IAAL / LB - more email questions

i needed to pick your brains some more. i hope that you don't mind.

have been doing some research on the net with the legality of email evidence. from what i am reading, the lawyer should have object to the evidence ever being submitted into the trial. on several grounds - hearsay and authenticity.

anyways, here is the situation as it lies now.

we are going to go for a reconsideration of the ruling. in the hopes of submitting the new email evidence. that way, if we are not successful - then the new informatin could be used in the appeals case (if we need it).

now the questions...

can we object to the emails that are already in - on the grounds of hearsay and authenticity. from what we have discovered, the printed email should have contained headers that detailed where the email was sent from and where it went to. the ones they presented did not have this listed. there is no way to prove where they came from. there are 7 sections in the headers and out of that 5 can be tampered with or forged, 6 if you are talented.

can the expert testify that the format used on the emails - supposedly from the same computer and outlook program - that it is not consistent and that it could not have been printed from the same program. (showing again that they have lied)

and there are a tons of little things that i can show where he lied on the stand. my lawyer sais they were small matters and insignificant, but they show he was lying. right now, the way i see it, little things are about all i have. but if i can show enough little things to show he is lying - then it could hopefully taint the rest of his testimony.

what do you think? besides the obvious - deal with it. which right now, i don't want to do. i want to fight it. it might not be wise on my part, but i can' give up just yet.

My response:

Once evidentiary items have been accepted into evidence, either without objection, or "over" objection, the evidence is now a part of the record. So, you can't "object" late.

However, based upon newly discovered facts and further evidence concerning the previously accepted evidence, you can make your Motion for Reconsideration of the ruling.

There are three stringent requirements:

· newly-discovered evidence;

· material to the outcome of the case; and

· reasonable diligence to discover and produce the evidence at trial (sometimes referred to as "strict diligence"). Lack of sufficient diligence is the most common reason for denying the motion. [Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161-1162, 79 Cal.Rptr.2d 641, 646-647]

"Newly-discovered" evidence: The evidence must be newly-discovered--i.e., evidence that was not known and could not reasonably have been known at the time of trial; for example, evidence that was willfully suppressed by a party and that came to light only after trial. [Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at 1161-1162, 79 Cal.Rptr.2d at 646-647]

Material to outcome of case: The evidence must be material--i.e., it must be of a type likely to bring about a different result. [Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at 1161, 79 Cal.Rptr.2d at 646-647]

Cumulative evidence typically qualifies only if the cumulative effect is so strong as to render a different result probable. [See Waer v. Waer (1922) 189 Cal. 178, 181, 207 P 891, 892; and Baron v. Sanger Motor Sales (1967) 249 Cal.App.2d 846, 858, 57 Cal.Rptr. 896, 904]

Reasonable diligence exercised: The moving party must show he or she exercised reasonable diligence to discover and produce the evidence at trial (sometimes referred to as "strict diligence"). Lack of diligence is the most common reason for denying the motion. [Marriage of Liu (1987) 197 Cal.App.3d 143, 153, 242 Cal.Rptr. 649, 655]

General averment insufficient: A general averment of diligence is insufficient. The moving party must state the particular acts or circumstances that establish diligence. [Marriage of Liu, supra, 197 Cal.App.3d at 153, 242 Cal.Rptr. at 655]

Even with newly discovered evidence, getting a judge to re-visit previous evidence is an uphill battle that, for the most part, results in a denial of a Motion for Reconsideration and ends up on appeal.

Good luck Ambr.

IAAL

just found out today that the motion to enter new evidence - the email information was presented at the same time to the judge as our suggested ruling. so he did see the paperwork. in additional the cover letter attached to the ruling, mentions the motion and contains the details before it discusses the suggested ruling.

so the judge did know that the evidence was there. he just didn't allow us the chance to submit it.

the new emails - which had header information confirming the authenticity of them - showed that he had been updated on everything. including their schooling, extra ciricular activties, discussed phone calls and the ringer - showed that he was aware of the day we arrived in the new state. he had testified that for 35 days he did not know where we were. he had been contacted the day we arrived.

all of that was suppose to be the major turning points according to the ruling that was issued.

the evidence we have since then - shows that he has continually lied on the stand from little unnecessary matters to major matters concerning his working schedule and time spent with the kids.

he had mentioned people that had informed him of information on the kids. we have tracked those people down and have affadavits stating that he lied, then never told him anything of that nature. (he never produced these people or affadavits - just his word that he was told. we objected, but they let it in.)

thank you for all the info on the evidence. when we did the discovery, there were no mention of the people who were suppose to be giving him his information. no mention of emails or anything. so we didn't know to have them there. the minute we got the ruling with the information on it, we started tracking people down. so i guess that would qualify for the evidence.

i kind of already know this is headed to appeals. i guess the motion for re-consideration is our way of trying to get the new stuff into the case so the appeals court will be able to see it.

Ambr, Did you lose custody because of this?

yes.

the reasons detailed in the ordered stated that i never kept ex updated on information on the kids (the order read continuous history. we have been to court 6 times on custody in the past, i have won every time. is it fair to say continuous, when we have always shown that he has been updated, etc in the past). my emails showed differently.

the judge told the lawyers in closed chambers that the email was in front of him (the bogus stuff) and that he believed i was lying about the emails. therefore, hiding the children from their father. (that is what his emails were suggesting).

the other reason the kids' lawyer stated was harmful was that i didn't not send a second notification when our plans changed through the courts. but my email that i had (the new evidence that didn't get put in) showed that he was aware of the early move and had contact # to get ahold of us.

to be honest, i really think from what we have been told that the emails were the damaging evidence. they convinced the judge i was lying on them and tainted my entire testimony. they were never authenticated and the judge admitted that he didn't know a thing about computers or programs. he was functional sending and receiving email and that was it. my emails totally blew his out of the water and demonstrated that he knew where we were, that we had left early and contact information. plus i have the header information to back them up and authenticate them.

[Edited by Ambr on 06-14-2001 at 12:33 PM]