenticating).

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Chapter 9. Authentication and Identification (F.W.P)17

The "authenticity" rule relates to whether the subject of an evidentiary offering is what it purports to be. For example, A sues Bfor breach of contract, and attempts to introduce into evidence a document that purports to be a written contract signed byboth A and B. In fact the document is a forgery because A had signed B's name without authority. The document is notadmissible. It is not genuine. It is not what it purports to be.

• In establishing authenticity, the proponent is not constrained by any "best evidence." Authentication may beaccomplished by direct evidence, such as testimony of a witness with first hand knowledge, or circumstantialevidence, such as the place in which a document is found. Burden of proof: preponderance of evidence. BarriereConst. Co., Inc. v. Systems Contractors Corp., 764 So. 2d 127 (La. App. 4 Cir. 2000).

Art. 901. Requirement of Authentication or Identification — Who • What • When • Where (or What, Who, When, Where)

A. Authentication: Satisfied by evidence sufficient to support finding that matter is what proponent claims.

B. Illustrations: (not limited to these):

(1) Testimony that evidence is what is claimed.

(2) Handwriting: Non-expert opinion as to genuineness, based upon familiarity not acquired for purposes of litigation.

(3) Comparison by trier of fact or expert with authenticated specimen (“exemplar”).

(4) Distinctive characteristics in conjunction with circumstances.

(5) Voice identification: By hearing voice, whether firsthand or electronic, at any time under circumstances connecting it with alleged speaker.

(6) Telephone conversation: Call made to assigned number for person or business, if (a) in the case of person,circumstances (including self-identification) show person answering is person called, or (b) if made to business

number, the conversation related to business usually transacted over phone.

(7) Public records: Evidence that it was authorized to be recorded, was in fact recorded, and is from a public office.

(8) Ancient document: (a) no suspicion as to authenticity; (b) from place it likely would be; and (c) in existence 30 years or more.

(9) Process or system: Evidence describing process and showing it produces accurate result.

(10) Method provided by legislation: Any method prescribed by Congress or Louisiana Legislature.

Art. 902. Self-Authentication (extrinsic evidence not required)18

(1) Domestic public document under seal (seal and an attesting signature; includes electronically generateddocuments and seals).

(2) Domestic public document not under seal. (a) signed by official without seal, and certified by official with seal; (b)

17 Evidence presented during a trial may consist of oral testimony, documents and other writings, demonstrative evidence, and

real evidence.

Oral testimony requires as a foundation that the witness has personal knowledge of the matter about which he is testifying.

Documents and other writings. Here, a witness must authenticate (identify) the document unless it is self-authenticating.

Demonstrative evidence is similar to real evidence in that the trier of fact may perceive relevant information by applying his orher senses to the evidence. It differs from real evidence in that demonstrative evidence is not the tangible object involved in theoccurrence that forms the basis of the litigation but is a model, duplicate or other illustration of it. Demonstrative evidenceaccompanies and illustrates the testimony of a witness with first hand knowledge or the testimony of an expert witness. More oftenthan not, “demonstrative evidence” can be “distinguished from real evidence in that it has no probative value itself, but servesmerely as a visual aid in comprehending the verbal testimony of a witness or other evidence” and includes charts, maps, orphotographs; demonstrative evidence is referred to by the witness when testifying and is not subject to the formal requirementsof authentication unless it is offered into evidence.

Real evidence is any tangible object which was involved in the events that gave rise to the litigation, such as the gun in amurder trial. Real evidence must be relevant and competent. In this context, competency means that the trier of fact must beable to perceive a relevant fact by application of the trier's senses to the object, or an expert must make the perception andprovide it for the trier of fact through testimony at trial. Relevancy with respect to real evidence means that the perception willmove the trier of fact's mind off “dead center” on an issue in the case. Essential to relevancy is identification of the realevidence as having some connection with the case.

To be admitted at trial, real evidence must be identified (authenticated). The identification can be visual, that is, bytestimony at trial that the object exhibited is the one related to the case, or by circumstantial evidence, such as adistinctive characteristic of the thing. Alternatively, the evidence can be identified by a chain of custody, that is, byestablishing the custody of the object from the time it was seized to the time it offered into evidence. For identification,it suffices that the foundation is established when it is more probable than not that the object is the one connected tothe case. Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather thanthe admissibility. State v. Sam, 412 So. 2d 1082 (La. 1982).

18 For instance, a self-authenticating document on its face satisfies the requirement of authentication and a witness is not

required to testify that the document is what it purports to be. The proponent simply offers the document into evidence. Note, too,satisfying the authentication requirement does not obviate an objection based on relevancy, hearsay, or original writings, nor does Article902 prevent the opponent from challenging the authenticity of the document. E.g., Namas Noor Sdn Bhd v. Williams, 112 F. Supp. 2d580 (M.D. La. 2000) (A person denying the validity of a signature on an authentic act bears the burden of proving forgery by"convincing proof.").

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Certified Louisiana public documents when certified as being the original by official who identifies official position and has custody or is authorized to make certification.

(3) Foreign public documents (attested to by officials in accordance with foreign law, with final certification).

(4) Presumptions under Acts of Congress and the Louisiana Legislature. Signature, document, or other matterdeclared presumptively or prima facie genuine or authentic.

(5) Official publications (books, pamphlets, etc., purporting to be issued by public authority).

(6) Newspapers and periodicals.

(7) Trade inscriptions, etc. (inscriptions, tags, labels affixed in course of business indicating ownership, control, origin).

(8) Acknowledged documents (with certificate of acknowledgment by notary or other authorized official).

(9) Commercial paper and related documents (to the extent provided by general commercial law).

(10) Labor reports (from sources listed in this subparagraph)

Art. 903. Subscribing witness’s testimony unnecessary The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of thejurisdiction whose laws govern the validity of the writing.

Art. 904. Self-authentication of copies of public documentsWhen an original public document is deemed authentic without proof by extrinsic evidence as provided in Article902(1), (2), or (3), a purported copy of the document also shall be deemed authentic when certified as true or correctby the custodian or other person authorized to make that certification, by certificate complying with Article 902(1),(2), or (3).

• When a party offers a copy of a government document in evidence, he must satisfy two dimensions of the

authentication requirement: (a) that the copy itself is a true copy, that is, it is an accurate reproduction of the originaldocument, and (b) that the original document is genuine. If a party shows that the copy of a governmental documentsatisfies the terms of this Article, both dimensions of the authentication requirement have been satisfied.

Art. 905. Self-authentication of other public records

A. Extrinsic evidence of authenticity not required for admissibility of document purporting to be a documentauthorized by law to be recorded or filed and actually recorded, when properly certified. B. Document which purportsto be a copy of an original document described in Paragraph A shall be deemed to be as authentic as the original whenproperly certified. C. Document which purports to be a copy of an original document, other than a documentdescribed in Paragraph A, which is recorded or filed in a public office, shall be prima facie evidence that the copyaccurately reflects the contents of the filed document, when properly certified.

• This Article deals with private documents that are filed or recorded in a public office and copies thereof. UnderArticle 905, if an original private document (Article 905(A)) or copy thereof (Article 905(8 )) is (a) filed orrecorded in a public office as authorized by law, and (b) it is characterized as presumptively or prima faciegenuine or is otherwise made admissible by statute, it is deemed to be self-authenticating by this Article if itcomplies with the certification requirements provided therein.

A private document that is not made self-authenticating by statute is not deemed to be self-authenticating underthis Article by the mere fact that a statute authorizes it to be filed or recorded in a public office. However, underArticle 905(C), a copy of such a document that is certified as provided therein, satisfies one dimension of theauthentication requirement, that is, it is regarded as an accurate representation of the original document. But, asstated in the previous paragraph, inasmuch as Article 905(A) does not make the original of such a documentself-authenticating, in order to satisfy the second dimension of the authentication requirement, the genuinenessof the original will have to be shown "by evidence sufficient to support a finding that the matter in question iswhat its proponent claims."

Notes: Art. 901:Introducing Documents and Other Writings (General Rules):

Show to opposing counsel and mark for identification (could be original or duplicate); have witness identify it; questionwitness so that instrument is what it purports to be, La. C.E. art. 901(A); question witness on instrument; introduce it. Untilintroduced, the "evidence" does not speak for itself. (Mark Identify Authenticate Offer into evidence).

Introducing PhotographsShow to opposing counsel after you mark it; authenticate it, i.e., it is what it purports to be, through witness, and can beauthenticated by any person familiar with the scene, that is, testimony of any competent witness who has sufficientknowledge to testify that the photograph fairly and accurately depicts what it purports to represent. McElroy v. AllstateIns. Co., 420 So. 2d 214, 218 (La. App. 4 Cir. 1982).

• A picture is worth 1,000 words. Authentication: Photographs are admissible if it appears as though the Judgecould have examined the subject of the photographs at the time they were taken. See supra. Relevancy:Photographs are admissible if they would assist a witness in illustrating or explaining testimony, assist the Judgein understanding the case, or corroborate or impeach oral testimony. Remember, too, relevancy requires proofof the time and place at which the photographs were taken. Original Writing Rule: Photographs are “writings”and must satisfy the original writing rule.

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Introducing Video Tapes Courts usually treat video tapes the same as photographs. The admissibility of a video tape is determined on acase-by-case basis according to the specific facts and circumstances. Alvarez v. Se. Commercial Cleaning, LLC, 136 So. 3d329, 336 (La. App. 5 Cir. 2014). Courts consider 3 factors to determine the admissibility of a videotape: (1) whether itaccurately depicts what it purports to represent [Authentication]; (2) whether it tends to establish a fact of theproponent's case [Relevancy]; and (3) whether it will aid the judge's understanding [Art. 401/403 Balancing Test]. Id.

• If you are objecting to the video tape, argue that it is hearsay because there is no witness who can be crossexamined as to the making of the video tape. This, of course, can be remedied by having the person who tookthe video tape present to testify, i.e., investigator, eyewitness, etc. Make sure there is a running date on thevideo tape in order to establish the time at which it was taken. If there is no date on the video tape, it cancertainly be argued that the tape is not relevant absent a showing that the tape was made during a relevant timeperiod.

Introducing EmailsCourts consider emails a mix between computer records and written correspondence, both of which are admissibleevidence. To be admissible, emails offered at trial must be relevant to the issues of the case. Courts will consider emailsrelevant if the emails tend to make more or less probable the existence of a consequential fact. To admit emails intoevidence, attorneys must also authenticate the emails. In Sea-Land Serv., Inc., 285 F.3d 808 (9th Cir. 2002), the court foundan email to be authentic because of an electronic signature at the end of an email message identifying the name andbusiness affiliation of the sender. (Many people incorrectly expect their emails to be subject to privacy protection.)

Introducing Social MediaHere, too, the general admissibility rules cover the admission of electronically stored information: the potential socialmedia evidence must be (1) relevant, (2) non-hearsay, depending on the purpose of the proffered evidence, (3) authentic,and (4) an original writing or an acceptable duplicate. While social media's admissibility is treated generally the same asall other evidence, courts have struggled to apply a uniform approach to authenticating social media content. See, e.g.,Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (CD. Cal. 2002) (finding that printouts are admissible whenthey show the dates and web addresses, are in an acceptable form, and are supported by witness testimony). Additionally,the court must deem that the printouts accurately reflect the data to satisfy the original writing requirement. (Note:Depending on a user's privacy settings, accessing social media content can present many problems. Generally, if a socialmedia page is visible to the “public,” an attorney is free to access, print, or save the content for future use.)

Notes: Art. 904:For an example of the authentication of a copy of a divorce decree from another state, see Lepard v. Lepard, 722 So. 2d367 (La. App. 2 Cir. 1998), wherein the second circuit cited La. C.E. arts. 902 and 904, and then explained: "The defendantfiled into the record a copy of the Mississippi decree of divorce which had been certified by the recorder of Union County,Mississippi, to be a full and correct copy of the original file. The recorder's seal and signature were certified by the judgeof the chancery court. The recorder then certified the judge's qualifications."

In State v. Gipson, 850 So. 2d 973 (La. App. 2 Cir. 2003), in a multiple offender hearing, the court upheld admission of thedefendant's arrest sheet, bill of information, and judgment of conviction. The copies of the bill of information andjudgment were certified as true copies by the deputy clerk of the district court. These documents were also selfauthenticating under Art. 902(1) and 904. With respect to the arrest record, the court relied on R.S. 15:457 and 15:459.At trial, the state introduced a certified copy of the photostatic copy of microfilm of the arrest record sheet. It wasproperly certified under R.S. 15:457 and 15:459.

Notes: Art. 905:Newpark Resources, Inc. v. Marsh & McLennan of Louisiana, Inc., 691 So. 2d 208 (La. App. 1 Cir. 1997) (trial judge errsin admitting letters which are not self-authenticating or authenticated merely because they were produced by the partyagainst whom they are offered in response to a discovery request).

In Nikolaus v. City of Baton Rouge/Parish of East Baton Rouge, 40 So. 3d 1244 (La. App. 1 Cir. 2010), the plaintiff, duringdiscovery, had been asked to produce a copy of her homeowner's insurance policy. She did so. At trial, when this policywas offered by the defendant, it was rejected because it had not been certified. The court stated that the mere fact thatit was produced by the plaintiff as a result of a discovery request did not authenticate the policy. The court noted, "weknow of no code article, statute or case that automatically makes a response to a request for production an admissionor otherwise admissible on the basis that it was produced in discovery alone."

In Clement v. Graves, 924 So. 2d 196 (La. App. 1 Cir. 2005), the only evidence plaintiff offered to authenticate a termiteinspection certificate was her own testimony. She testified that the certificate evidenced her agreement with the termitecompany, but she did not testify as to who completed or signed the form or who had given the form to her. Held, thecertificate was not properly authenticated and should not have been admitted into evidence.

In State v. Taylor, 875 So. 2d 962 (La. App. 5 Cir. 2004) (911 Tape), witness testified that (1) she telephoned "911" threetimes to lodge a complaint, (2) she subsequently produced an audio tape of those calls from the parish "911" dispatch,(3) the tape did not leave her possession after she purchased it, and (4) the tape had not been altered. Witness alsoidentified one of the voices as her own, and testified that the tape accurately reflected the conversation she had with the911 operator. Held, the trial judge erred in holding that the tape had not been properly authenticated.

E-mail messages and print outs from web sites present special evidentiary problems. The major problem is authentication;it is not clear that obtaining a web site or using an e-mail address is sufficient identification of the author. Lesser problemsare hearsay (although proper identification could make the print-out an admission, when used against the author) andthe original writing rule (which may be satisfied by the broad provisions in La. C.E. art. 1001 et seq.). For recent casestreating some of these issues, see Sea-Land Service, Inc. v. Lozen Intern., LLC., 285 F.3d 808 (9th Cir. 2002), and Perfect10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002).

Additional Notes Regarding Authentication: Authentication of documents rarely is a problem since many documents are

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self-authenticating, i.e., no proof of authenticity is required. Louisiana Code of Evidence articles 902, 904 and 905 providethe general rules for self-authentication. An understanding of these rules requires a distinction between public and privatedocuments.

A public document (“public record”) is one generated by a public authority, and includes legislation, judicial decisionsand reports of public bodies. See La. C.E. art. 902 cmt.(b); La. C.E. art. 901(B) cmt.(f).

A private document is one generated by the citizenry although sometimes subsequently recorded in a public office.

Private documents, particularly those affecting immovable (real) property, generally are recorded in a public office, butsuch recordation does not make them self-authenticating. (La. C.E. arts. 902(1) and (2) apply to “public” documents, i.e.,documents generated by public bodies.) A private document is self-authenticating if it is an “authentic act” or is an “actunder private signature duly acknowledged” or is “acknowledged in some other manner provided by Louisiana law” (La.R.S. 13:3720) or the “law of the jurisdiction in which it is acknowledged.” If a private document which is self-authenticatingis recorded in a public office, a copy certified by the custodian of the public office also is self-authenticating

An authentic act and an act under private signature duly acknowledged are self-authenticating and thus may beadmissible without extrinsic evidence. E.g., agreements between spouses, such as antenuptial contracts, donations,property settlements. Similarly, a waiver of service/citation under La. Code Civ. Proc. art. 1201(B) in authentic formwould need no further foundation for admissibility; whereas a simple written waiver would require testimony authenticating the signature.

Practice Tip: Because authentication of the genuineness of a particular document must always be satisfied for it to beadmissible, an exhibit that is not authenticated does not constitute competent evidence. Schexnayder v. Gish, 948 So. 2d1259, 1264 (La. App. 2 Cir. 2007). As a result, even if the substance of a document is considered trustworthy and clearlyadmissible, you are still required to authenticate the genuineness of a particular document for it to be admissible. Id.

± As a practical matter, many trial courts do not require formal authentication of a document used to attackcredibility, but there is no exception to the rules on authentication for the use of impeaching evidence.

Remember, too, satisfaction of the authentication requirement does not mean that the document is admissible. Theother rules of evidence — such as relevancy, hearsay (if offered to prove terms), and original writing (if offered toprove terms) — must be satisfied. For example, an arrest record may be properly authenticated but its contents mightbe barred by the hearsay rule.

Stipulations as to the Admissibility of Exhibits. Trial counsel will often accommodate their colleagues by stipulating tothe foundational proof and agreeing to the admission into evidence of exhibits. This approach is generally laudablesince you will save expenses and the time of witnesses, attorneys, and the Court. Most courts and attorneysaggressively seek such stipulations during pretrial conferences or during trial. Practice Tip: Counsel should clarifywhether the stipulation covers the foundation and admissibility of the document at issue (authentication) andwhether it also covers the substance of the document, i.e., the facts contained therein (hearsay).

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10. Contents of Writings, Recordings, and Photographs (F.W.P.)

The original writing rule rarely causes much difficulty, for a number of reasons. One is that parties may execute importantdocuments in duplicate or other multiple originals. Another is that the Code of Evidence provides a broad definition of "duplicates"and in most cases makes a duplicate admissible in the same manner as the original.

• Remember, too, the original writing rule does not apply unless a party is seeking to prove the terms of a writing. Thus,the rule does not apply if, for instance, the subject of the evidentiary offering is real evidence, demonstrative evidence,or impeachment evidence.

Art. 1001. Definitions

(1) “Writings" and "recordings" include words set down in handwriting, printing, photography, magnetic impulse, electronic recording, etc.

(2) "Photographs" include still photos, x-ray film, video tapes, and motion pictures.

(3) "Original" includes counterpart intended to have same effect; negative and print of photo; and printout from computer or similar device.

(4) An "optical disk imaging system" is a storage system that utilizes non-erasable Write Once Read Many (WORM) optical storage technology.

(5) "Duplicate" includes counterpart of same impression as original by photographic, electronic, mechanical, or chemical reproduction, etc.

(6) "Electronic imaging" is the process of storing and retrieving any record or other information through the use of electronic data processing, or computerized, digital, or optical scanning, or other electronic imaging system.

Art. 1002. Requirement of Original. To prove the content of a writing, recording, or photograph, the original writing, recording or photograph is requiredexcept as otherwise provided by the Code or other legislation. (The best evidence rule is contained in this article.)

Practice Tip: When the evidence is a tape recording, the use of a transcript is permissible. See State v. Nightengale,818 So. 2d 819 (La. App. 2 Cir. 2002) (citing State v. Burdgess, 434 So. 2d 162 (La. 1983)). However, when there is areasonable dispute as to the accuracy of such a transcript, a party has the right to have the trier of fact decide theissue from the tape itself.

Art. 1003. Admissibility of Duplicates

Duplicate is admissible same as original unless:

(1) Genuine question as to authenticity of original;

(2) Unfair under the circumstances; or

(3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise

closely related to a controlling issue.

Art. 1003.1. Electronic Duplicates

A duplicate may not be deemed inadmissible solely because it is in electronic form or is a reproduction of electronically

imaged or stored records, documents, data, or other information.

L In 2001 the legislature removed perceived obstacles to the use of computerized data or computer printouts as evidence. La. C.E.art. 1001(5) was amended to include as a "duplicate" a document produced by "electronic imaging." La. C.E. art. 1003, governingthe admissibility of "duplicates," was amended to provide that "(a) duplicate record may not be deemed inadmissible or excludedfrom evidence solely because it is in electronic form or is a reproduction of electronically imaged or stored records, documents, dataor other information." The legislature also amended La. R.S. 13:3733 to allow businesses to use as originals documents preservedthrough electronic imaging.

Art. 1004. Admissibility of Other Evidence of Contents

The original is not required and other evidence of contents of writing is admissible when:

(1) Original lost or destroyed (unless proponent lost or destroyed in bad faith);

(2) Original cannot be obtained by judicial process;

(3) Original under control of party-opponent, party put on notice that contents would be a subject of proof, and

party does not produce;

(4) Collateral matter (not closely related to controlling issue); or

(5) The original, because of its location, permanent fixture, prohibitive cost, or otherwise, cannot as a practical

matter be produced in court.

Art. 1005. Public RecordsContents of official public record authorized to be recorded and actually on file with a government agency may be provedby a self-authenticated copy or testified to be correct by a witness who has compared it with the original.

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Art. 1006. Summaries Otherwise admissible voluminous writings, recordings, or photographs that may not be conveniently examined in court,may be presented in a summary, chart, or calculation. The originals or duplicates shall be made available for examinationor copying, or both, by the other party at a reasonable time and place. Moreover, the court may order that they beproduced in court.

• Although the preparer is not required to be available for cross, as a practical matter he usually will be. Whileit is unnecessary to give notice of the planned use of these materials, the requirement that they be madeavailable for examination or copying "at a reasonable time" suggests that giving notice is required when theoriginals or duplicates are so voluminous that the adversary's inspection of them during the trial would beimpracticable.19

Notes: Art. 1006. Summaries.

Foundation for Admissibility. Article 1006 is an exception to the original writing rule. For the summary, chart, orcalculation to be admissible, the proper foundation must be satisfied.

First, the underlying materials must be so voluminous that they cannot be conveniently examined in court.

Second, it must be demonstrated that the underlying materials which are summarized are otherwiseadmissible in evidence.

Third, advance notice and opportunity to examine/copy the underlying materials must be given to theopposing side.

Fourth, the summary must be authenticated. In other words, before admitting into evidence summaries ofvoluminous writings in lieu of the originals, the proponent must lay a proper foundation by showing that thesummaries accurately reflect the originals. La. C.E. art. 901.20

Other Permissible Uses of Summaries and Charts. Article 1006 does not address the uses of summaries duringtrial but only summaries used as a substitute for the original writings. Summaries, charts, or calculations may beadmissible for purposes other than those envisioned by Article 1006. For example, they may be used as the basisfor expert opinion under Article 703; and the summary may itself be an original document, such as a businessrecord admissible under Article 803(6). Remember, a summary or chart may be an original as defined in Article1001(3) and thus not subject to the requirements of Article 1006, such as when a business prepares a summaryas part of its normal routine. Additionally, a summary or chart may be admissible under Article 1004 as otherevidence of the contents of a writing when the original is lost or destroyed, not obtainable, in the possession ofthe opponent, or is impractical to produce the original. Admissibility under Article 1004 and Article 1006 appearsto be mutually exclusive. If the originals are unavailable to a party, Article 1004 may be used as the basis foradmission and advance notice is not required. Under Article 1006, the original must be made available to theopposing party. In both cases the underlying originals must be otherwise admissible.21

Art. 1007. Testimony or Written Admission of PartyContents of writings, recordings, or photographs may be proved against a party by that party's testimony, deposition, orwritten admission without accounting for original.

• This special provision excuses production of the original when the party against whom evidence of the writing isoffered has admitted the terms in a writing or in a judicial proceeding. (Another special provision permitstestimonial proof of the terms of a writing which is recorded in a public office. La. C.E. art. 1005).

Art. 1008. Functions of courtWhen admissibility depends upon the fulfillment of a condition of fact, the question whether the condition has beenfulfilled is ordinarily for the court to determine in accordance with the provisions of Article 104. However, when an issue israised (1) whether the asserted writing ever existed, or (2) whether another writing, recording, or photograph produced atthe trial is the original, or (3) whether other evidence of contents correctly reflects the contents, the issue is for the trier offact to determine as in the case of other issues of fact.

19 Indeed, this Article was applied to exclude evidence in Delahaye v. Delahaye, 936 So. 2d 822, 835 (La. App. 1 Cir. 2004).

There, the "charts" had not been listed as exhibits in the joint pre-trial order, had not been shown to opposing counsel, and there was noshowing that the proponent of the charts was prejudiced by the exclusion of the charts because he had other avenues to get theinformation in evidence.

20 There is no specific requirement in Article 1006 that the person who prepared the chart testify as to its authenticity. This

changes prior Louisiana law. La. C.E. art. 1006 cmt. (a). Instead, the summary may be authenticated through the testimony of a witnesswho has knowledge of the underlying data. Louisiana courts have not imposed a requirement that the summary be prepared by anindependent person. Higgins v. Rini, 597 So. 2d 1238 (La. App. 3 Cir. 1992).

• In The Carmouche Law Firm v. Pias, 880 So. 2d 49 (La. App. 3 Cir. 2004), the court excluded proffered summaries ofthe financial records of a law firm. Neither the financial records nor the purported summaries were authenticated.Likewise, no foundation was laid to bring the records within an exception to the hearsay rule, such as the businessrecords exception in Art. 803(6).

21 Because summaries, charts, and calculations may be admissible under other provisions of the Code, it is important for

counsel to specify the particular purpose for which they are being used. For instance, a chart or summary may be used as a visual aid toassist the trier of fact to understand evidence. Consequently, Article 1006 summaries must be contrasted with graphs and charts used bycounsel in opening or closing arguments, which are not subject to any evidentiary requirements unless and until offered into evidence. Inthe latter instance, the chart or summary is not being offered as substantive evidence of the underlying facts, rather it is being used as atestimonial aid to facilitate understanding — demonstrative evidence.

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Chapter 11. Miscellaneous Rules

Art. 1101. Applicability

B. Limited applicability. Except as otherwise provided by Article 1101(A)(2) and other legislation, in the followingproceedings, the principles underlying this Code shall serve as guides to the admissibility of evidence. The specificexclusionary rules and other provisions shall be applied only to the extent that they tend to promote thepurposes of the proceeding.

(2) Child custody cases.

(8) Hearings on motions and other summary proceedings involving questions of fact not dispositive of orcentral to the disposition of the case on the merits, or to the dismissal of the case . . . .

C. Rules inapplicable. Except as otherwise provided by Article 1101(A)(2) and other legislation, the provisions of thisCode shall not apply to the following:

(1) The determination of questions of fact preliminary to admissibility of evidence when the issue is to bedetermined by the court under Article 104.

D. Discretionary applicability. Notwithstanding the limitations on the applicability of this Code stated in ParagraphsA, B, and C of this Article, in all judicial proceedings a court may rely upon the provisions of this Code with respectto judicial notice, authentication and identification, and proof of contents of writings, recordings, andphotographs as a basis for admitting evidence or making a finding of fact.

* * *

Notes: La. C.E. art. 1101(B)(2). The purpose to be promoted in a child custody proceeding is the child's best interest.

Folse v. Folse, 738 So. 2d 1040 (La. 1999). This relaxed evidentiary standard applies to disputes between parents, not to an

action to terminate parental rights brought by the State or its agencies. La. C.E. art. 1101.

Trial courts have much discretion in this area. For example:

• In L.E.P.S. v. R.G.P., 11 So. 3d 633 (La. App. 3 Cir. 2009), the appellate court, reviewing a custody judgment, heldthat the trial court erred in excluding testimony of the father's arrest on carnal knowledge of and contributingto the delinquency of a juvenile and for possession of drug paraphernalia. Further, the trial court failed toorder drug tests of the father or to apply adverse presumptions when he claimed the Fifth Amendment privilege31 times during his testimony. This, too, was error, but was harmless due to the overwhelming evidence of thefather's unfitness for custody.

• In a child custody hearing, the trial court properly admitted a parole officer's testimony about a police reportover the mother's hearsay objection that the officer was not present at the accident about which he testified.Gautreau v. Gautreau, 697 So. 2d 1339 (La. App. 3 Cir. 1997).

• Concerning hearsay, it is necessary to balance the best interest of the child against the danger ofunfair prejudice to a party. Walet v. Caulfield, 858 So. 2d 615 (La. App. 1 Cir. 2003) (hearsay evidence ofanother state's medical investigation involving the father, a doctor, should not have been admitted).

• Arrest records were admitted into evidence in Fernandez v. Pizzalato, 902 So. 2d 1112 (La. App. 4 Cir. 2005)(arrest records cannot be used to attack credibility, but can be used for other purposes, e.g., to show the personhas driven under the influence, jeopardizing the safety of himself and others).

• A trial court has broad discretion concerning the admissibility of evidence so that the intended purpose of thecustody proceeding – the best interest of the child – is served. The trial court reasonably found, in State ex rel.J.M. v. Malant, 945 So. 2d 189 (La. App. 2 Cir. 2006), that the father's prior conviction for sexual assault wasrelevant in determining whether custody to the parents would serve the best interest of the child. He waspreviously placed on probation in Texas for the crime.

Additional Notes: La. C.E. art. 1101(B)(2) applies to actions pleaded under the Post Separation Family Violence Relief Act.D.O.H. v. T.L.H., 799 So. 2d 714 (La. App. 3 Cir. 2001). By the same legal analysis, Article 1101(B)(2) should also apply toproceedings filed on behalf of minor children pursuant to the Domestic Abuse Assistance Act. After all, the state has acompelling interest in protecting children from abuse. Globe Newspaper Co. v. Superior Ct. for Norfolk County, 457 U.S. 596,102 S. Ct. 2613 (1982); Folse v. Folse, 738 So.2d 1040 (La. 1999); Buchanan v. Langston, 827 So. 2d 1186 (La. App. 2 Cir. 2002).

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II.

COMMON OBJECTIONS

ArgumentativeIt is improper to engage in name calling, to be insolent, or to use derogatory terms to a witness. Argumentative questions

are those which are designed to degrade or humiliate the witness. It is proper to make a witness look like a liar, but it is not

proper to call a witness a liar.

Examples:• Haven't you been lying since you took the stand?

• Isn't it true your last answer was a crock?

• Do you believe that starving your wife will force her to settle?

What to Look For:

• Questions that would insult you if you were on the witness stand.

• Questions implying dishonesty, corruption, or questionable character are usually argumentative.

• Questions wherein counsel summarizes facts, states conclusion, and demands witness agree with conclusion. (The question is really argument in guise of a question).

• Excessive quibbling with witness (may also be Badgering)

Improper Characterization

Counsel's question or witness's response has characterized a person or conduct with unwarranted suggestive,

argumentative, or impertinent language. (Example: "He looked like a crook.")

Misquoting Witness (or Misstating Evidence)

Counsel's question misstates prior testimony of witness.

Assuming Facts not in Evidence — Compare with La. C.E. art. 703 (Bases of Opinion Testimony by Expert)

Fact not testified to is contained in the question. A question to a lay witness may not assume facts unless they have been

established by prior questions or evidentiary presentations. Look for questions that contain too much information, make

assumptions, or deliver messages before an answer is provided.

Examples:

• When did you stop beating your wife?

• Did the defendant hit his child in the living room or in the cellar?

• Would you be surprised to learn that Mr. Jones had an affair during his marriage?

Vague (or Ambiguous)A question should not be overly broad or confusing. Slang should be avoided. Questions should call for specific answers,

not speeches or stories. A question is confusing — and thus vague or ambiguous — if it is capable of being understood in

more that one sense. In addition, watch out for double-negative questions — Q: “Did you not . . . ?”

Examples: • What's the story on your boyfriend?

• What's with you?

Speculative (Speculation)Question asks a witness who lacks personal knowledge to guess or speculate, i.e., inadequate opinion. Speculativequestions are those which require a witness to present information that the witness does not possess. Often the questionto the witness is one which seeks to ascertain the mind-set of another individual.

For example:

• Why do you suppose your husband physically separated from you?

• What were your son's feelings about the separation?

Questions about feelings can more correctly be stated in terms such as, "What was your husband's stated reason forleaving the family home?"

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Conclusion (opinion not based on first-hand knowledge . . . )

A question that asks a fact witness to give a personal conclusion or opinion is inadmissible unless a proper foundation hasbeen established. A lay witness is supposed to present facts, not conclusions or inadequate opinions. Lay witness may givean opinion as long as the proper foundation is established. See La. C.E. arts. 701, 704.

Examples:• Was Mr. Jones lying with respect to his whereabouts?• Based upon your observations, which school do you believe is better for Timmy to attend?

LeadingA question that is phrased so that the answer is suggested is leading. A leading question tells the witness how to answerthe question. "Isn't it true that . . . .” Leading questions are actually statements with which the questioner wants thewitness to agree.

Original writing (formerly, Best Evidence)If rule applies, original document must be offered or its absence accounted for. If contents of document are to be proved,rule usually applies. Note: There has never been a general best-evidence rule.

Document Speaks for ItselfThe witness should not use oral testimony to establish or prove the contents of a written document where the document iscapable of being presented. In other words, show me the writing, don't tell me about it. The rule applies only to testimonyabout a writing. It does not apply to demonstrative or real evidence. This objection is also used when a witness is repeatinga reading that is already in the document as opposed to explaining, expanding, or otherwise clarifying what is in thedocument. Whenever a document is being used, you should have a witness explain it or in some other way clarify orexpand the scope of the document. Examples:

• What is the date on Mrs. Jones' birth certificate?

• What was written in the psychiatrist's report?

• What did the label on the bottle say?

What to Look For:• Reference to anything written or printed. This rule applies to all forms of writings. It does not bar or prohibit

personal observations simply because the document may contain the same information. Unless absence ordestruction of document is established, testimony concerning the contents of the document should not beallowed. The document should be produced and introduced into evidence. If the original is not available, acopy (duplicate) can generally be used as a substitute.

Parole (Testimonial) EvidenceA witness may not be competent to testify as to a particular fact because the law does not permit verbal testimony as tothat fact under the particular circumstances. The most important rule barring use of testimonial proof is the parol evidencerule: generally, parol (testimonial) evidence is not admissible to contradict, vary, or modify a written instrument. La. Civ.Code art. 1848. After all, contracts are the law between the parties and are presumed to reflect the entire agreement ofthe parties. The parol evidence rule, however, is subject to many exceptions, including:

(1) Parol evidence is admissible to establish a subsequent agreement modifying the written agreement, even where the written

agreement was required by law to be in writing. See, e.g., Frank v. Motwani, 513 So. 2d 1170 (La. 1987); Arceneaux v. Adams,366 So. 2d 1025 (La. App. 1 Cir. 1978).

(2) Parol evidence is admissible for or against a third party who was not in privity with the contracting parties. See, e.g., Mitchell v.Clark, 431 So. 2d 817 (La. App. 2 Cir. 1983).

(3) Parol evidence is admissible to show error, mistake of fact, fraud, duress, illegality, or want of consideration. La. Civ. Code art.1848; Baker v. Baker, 21 So. 2d 514 (La. App. 1 Cir. 1945), rev'd on other grounds, 209 La. 1041, 26 So. 2d 132 (1946).

(4) Parol evidence is admissible to clarify an ambiguity in the written instrument. See, e.g., Amoco Production Co. v. Fina Oil &Chemical Co., 670 So. 2d 502 (La. App. 1 Cir. 1996).

(5) Parole evidence is also admissible to show that written agreement was incomplete.

p p p The parol evidence rule applies only in an action to enforce the obligation created by the p p pwriting, and not in other actions in which the writing is collateral to the main issue.

HearsayWhat to Look For: Questions that ask the witness to talk about something that he did not personally observe.

Hearsay (question). The answer would elicit hearsay, and no exception has been shown.Hearsay (answer). Question did not call for hearsay, but witness gave it anyway.

Practice Tip: A threat is not a statement of fact. It is a promise to do future injury. The contents of a threateningtelephone call would not constitute inadmissible hearsay. United States v. Herrara, 600 F.2d 502 (5 Cir. 1979).Nor would tape recorded telephone conversations that were only offered to show a pattern of verbal behavioron the telephone. United States v. Abscal, 564 F.2d 821 (9th Cir. 1977); see also United States v. Rubin, 591 .F.2d278 (5 Cir. 1979).

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Irrelevant Would not tend to make the existence or nonexistence of any fact that is of consequence more or less probable.

The party who calls the witness will conduct the direct examination, which is limited to establishing the competency of thewitness and eliciting from the witness evidence of relevant facts. The relevancy of the facts is determined by the allegationsof the petition and the pretrial order.

Beyond the Scope. Generally this is not a valid objection in Louisiana courts (unless objection is beyond the scope ofthe pleadings), inasmuch as Article 611(B) allows a witness to be crossexamined on any matter relevant to any issue inthe case, including credibility. However, redirect exam is generally limited to matters within scope of cross-exam, andwhen a person identified with a party is called as a witness by an adverse party, cross-examination is limited to scopeof direct.

Even if relevant, evidence excluded via 401/403 analysis

CompoundYou need to ask one question at a time. Questions that call for more than one answer are multiple or compound questions.For example, did you pay last month’s child support, and, if so, when did you pay it and was it by check or cash?

What to Look For: Questions that contain the conjunction "and" or request information about more than a single transaction.

Privileged Answer would violate valid testimonial privilege (lawyer-client, spousal, clergy, etc.)

Repetitive (asked and answered)Sometimes when attorneys don't get the answer they want from a particular witness they repeat a similar question hopingto get the answer they want, which may be inconsistent with an answer already given. This can lead to eitherargumentative questions or repetitive questions.

A lawyer should be allowed to ask a question only once. You need to look for questions that are too similar to priorquestions. On cross examination you can repeat a question if the witness’s answer is evasive, but to engage in continuousrepetition is time consuming and irritating to the court. Greater leeway is given on cross-exam, but be especially ready tomake this objection during re-direct examination.

CumulativeCumulative questions are similar to repetitive questions in that they seek to introduce evidence on an issue that has beenpreviously addressed. However, cumulative questions are more likely to be separated in time.

NarrativeA narrative is testimony from a witness in which he is permitted to testify without the customary intervening questionsand answers and the witness explains events in detail without interruption. Question is so broad or covers such a largetime period it would allow witness to ramble and possibly present hearsay or other inadmissible evidence. Judge has broaddiscretion in this matter.

Examples:• Tell the court everything that you remember about the incident.

• Tell us everything that happened that day.

• Give us the events in your own words.

In response, the witness would give a monologue speech and will have the opportunity to testify as to facts which wouldotherwise not be permitted into evidence. Frank Maraist has a different view, as stated in his Treatise on Evidence andProof:

A party may avoid the "leading question" problem by posing to his witness a narrative question, such as "tell us whatyou observed." Narrative questions are permissible, within the discretion of the court, and often are looked upon withfavor, since they permit a smoother and quicker presentation of the witness’s testimony. The danger, of course, is thatthe opponent may not have an opportunity to object to highly prejudicial answers to narrative questions. Generally,however, a judge should permit a narrative question unless and until there is a showing that permitting a narrativeresponse will likely elicit inadmissible and highly prejudicial testimony.

Nonresponsive (or Unresponsive)Answer includes testimony not called for by the question. Especially applicable to voluntary response by hostile witness.An objection based solely on this ground is generally deemed appropriate only if made by the examining attorney.

Self-ServingA plaintiff's uncorroborated, self-serving testimony is not sufficient to support an award of damages for past lost earnings ifit is shown that corroborative evidence was available and was not produced. Mathews v. Dousay, 689 So. 2d 503 (La. App.3 Cir. 1997); see also Mormon v. Stine, Inc., 664 So. 2d 600, 603 (La. App. 3 Cir. 11/2/95).

Bolstering. Improper to bolster the credibility of a witness before credibility is attacked.

Counsel Testifying. Opposing counsel is making a statement instead of asking a question.

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Appendix ASelected Provisions of Louisiana Code of Civil Procedure

La. Code Civ. Proc. Arts.

191. Inherent judicial power

192. Appointment of expert witnesses; expenses

371. Attorney

373. Expert appointed by court

855. Pleading special matters; capacity

856. Same; fraud, mistake, or condition of the mind

857. Same; suspensive conditions

858. Same; official document or act

859. Same; judgment or decision

860. Same; time and place

861. Same; special damage

862. Relief granted under pleadings; sufficiency of prayer

863. Signing of pleadings, effect

925. Declinatory Exception

926. Dilatory Exceptions

927. Peremptory Exceptions (Res Judicata - La. R.S. 13:3241-3242)

930. Evidence on trial of declinatory and dilatory exceptions

931. Evidence on trial of peremptory exception

965. Motion for judgment on pleadings

966. Motion for summary judgment; procedure

967. Same; affidavits

1292. Sheriff's return of citation and service "shall be considered prima facie correct"

1312. Service of pleadings subsequent to petition; exceptions

1351. Subpoenas; Issuance; Form

1353. Prepayment of fees

1354. Subpoena duces tecum

1392. Proof of statutes

1421. Discovery methods

1422. Scope of discovery; in general

1425. Experts; pre-trial disclosures; scope of discovery

1429. Perpetuation of testimony; petition

1430. Notice and service of petition; perpetuation of testimony

1430.1 Ex parte order; death or incapacitating illness

1431. Order and examination; perpetuation of testimony

1432. Use of deposition

1433. Deposition after trial

1443. Examination and cross-examination; record of examination; oath; objections

1446. Certification by officer; custody of deposition; exhibits; copies; notice of availability for inspection or copying; cost of originals and copies of transcripts

1450. Use of depositions

1451. Objections of admissibility

1452. Effect of taking or using depositions; deposing attorneys of record

1455. Objections, competency of witnesses; relevancy of testimony; manner or form of taking deposition

1459. Interrogatories to parties; scope; use at trial

1464. Order for physical or mental examination of persons

1465. Report of examining physician

1465.1 Requests for release of medical records

1466. Requests for admissions; service of request

1467. Requests for admission; answers and objections

1468. Requests for admissions; effect of admission

1469.1 Order compelling discovery of medical records

1469.2 Order compelling discovery of financial records; notice

1475. Affidavit for medical cost; counter affidavit; service

1551. Pretrial and scheduling conference; order

1605. Trial of motion; order22

1631. Power of court over proceedings; exclusion of witnesses; mistrial

1632. Order of trial

1633. Oath or affirmation of witnesses; refusal to testify

1634. Cross-examination of a party or person identified with a party

1635. Exceptions unnecessary

1636. Evidence held inadmissible; record or statement as to nature thereof

1701. Judgment by default

1702. Confirmation of default judgment

1702.1 Confirmation of default judgment without hearing in open court; required information; certifications

1703. Scope of judgment

1971. Granting of new trial

1972. Peremptory grounds

1973. Discretionary grounds

1975. Application for new trial; verifying affidavit

1978. Procedure in new trial

22 “Every contested motion for a continuance shall be tried summarily and contradictorily with the opposite party.”

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Appendix BSelected Statutes on Louisiana Evidence Law

LA Revised Statutes

3:3225 State chemist

9:396 Authority for test; ex parte orders; use of results

9:397 Selection of expert

9:397.2 Chain of custody of blood or tissue samples

9:397.3 Admissibility and effect of test results

9:398 Applicability to criminal actions

9:2757 Recorder's certified copies of authentic acts and official bonds

9:2758 Notarial certified copy of lost original

9:2759 Lost original, certified copy from public record

13:3665 Competency of witnesses

13:3712 Copies as prima facie proof; judicial notice of municipal and parochial ordinances

13:3712.1 Labor reports in child and spousal support proceeding (exception to hearsay — prima facie evidence . . .)

13:3713 Federal enactments, regulations, decisions, prima facie evidence

13:3713.1 "E911" tape recordings or records; court order; certified copies; attestation (exception to hearsay)

13:3714 Charts or records of hospitals; admissibility of certified copy

13:3715.1 Medical or hospital records of a patient; subpoena duces tecum and court order to a health care provider; reimbursement for records produced

13:3717 Uniform proof of statutes law; printed books and pamphlets as prima facie evidence

13:3718 Same; construction and citation

13:3719 Instruments acknowledged before U.S. diplomatic and consular officials admissible in evidence

13:3720 Instruments attested by witnesses and accompanied by affidavit; admissible in evidence

13:3723 Files or records of courts of parish; production; copy unnecessary

13:3725 Attestation or certificate of consul, etc., as evidence of authority of officer of foreign country

13:3727 Written acts recorded nineteen years admissible

13:3728 Ancient document; admissible in civil suits

13:3729 Same; definition

13:3730 Same; acknowledgment or proof of authenticity not required

13:3731 Same; admissibility of copies

13:3732 Statements by injured person regarding accident or injury; copies furnished injured person or personalrepresentatives

13:3733 Business records; reproduction by photographic, photostatic, or miniature photographic process; certification

13:3734 Privileged communication between health care provider and patient

13:3740 Proof of contents of lost instrument

13:3741 Advertisement to recover lost instrument; exceptions; bond

37:87 Divulging information

37:1114 Privileged communications

37:2363 Privileged communications

37:2714 Privileged communications

40:42 Evidentiary character of certificates

45:1451 Definitions

45:1452 Conditional privilege from compulsory disclosure of informant or source

45:1453 Revocation of privilege; procedure

45:1454 Defamation; burden of proof

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