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Category: Testimony

Doing What’s Best for Children by Refusing to Hear From Them on the Subject (And Other Nonsense).

Recently an attorney posed a question on a forum for fellow Utah family law attorneys. The question involved how to find out what the children’s experiences have been with one of their parents (this parent was dealing with some personal demons) and what kind of contact they should have with that parent.

I responded on the forum that if this isn’t a scenario in which both the commissioner and the judge should be interviewing the children themselves, so that those who hold the fates of these children in their hands have the best possible idea what is going through these children’s minds at this time, what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, then there is never an appropriate time for the court to interview children.

Who could gainsay that?

Many tried (and failed).

One attorney who responded to my suggestion commented that this would be the worst time for a judge or commissioner to interview the children but did not explain why. This attorney claimed that a private guardian ad litem (PGAL) should be appointed for, and to interview the children, instead. I asked for an explanation, and further commented by asking what ostensibly makes judges and commissioners so innately bad at interviewing children, and what makes PGALs innately so good at it? I don’t know where the myth of the angelic, “child whisperer” PGAL and the demonic, “couldn’t interview a child effectively if his/her life depended on it” judge dichotomy came from, but it’s nonsense.

Another attorney (like many who comment on this subject) commented that children should never be interviewed or even “exposed to the legal system unless absolutely necessary” without identifying a scenario in which it would be “absolutely necessary”. This attorney claimed that because minor children’s brains are developing that being interviewed by a judge or commissioner  “is incredibly damaging to the child.” In response to that comment I asked, “Where’s the evidence?”

The response I got was similar to what everyone says to me in response to that same question:

  • “every single child development book ever created, academic case studies, nonprofits that specialize in it, etc.” advises against judges or lawyers interviewing children.

o   This is false (which should come as no surprise when any speaks in those kinds of absolute terms), but it’s widely believed (or asserted as believed) in the family law profession.

  • “Commissioners and judges are not specifically educated in this area of law as those who practice it day are.”

o   But that argument erroneously presumes

  • that unless a judge, commissioner, or lawyer is “specifically educated” in how to talk to children about what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, that judge, commissioner, or lawyer will inexorably make a mess of interviewing the child; and
  • that those who are (or are “certified” as) “specifically educated” in how to talk to children are incapable of being incompetent child interviewers.
  • When I responded with, “Well, if it’s so obvious and the research so voluminous and overwhelming, please cite it,” I got this in response: “You can do the research yourself.”

The legal system needs to stop believing that which is untested in the name of “protecting children.” It was widely accepted as fact in America that tomatoes were poisonous to humans. It was not until Robert Gibbon Johnson (no relation to me) ate a tomato on the courthouse steps of Salem, New Jersey in 1820 that he proved otherwise. Dispelling that myth has been a culinary and economical boon to the entire world.

I recently deposed a 14-year-old child in a parent time dispute case. She was not only willing to testify but was grateful for the opportunity to have her voice heard and her viewpoint considered. She was a particularly compelling and credible witness. The evidence she provided could not have come from any other source. After her deposition the case was resolved in a week.

The notion that any child testifying in any child custody or parent-time dispute case does terrible damage to any and every child is simply not true. I know this because I have deposed children to the benefit of child and truth seeking alike.

Blanket prohibitions on child testimony (on the grounds that they are nothing but harmful to all children) are not only false, they are also contrary to fundamental concepts of fact finding and subserving the best interest of the child.

I know that eliciting child testimony is not harmful to all children because I have real world data to the contrary. And not just someone else’s claims, but my own experience.

It has, unfortunately, become an article of faith in Utah family law practice that child testimony does more harm than good. That has not been my experience. I am one of the few attorneys in Utah who has that experience. It is therefore hard for me to give unverified claims the same weight as my own experience. I would be lying if I asserted that child testimony inexorably and/or irreparably harms most (let alone all) children. Blanket prohibitions on child testimony are antithetical to fundamental principles of our legal system, i.e., diligent investigation, careful, impartial analysis, real respect for children’s rights and best interests, and honest judgment.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Blanket prohibitions on child testimony in custody and parent-time disputes are irrational and irresponsible

Thomas Sowell said (in a discussion of politics and governance), “There are no solutions. There are only tradeoffs, and whatever you do to deal with one of man’s flaws it creates another problem, but you try to get the best solution you can get.”

So often in human experience the response to a problem comes down to compromise. We must be careful not to overstate the principle, of course. We need to be moral. We need to be honest and fair. Compromise comes up not in compromising our values for the sake of expediency, but when reasonable minds can differ. When people are too rigid in their positions, quite often everyone loses. Nothing gets done. One of the things that annoys me about the lack of understanding this principle in family law is when attorneys, courts, or advocates with certain agendas take rigid positions that depends upon ignoring the reasonable arguments of the other side for their rigid positions to have supposed unassailable merit.

Take my efforts to allow child testimony in child custody and parent time dispute cases.

There are those who believe that involving the children in the litigation process by asking them questions and seeking their input through testimony about what they’ve experienced, how they feel about it, and what they may desire by way of custody and parent time schedules can do nothing but harm the children. Those against child testimony in any form offer several arguments:

  • Testifying causes children to feel as though their loyalties are hopelessly split between the two parents they love. Children may feel as though they must break the heart of one parent in pleasing the other parent.
  • It causes children to fear reprisals and retaliation by parents who may be angered or upset by children’s testimony.
  • It exposes children to matters they are unprepared and unqualified to deal with, to issues better left to adults to resolve.
  • Children are generally incompetent and/or incredible witnesses.

There are some fair points there. But when people focus on these points to the exclusion of all other fair and reasonable points to the contrary, they don’t do their cause any favors. Ignoring rational counterarguments or rejecting them out of hand rouses skepticism as to just how strong and how broadly applicable the argument really is. An argument that denies any defects is usually proof that defects exist. Acknowledging the flaws and weaknesses in one’s position helps to reveal the extent of its strengths and applicability.

Granted:

  • Some (not all) children cannot testify without it doing them serious psychological and or emotional damage.
  • Compelling some (not all) children to testify might expose them to heinous reprisals from a wicked parent (although muzzling a child to “protect” him/her from a retaliatory parent only rewards—and thus encourages—bad behavior on the part of parents). Otherwise stated, sometimes the harm the child might suffer for his/her testimony outweigh the benefits of the child’s testimony to the court.
  • Not all children are competent and/or credible witnesses due to their age leaving them too young to understand the difference between right and wrong, truth and falsity. They could be mentally disabled or mentally ill to the point that they cannot perceive reality accurately. Or they could simply be too immature to know what’s good for them.

But we must also acknowledge that:

  • some children have no cause to fear retaliation from either parent, and so they don’t fear either parent.

–  some children are not only willing to share their experiences, observations, feelings, opinions, and desires—if called upon to do so, but want to do so. They wish to have a voice in the child custody and parent time analysis and decisions. Children who are sufficiently intelligent and mature to make intelligent and mature contributions to the evidence should be heard. The court needs to consider that evidence in making the child custody and parent-time awards.

  • competent, credible child witnesses are often the best, sometimes the only, witnesses to certain facts that bear crucially upon the child custody and parent-time award decisions.
  • children are, after all, the greatest stakeholders in such decisions. They have the most to gain or lose by the quality of the decision.

Thus, to ignore (or even refuse) such evidence from a willing, competent, credible child witness is, in my opinion, malfeasance on the part of a judge deciding child custody and parent-time matters.

It is easy to “prevent” what harm child testimony may cause some children by prohibiting all child testimony, but at what cost? Such extreme measures deprive some children (and the courts deciding their custody and parent-time fates) of the benefits their testimony could yield. Blanket prohibitions on child testimony in all cases are no better than mandating children testify in all cases. The matter of whether a child testifies ought to be decided on a case by case basis, and competent, credible child witnesses should testify if called to testify, unless there is clear and convincing evidence that the testimony’s probative value is substantially outweighed by a clearly and particularly articulable danger (not a mere, generalized claim of risk—every venture necessarily includes some risk) of irreparable harm to the child, were the child to testify.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Pgals (Private Guardians Ad Litem) Are a Bad Idea.

Why?

You’ll hear the argument that a PGAL should be appointed for a child because we don’t want to traumatize children by having them testify on the record. Where is the evidence that a child testifying for the record so traumatizing to the child as to be unthinkable, causes irreparable damage, or that the value of the testimony is outweighed by the adverse effects on the child?

You’ll hear the argument that a judge is not qualified to question children. Oddly, you’ll hear that argument from the judge. And the argument is patent nonsense. Judges are authorized by the Utah Code to interview children. The Utah Code permits children to testify if and when they testify voluntarily. Does that come as any surprise?

You’ll hear the argument that what a child may say when questioned may go beyond scope of what is relevant. OK, that’s certainly possible, but it’s hardly unusual for a witness, adult or child, to testify beyond the scope of the examination. That’s been happening (and will continue to happen) with witnesses for centuries. When that happens with a child witness, objections are raised, the witness is instructed to stay within the scope of examination, we get back on track, and we move on. To suggest that children must not be questioned because they may ramble or talk about irrelevant things is silly.

You’ll hear the argument that the best way to ensure that a child’s voice is heard is by having someone else speak for the child (in the form of a PGAL). That argument is invalid on its face.

You’ll hear the argument that a PGAL has access to evidence and facts that the parties and/or court don’t. But that’s simply not true.

You’ll hear the argument that a PGAL can make arguments on behalf of a child in court. OK, sure, but why would that be a reason to prevent the child client from testifying for himself too? So that his/her testimony is known for the record unfiltered, complete, and unadulterated?  We don’t bar other people who are represented by attorneys from testifying.

You’ll hear the argument that a PGAL is a “trusted adult,” someone a child can talk to. But a judge isn’t a trusted adult a child can talk to?

You’ll hear the argument that a judge won’t hear from therapists or other collateral contacts while a PGAL will, but that’s simply not true. The bottom line is that PGALs are being appointed to prevent a child’s testimony from being obtained for the record, from being known for the record, to prevent that child’s testimony from being evidence on the record in the case, and thus to prevent that evidence from influencing the decision of the court. That’s indefensible.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How Could I Use Transcripts of a Victim Impact Statement to Show the Other Party Has Told Lies in Court and Cannot Be Trusted to Be Honest?

If the statement:

  • is a sworn affidavit or in a form accepted by the court as equivalent to a sworn affidavit; and
  • the content of the affidavit/statement is relevant to the issues before the court in your particular proceeding (“relevant” means the evidence “tends to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence”),

then you likely can submit the statement to the court and have the court admit it as evidence, with the content of the affidavit/statement treated like any other admissible testimony.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-could-I-use-transcripts-of-a-victim-impact-statement-to-show-the-other-party-has-told-lies-in-court-and-cannot-be-trusted-to-be-honest/answer/Eric-Johnson-311

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Do letters vouching for one’s character really matter?

My lawyer asked me to get letters of my character from my friends for family court to introduce as evidence, but do they really matter and is 12 enough?

Do letters vouching for one’s character really matter? 

If so, are 12 character reference letters enough? 

I will answer these questions: 

  • in the context of a divorce and child custody case (because my guess is that is the kind of case for which your lawyer told you to get character reference letters); and 
  • based upon the laws of the State of Utah, where I practice divorce and family law. 

Do letters vouching for one’s character really matter? Another way one might ask this question is: “Do character reference letters have a major helpful impact on my case?” It’s impossible to say whether this is true in all cases. Some judges may give greater credence and weight to character references than do other judges. I think the key question is instead: “Is there any good reason not to submit positive character reference letters to the court in support of my case?” My answers to that question are: 

  • I don’t see such letters posing a serious risk of harm to your case. If so, 
  • Are 12 character reference letters enough? Probably more than enough, depending upon their respective length and content. 12 five-page, single-spaced, rambling letters without any paragraphing and bad punctuation and spelling are either not going to be read or remembered or, if they are remembered, will not be remembered favorably. Form letters that are all the same but for the signature at the bottom are a bad idea. Letters that attempt to build you up by tearing your spouse down aren’t terribly persuasive. 
  • 4 or 5 letters of one page or less, from credible (i.e., not just from from Mom and Dad, your minister and your best friend, but from neighbors and teachers, and others who don’t have a stake in the outcome of the case, for example) plain-spoken people who know you well and who make a cogent argument for your good character are probably about right in number and length. The only exception I can think of is if your spouse submits 10,000 character letters, then you may need to respond in kind, if the court determines character by volume. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/My-lawyer-asked-me-to-get-letters-of-my-character-from-my-friends-for-family-court-to-introduce-as-evidence-but-do-they-really-matter-and-is-12-enough/answer/Eric-Johnson-311  

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What are some ways to not appear judgmental as a lay witness?

What are some examples of how to not appear judgmental as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime). 
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed. 
  3. Listen to the questions posed to you, so that you know what information is being elicited from you. 
  4. Simply answer questions, and answer questions simply. 
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.” 
    • Do not, do not, do not try to answer yes/no questions with rambling stories. 
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.” 
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-are-some-examples-of-how-to-not-appear-judgmental-as-a-lay-witness-in-court/answer/Eric-Johnson-311  

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What is the percentage of people who commit/are prosecuted for perjury?

What percentage of people lie while under oath in a courtroom, and how often does someone get prosecuted for perjury? 

Re: What percentage of people lie under oath in a courtroom: 

  • If anyone knows this, I don’t know who he/she/they is/are.  
  • If such statistics could accurately be obtained, I don’t know how they could be.  
  • As with so many things, what constitutes “a lie” is not as cut and dried as it may seem, even to intellectual people. 
  • If accurate statistics do exist, I’m sure most in the legal system don’t want anyone to know about them because I’d bet that if such statistics exist they are not flattering to the legal system.
    • I’m not sure how much we can blame the courts for “failing” to catch lies, however, given that no one is infallible and nobody is capable of detecting lies more than roughly 50% of the time* 

Re: How often someone who committed perjury is prosecuted for perjury: 

  • very rarely 

*Sender Demeanor: Individual Differences in Sender Believability Have a Powerful Impact on Deception Detection Judgments 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-percentage-of-people-lie-while-under-oath-in-a-courtroom-and-how-often-does-someone-get-prosecuted-for-perjury/answer/Eric-Johnson-311  

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Examples of how to not appear judgmental as a lay witness.

What are some examples of how to not appear judgmental (or worse) as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime).
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
  3. Listen to the questions posed to you, so that you know what information is being elicited from you.
  4. Simply answer questions, and answer questions simply.
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.”
    • Do not, do not, do not try to answer yes/no questions with rambling stories.
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.”
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-some-examples-of-how-to-not-appear-judgmental-as-a-lay-witness-in-court/answer/Eric-Johnson-311?prompt_topic_bio=1

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Does saying after an answer “I truly believe that”, “it truly is”, damage your credibility as a lay witness in court or is it better to don’t add this type of qualifiers?

First, whether you “truly believe” something or “find it hard to believe,” testifying to something you believe or don’t believe, as opposed to testifying as to something you know, is the first and biggest problem. 

Testifying about something you believe (but do not know) is inadmissible testimony. Testifying based upon belief (as opposed to personal knowledge)—whether you testify that you “believe” or “don’t believe” a thing to be true, is known in legal parlance as “speculative” and speculative testimony is objectionable and inadmissible. Speculation is no different than guessing, and it would be frightening unfair to decide a case based upon beliefs, instead of based upon facts. 

Second, and somewhat ironically, trying to qualify or bolster your statement to make it more believable may have the opposite effect. Adding qualifiers to your testimony may raise the question as to why you would add them. For example, if you were to answer a question with “To be honest, I do(n’t) know,” use of the phrase “to be honest” is unnecessary. So, one could (could, not must, but could) infer that someone who starts a statement with “to be honest” may often answer questions dishonestly as a general matter, which is why the person distinguishes between when he/she speaks honestly and when he/she does not. So why introduce the doubt as to your credibility at all when there is no need to do so? Better to say merely “I don’t know” and “yes” and “no” than to say, “To be honest, I do(n’t) know” or “To tell the truth, I do(n’t) know”. 

Many people have the linguistic tic or affectation of responding to questions with the phrase “I believe” when in fact such people are not guessing or speculating but know. Imagine a situation where when the witness left the office on a particular day is a crucial fact to be established. Imagine that the witness knows precisely when he/she left the office that day, i.e., 5:15 p.m. When such a person is testifying and says, in response to the question as to what time he/she left the office at the end of the day, “I believe I left the office at 5:15 p.m.,” then the witness is needlessly confusing the judge and/or jury. Saying, “I believe” before making a statement of fact changes that statement of fact into a statement of speculation, a guess. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Does-saying-after-an-answer-I-truly-believe-that-it-truly-is-damage-your-credibility-as-a-lay-witness-in-court-or-is-it-better-to-dont-add-this-type-of-qualifiers/answer/Eric-Johnson-311  

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