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.
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
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
What are some examples of how to not appear judgmental as a lay witness in court?
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).
Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
Listen to the questions posed to you, so that you know what information is being elicited from you.
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.”
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
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:
What are some examples of how to not appear judgmental (or worse) as a lay witness in court?
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).
Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
Listen to the questions posed to you, so that you know what information is being elicited from you.
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.”
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.
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