Evidence | The Better Chancery Practice Blog

SHOW ME THE MONEY!

March 10, 2011 § 2 Comments

As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late. Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.

Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided. You already have it in part with the joint property list that is included in the pre-trial order. Why not just rearrange all those assets into the manner that your client wants them divided. Once she identifies it, offer it into evidence, and the judge has the graphic depiction of how your client wants the case to go rather than just a gob of words. Instead of devoting your time (and the judge’s wayward attention) to a painstaking item-by-item approach, you can zero in on how your client justifies a greater share of the marital estate, and concentrate on the several important items she just has to have. With the preparation of a simple document you will have sharpened the focus of your case and made it more efficiently compact at the same time.

Or, if your client wants the financial assets divided a certain way, you can show the division he wants AND add a column with reduced values for tax penalties, etc., assuming you have that proof in the record.

Or, if your client has a claim for reimbursement of medical bills, why not create a table or spreadsheet itemizing all the charges, showing dates, providers, amounts charged, amount paid by insurance, and balance, with totals.

Or, if your client wants specific visitation, why not spell it all out in a proposed schedule.

Here’s how you get them in:

You: Let me show you a document and ask you what it is.

Witness: It’s a table showing [my proposal to divide the marital estate/the financial assets and how I want them divided/a summary of the medical bills/my visitation proposal].

You: Does this table accurately reflect the [marital assets/financial assets] that are already in evidence? Or: Is this the schedule you wish the judge to adopt?

Witness: Yes.

You: Now, let me ask you a few questions about this …

When you put all those words into an exhibit, you are saving the judge all the work of trying to make notes of them at trial, and you are making sure that everything you want to say won’t be missed by the judge. The judge will have a document to look at rather than having to ferret that information out of his sheaf of notes.

In other words, the easier you make it on the judge, the more probable it is that your client will be very happy with the outcome of the case and the job you did.

GETTING THAT SUMMARY INTO EVIDENCE

March 9, 2011 § Leave a comment

I’ve talked here before about the beauty of MRE 1006, which allows you to summarize voluminous records and admit the summary into evidence. The charm of the rule is that (1) it eliminates the need for tedious searching through documents to locate the nuggets you need and eliminates as well the tedious testimony it takes to do that, and (2) it makes the judge’s job easier, which makes the judge happier, and a happier judge is better for your case than a grumpy one.

So you’ve gone and condensed those ten years of credit card statements into a summary showing the expenditures for jewelry for the opposing party’s girlfriend, their trips to Gulf Shores, the vacation spending on the family, and the payments on the credit card showing that he never ran a balance until the separation, when the balance began to balloon. All great stuff, and it’s going to help your alimony claim big time.

You proudly offer the summary and your wily opponent objects. Sustained. Every attempt you make to get the summary in meets with an objection. Sustained. You close your eyes and silently curse the judge who gave you the idea to go to all the trouble to do the summary in the first place. Where did you go wrong?

Well, you have to lay a foundation first.

To get a Rule 1006 summary into evidence, you have to establish 5 things:

That the original writings, recordings or photographs are, in fact, voluminous;
That the originals can not be conveniently examined in court;
That the originals, or duplicates, have been made available for examination or copying, or both, by the other party at a reasonable time and place;
That the originals would be admissible in evidence; and
That the chart, summary or calculation offered in lieu of the voluminous originals is fair and accurate.

Now, let’s rewind the above scenario and do it right (assuming you’ve already laid a foundation for entry of the credit card statements):

You: Mrs. Smith, did you have an opportunity to examine all 120 of the MasterCard statements?

Witness: Yes, I did.

You: How many pages of statements were there?

Witness: More than 600.

You: After you examined them, what did you do?

Witness: I extracted certain information, collated it into categories, and organized it into a summary. I also highlighted the various charges on the original duplicates in colors corresponding with the categories.

You: Does your summary fairly and accurately duplicate and summarize the information in the credit card statements?

Witness: Yes.

You: Your honor, I would ask that the record reflect that I did make the original credit card statements available to counsel opposite for examination and copying in discovery more than three months ago.

Counsel Opp: That is correct, Judge.

You: I offer the summary into evidence.

Counsel Opp: Objection. Best evidence rule, hearsay, self serving, redundant and cloud of witnesses.

Judge: Overruled. Let the document be marked as the next numbered exhibit and admitted into evidence.

That’s really all there is to it. When the judge is poring over his notes and the exhibits to adjudicate the case, he will be extremely grateful that he has that nice summary to use instead of having to dig through 600 pages of credit card statements with thousands of transactions. Not only that, he will be less likely to overlook something you considered critical. The extra money your client has to spend for you to prepare the summary will be worth every dollar.

Wells v. State, 604 So.2d 271, 274-5 (Miss. 1992) is a case that illustrates the use and authentication of a summary in a jury trial.

LAYING THE FOUNDATION FOR A BUSINESS RECORD

March 3, 2011 § 1 Comment

Business records play a role in many chancery court matters. Getting them into evidence can sometimes be crucial to your case.

MRE 803(6) allows introduction of business records, and states that they are “not excluded by the hearsay rule, even though the declarant is available as a witness.” Before you can get the records into evidence, however, you must lay a foundation that the records come within the rule. The four elements of foundation are:

The record was made and kept in the course of regularly conducted business activity;
The record is one that is routinely made and kept in the course of business, in the business’s usual practice;
The record was made at or near the time of the event that it records; and
The record was made by a person with knowledge, or from information transmitted by a person with knowledge, and who reported such knowledge in the regular course of business.

The witness who establishes the four elements will be either the record custodian or “other qualified witness,” who may be any person who can testify that the records satisfy the four elements. The witness need not have personal knowledge of the contents, nor is it required that the witness was custodian at the time the record was made. All that is required is that the witness have knowledge of the procedures under which the records were made and maintained. In H & E Equipment v. Floyd, 959 So.2d 578, 581 (Miss. App. 2007), the trial court properly excluded the invoices upon which the plaintiff sought to sue on open account because the custodian failed to explain how the invoices, many of which were reprints, were created, or that the invoices relied on were created at the time the charges were incurred.

Under the rule, the focus is on when the documents were created, their trustworthiness, and whether they were created in the course of regularly conducted business. Ferguson v. Snell, 905 So.2d 516, 519-520 (Miss. 2004). In Bower v. Bower, 758 So.2d 405, 414-415 (Miss. 2000), husband offered the monthly internet bills to prove wife’s internet usage, and the husband’s testimony was the only authenticating testimony offered. The supreme court held that the trial court properly excluded them as not being proven to be business records; if you click through the criteria above, you can see that husband’s testimony did not meet them.

The fact that the records are maintained on a computer or in a data file does not require any additional foundation requirements.

The person who generated the information in the record must have had personal knowledge, but the person who entered or recorded the information need not have personal knowledge. For example, an employee of the business observes a chemical process and records the temperatures, reactions and times involved in hand-written notes, which she then tenders to a stenographer who turns the notes into a typed record that is maintained by a custodian. The employee who observed must have had first-hand knowledge when the notes were made and if called as a witness, but neither the stenographer nor the custodian are under the same requirement simply to authenticate the documents as business records. In Dillon v. Greenbriar Digging Service, 919 So.2d 172, 174 (Miss. App. 2005), it was held that the trial court properly let in an inspection report, even though the inspector/custodian who testified was not the inspector who performed the documented inspection, because he adequately authenticated it as a business record.

If the record includes a statement by a person who is not a part of the business and is under no duty to make the report, and the statement is offered to prove the truth of the matter asserted, it will be treated as hearsay that is inadmissible, unless it can be shown to come within an exception to the hearsay rule. An example: The business’s employee reports the contents of a conversation he had with a customer. If the statement is offered to prove the truth of the matter asserted by the customer, it is hearsay and will not be allowed in unless it comes within an exception, such as the customer’s own statement offered against him. In Bingham v. State, 723 So.2d 1189, 1190 (Miss. App. 1998), the court of appeals held that a police officer’s report may be admitted only to prove matters observed by the officer, but not to prove inadmissible matter such as the hearsay statements of persons interviewed by the officer. Copeland v. City of Jackson, 548 So.2d 970, 975 (Miss. 1989). But see, Watson v. State, 521 So.2d 1290, 1294 (Miss. 1990), where the supreme court upheld admission of letters of complaint from customers maintained by a bank on the basis that the documents were made a part of the ban business records.

It sometimes happens that records generated by third parties become part of a business’s records. An expert’s report and recommendations, for instance, may be included in the records of a project. The expert’s testimony would not be required for introduction of the report if: (1) the custodian can establish that the expert’s report was incorporated into records kept in the normal course of business; (2) that the business keeping the record relies on its accuracy in the conduct of its business; and (3) “other circumstances” indicate the trustworthiness of the document. Documents that are prepared for litigation or “litigation inspired” are generally found to lack trustworthiness. Jones v. Hatchett, 504 So.2d 198, 201 (Miss. 1987); See, e.g., Gilbert v. Ireland, 758 So.2d 1050, 1053-1054 (Miss. App. 2000)

When the source of the information is an outsider who is not a member of the business organization, the statement may be admissible if there is proof that there is a regular practice of verification by an employee so that the outsider’s statements are adopted by the business and become its own statements. An example of an admissible outsider record would be an invoice submitted by an outside company that is verified by an employee, matched to a purchase order of the business, and attached to records in the business’s files. An example of an inadmissible outsider statement would be a letter from someone not connected with the business that is merely placed in the files of the business.

Objections that the records include ambiguous or inaccurate statements or that they are incomplete go to the probative weight and not to admissibility.

Proof of matters based on absence of entries in business records and admissibility of public records are subjects of other posts.

MRE 902 addresses self-authentication, which may apply to some business records.

UNDUE INFLUENCE IN INTER VIVOS GIFTS BETWEEN SPOUSES

February 28, 2011 § 6 Comments

Mansfield and Patricia were married in 1994, when both were in their 40’s. It was the second marriage for each, and they had children by the previous marriages. Patricia suffered health problems during the marriage, and she received a Phen-Phen settlement in 2001.

On March 15, 2002, Patricia executed a will devising her entire estate to her three adult children and her sister. The will included this language: “Mansfield Langston, my husband, has his own estate in his name, therefore no provision for him is made in this will.”

Soon after in 2002, there was a series of transactions between the parties that ultimately resulted in a home being titled in joint ownership between Mansfield and Patricia, with right of survivorship. The home had formerly been in her sole name. There were other related transactions, the most significant of which was that a $200,000 CD was converted to joint tenancy with right of survivorship.

On May 11, 2005, Patricia died of a sudden illness, and Patricia’s estate was opened by her mother. The estate sought to set aside the joint tenancies in the marital home and the certificate of deposit in order to bring those assets into the estate for distribution to the will beneficiaries, who were Patricia’s adult children and Patricia’s sister.

Following the trial, the chancellor found that a confidential relationship existed between Mansfield and Patricia. Therefore, the chancellor ruled that the burden shifted to Mansfield to prove by clear and convincing evidence that the creation of the joint tenancies was not the result of undue influence. The chancellor held that Mansfield did not meet this burden, and both joint tenancies were set aside and brought into Patricia’s estate.

In the case of Estate of Langston, in a well-reasoned, authoritative opinion by Judge Griffis, the COA on March 30, 2010, reversed the chancellor and held that the presumption of undue influence did not apply to inter vivos transactions between husband and wife. The ruling in effect extended the prior rule that the presumption of undue influence did not apply to testamentary dispositions between spouses.

On February 24, 2011, the Mississippi Supreme Court affirmed the COA in the case of Estate of Langston v. Williams in an opinion authored by Justice Dickinson and joined by all but Graves, who has departed for his federal gig in New Orleans, that concludes with this key language:

“A confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift. And one who claims the gift was the product of undue influence bears the burden of proof.”

The burden of proof is by clear and convincing evidence.

The case was remanded to Sunflower County Chancery Court to allow the estate to make a record on the issue, since the chancellor had ruled (properly under the law in effect at the time) that such a presumption did exist, so that the estate was neither required to prove, nor was it given the opportunity to prove, undue influence.

It’s not uncommon for issues like these to surface in second marriages of older couples where there are children by a prior marriage. If you find yourself being presented with undue influence claims in a similar case, I encourage you to read Judge Griffis’s COA opinion. It’s about as good an exposition of all the applicable case law that you will find.

RESCUING THE FORGETFUL WITNESS

February 24, 2011 § 3 Comments

It’s a familiar scene. The witness is asked a crucial question and suffers that dreaded lapse of memory. “I don’t remember,” she says, and the lawyer knows the answer is right there on counsel’s table. How do you recover?

Unfortunately many lawyers follow the “I don’t remember” response with a leading question in an attempt to suggest the answer. That provokes a series of objections to leading questions and even, “The witness has already said she doesn’t remember, so she can’t answer any questions about this!” Often the examining lawyer gives up and moves on to something else.

The solution is in MRE 612, which allows a witness to use just about anything, admissible or not, to refresh his or her recollection.

Instead of asking that suggestive question, simply ask the forgetful witness whether there is anything she could refer to that would refresh her recollection. When she says she needs to look at her calendar, or her checkbook, or her diary, or her driver’s license, hand it to her and ask her to take a moment and look it over, and then ask the question again. Any objection should be overruled because she said she needed to refresh her recollection, and she should be allowed to do so. Note that any object can be used. It may be a photograph of a loved one, or a pencil, or a cell phone. The rule does not require that it be admissible in evidence.

Whatever object is used is subject to examination and inspection by the other side. And, of course, that is the practice as to any document or object used by a witness on the witness stand. The other party has the right under Rule 612 to offer into evidence those portions relating to the witness’s testimony, and there is a procedure for objecting to portions of the document that are not relevant, and preserving for appellate review any matter not made a part of the record.

It is quite common in court for a witness to say, “I need to look at some papers on the table to answer that.” The court will routinely allow the witness to look at what he or she needs to answer.

Rule 612 is the only procedure available to refresh a witness’s recollection. It is limited to a writing or a tangible object, and does not apply to an out-of-court oral statement, which would simply be an attempt to circumvent the hearsay rule. Eastover Bank v. Hall, 587 So.2d 266, 269 (Miss. 1991).

Some lawyers apparently confuse attempts to refresh the recollection of the witness with MRE 803(5), which pertains to the admissibility of a recorded recollection in a memorandum or record in lieu of the witness’s testimony when the witness has no recollection of the facts in the record. The two rules address different problems: Rule 612 is a method to refresh the recollection of the witness; Rule 803(5) is a way to get the facts in the record via documentary proof when the witness has no recollection.

Another source of confusion for older lawyers is that Rule 612 is a departure from pre-MRCP practice. In the era before MRCP it was much more cumbersome to refresh a witness’s faulty memory. But that was then (now 28 years ago) and this is now. If you’re still playing tapes of pre-rules practice in your head after all these years, you need to get out a rule book and get up to date.

MAKING SURE YOUR CLIENT GETS THE PROPER TAX TREATMENT OF ALIMONY

January 31, 2011 § Leave a comment

An important factor in determining whether to award alimony is the tax consequences of the court order. We all know that periodic alimony is income to the payee and deductible by the payer if it meets the IRS’s requirements.

So what does the IRS consider to be the essential ingredients of an alimony award, either by agreement or by adjudication? Section 71(b) of the Internal Revenue Code (IRC) provides that the following must apply:

There must be cash payments to the recipient or third-party payments;
Payments must be required by a written instrument;
Instrument must not designate the payment as “not alimony” or as some other form of payment;
The payer and payee must not be members of the same household;
Payments may not be treated as child support;
Payments must cease on death of the recipient;
The parties may not file a joint tax return.

Payments that will not be treated as alimony by the IRS include: child support; noncash transfers; payments that are part of a spouse’s community property income; payments for use of property; and payments for maintainenance or upkeep of the payer’s property. Lump sum alimony, which is really an equalizing payment in equitable distribution, is not considered alimony by the IRS.

If you’re planning to use the form to prove the tax effects of alimony that I posted previously, you need to update it to conform to the latest version of IRC § 71(b).

It’s important to give some thought to these provisions regardless of which side you are on in an alimony dispute. If you represent the client trying to get some cash, you might consider proposing to the court or negotiating for it to be in the form of a property division; as such, it would not be considered income. Likewise, you can propose to the judge or negotiate for the payment to omit one of the ingredients above. If you represent the party who will have to pay, make sure you get all of the essential ingredients included so that your client’s payments will be deductible.

ADMITTING A PHOTOGRAPH INTO EVIDENCE

January 24, 2011 § 2 Comments

One of the simplest tasks of a trial lawyer is to get a photograph admitted into evidence, but I have seen some painful exercises as lawyers strive mightily against repeated objections in their task.

Only two things are required to be shown:

That the witness knows relevant facts about the scene or objects represented in the photo; and
That he or she can say that it correctly and accurately portrays those facts (or, as many of us say, “It is a true and accurate depiction …”).

It is not necessary for the witness to establish the date when the photograph was taken because it does not matter what date it was taken if the condition is unchanged. It is not required that the witness describe how the camera mechanism was properly calibrated, or to establish a chain of custody or any other such thing, although I did have a chancellor years ago sustain objection after objection until I guessed that he was requiring me to ask the witness to identify who took the photos. But that judge was in error; who took the photos is not relevant to admissibility. All that is necessary is for the witness to establish knowledge of the matters depicted and to affirm that the photo does truly and accuractely depict the conditions he observed.

For example:

Q. Where is the field located where the body you described was found?

A. Adjacent to my farm house.

Q. Are you familiar with that field?

A. Yes, I am in and around that field every day.

Q. Did you observe the field on the day that the body was found, and in particular the area where it was found?

A. Yes, it was I who found the body while I was working in that field.

Q. Let me show you a photograph and ask you if you can tell me what it shows.

A. This is a picture of the field.

Q. Is this picture a true and accurate depiction of the condition of the field that you observed on that day?

A. Yes.

Then offer it into evidence.

I hope this helps.

UNDERSTANDING THE BEST EVIDENCE RULE

January 12, 2011 § 8 Comments

I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule).

It’s fairly common to hear an exchange like this in court:

Atty 1: How much did you pay for the house?

Atty 2: Objection. The best evidence of what was paid would be the closing statement.

That objection and every one like it should be overruled.

MRE 1002 states:

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required except as otherwise provided in these rules or by law. [Emphasis added]

The rule only applies and requires the original when a party is seeking to prove the content of the original. Farris v. State, 906 So.2d 113, 115 (Miss. App. 2004). It does not apply simply because there exists a writing, recording or photograph that may be considered the “best” evidence of the matter.

The rule comes into play only when (a) the content of the writing, recording or photograph is itself the thing a party is trying to prove, or (b) a party is trying to prove a matter by using a writing, recording or photograph as evidence of it. The rule applies only when one seeks to prove the contents of the writing, photograph or recording so that they may be construed, and does not apply when one is seeking only to prove the existence of a writing, recording or photograph. Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).

An example of (a) would be where the party is trying to testify to the terms of a written contract. The contract itself would be the best evidence, and the original would need to be produced.

An example of (b) would be where the witness is testifying about the a claim based on an invoice that shows the items purchased, dates of purchase and prices. The original invoice would itself establish the claim and would be the best evidence of the transaction.

The rule would not apply to the following situations:

A witness with personal knowledge can testify about how much he earned in a pay period without producing the original pay records. Simply because written documents pertaining to a matter exist does not mean that a witness may not testify on personal knowledge about the matter. On the contrary, though, if the witness does not have personal knowledge and relies on documents for her information, she would be required to produce the original documents.

A witness may testify that a document exists without producing the original, but any testimony about the document’s content will require production of the original.

A person who heard another make a statement that was recorded may testify about what she heard without having to produce the recording.

The rule does not apply to physical evidence that is not writings, photographs or recordings. Riley v. State, 1 So.3d 877, 882 (Miss. App. 2008). In Riley, the appellant argued unsuccessfully that the State had violated the best evidence rule by not offering the original firearm involved in the crime into evidence.

The evidence qualifies as a “duplicate,” as defined in MRE 1001(4).

So here is the bottom line: A witness may testify on personal knowledge about a matter even if there is a writing, recording or photograph that documents the same thing, and the writing, recording or photograph need not be produced in such an event; but you must produce the original if you are trying to prove its content.

An important caveat: Just because you have satisfied MRE 1002 by producing the original does not in and of itself make that original admissible. The document or recording must still meet authentication and hearsay objections, and a foundation must be laid for admission of the photograph.

MRE 1004 provides some exceptions to the requirement for the original, such as loss or destruction of the original, original not obtainable, or original in possession of an opponent. Production of the original may also be dispensed with if the document, recording or photograph pertains only to collateral matters.

CORROBORATION PROBLEMS = DIVORCE PROBLEMS

January 11, 2011 § 3 Comments

I posted here about how crucial it is for the proof of grounds in fault-based divorces to be corroborated.

In Ladner v. Ladner, decided December 14, 2010, the court of appeals again emphasized the strength of the corroboration rule. The court stated at ¶ 10 the familiar principle that “The corroborated testimony must show conduct that ‘endangers life, limb, or health, or creates reasonable apprehension of such danger, rendering it impossible for [the other] spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.'”

Deborah Ladner charged her husband Philip with habitual cruel and inhuman treatment She testified that Philip had been abusive toward her and assaulted her. She offered into evidence two police reports and two rpotective orders, which both the trial judge and the court of appeals found not to be corroborative because all of the information they contained was provided by Deborah. The appellate court also found uncorroborative a statement in a police report that the parties’ son was afraid of his father, and that Philp had broken his daughter’s door in anger because those showed only a troubled relationship with the children and did not corroborate Deborah’s testimony about violence directed at her. The court reversed the chancellor’s decision granting Daborah a divorce on the ground of habitual cruel and inhuman treatment.

Justice Carlton in her dissent would have found the testimony adequately corroborated to grant Deborah a divorce on habitual cruel and inhuman treatment. She quoted from Professor Bell’s treatise that the corroborating evidence need not be sufficient in itself to establish the ground, but only needs to be enough for the court to conclude that the plaintiff’s testimony is true.

An interesting twist in this case is that the chancellor granted both parties a divorce. He granted Deborah a divorce on the ground of habitual cruel and inhuman treatment, and he granted Philip a divorce on the ground of adultery. Philip had raised the issue that it was improper for the chancellor to grant dual divorces, but the court of appeals held that issue to be moot, based on its reversal of Deborah’s divorce.

There are several points chancery practitioners need to come away from this case with:

No corroboration = no divorce. The requirement of corroboration is alive and well, and you need to be sure you have a corroborating witness or two lined up to support your case.
Self-corroboration will not work. The information Deborah submitted to corroborate her claims that she generated was found not to be corroboration, and that makes perfect sense. It’s easy for a party to generate police reports and file charges to build a case. Those kinds of documents are nothing more than her own statements, so they corroborate nothing.
The corroboration has to be linked to the conduct charged. Deborah’s proof about her son and daughter was not tied to conduct directed at her. Maybe the result would have been different if the son had testified that he was afraid of his dad because the son saw him threaten or physically mistreat the mom; if the door-breaking incident had been tied to a rampage in which Philip manhandled Deborah, that may have been the link she needed.

The easiest thing in the world is to tell your client, “Be sure to bring a witness to court who can back up your testimony about how he mistreated you.” That’s a ticket to failure, though. You need to investigate and identify who are the witnesses and what is the competent evidence that will make your client’s claim. It is no less important than discovering the value of that securities account or uncovering that hidden bank account.

CHILDREN AS WITNESSES

December 16, 2010 § Leave a comment

Lawyers who practice in my court are familiar with my prejudice against calling the children of the parties as witnesses in domestic cases. As the Supreme Court has said, ” … parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so, except in the most exigent cases.” Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990).

As for the definition of tender years, “[A] child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998). A child over four years of age may no longer be considered of tender years. Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss.2004). There is a rebuttable presumption that a child under the age of twelve is of tender years. Veasley v. State, 735 So.2d 432, 436-37 (Miss. 1999).

Jethrow does make it clear, however, that there is no per se rule against calling children of the parties as witnesses, and the case prescribes a procedure for the court to examine the child to make a determination whether the child is competent as a witness under Mississippi law and whether testifying is in the child’s best interest.

It is always within the trial judge’s discretion whether to allow the testimony of a child, and the line that I usually draw is to allow the child to testify only where omission of such testimony would be harmful to the child’s best interests. Even then, the court must find after a Jethrow examination that it is in the child’s best interest to testify. It is a weighing test, with the possible harm that may result to the child’s best interest from not testifying on one side of the scale and the possible harm from testifying on the other. Every case is different, and slightly different facts may yield radically different results.

As an attorney, you should counsel your client on the ramifications of calling a child as a witness. It pits the child against one of the parties, puts the child under incredible pressure, and subjects the child to cross examination that may confuse and intimidate the child.

Never, ever, tell your client that the child will definitely be allowed to “talk to the judge” or testify in chambers or out of the presence of the parents. Not only is that misleading and setting the child and the clients up for disappointment, it is not the law. The only way that the law allows the court to take substantive testimony (other than the Jethrow examination) outside the presence of the parties is with their express agreement on the record. MCA § 93-5-17 mandates that divorce proceedings be had in open court. MCA § 93-5-21 allows the court to exclude persons from the court room during a divorce trial ” … except the officers of the court, attorneys engaged in the case, parties to the suit and the witness being examined.” The rule should apply in modifications and contempts, since they are no more than an extension of the divorce trial. Moreover, the Due Process Clause of the U.S. Constitution requires that a party not be excluded involuntarily from his or her own trial.

If you need the child’s testimony to prove a crucial element of your case, ask to make an offer of proof on the point before the court undertakes its Jethrow examination so that the judge will know what it is you are trying to prove and how much weight it carries. If there are other witnesses who can establish the same facts, opt instead to call them.

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