EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, September 27, 2012

Friendship Request, Take 2: Court Of Appeals Of Utah Finds District Court Improperly Deemed Facebook Screenshots Inadmissible

In a custody dispute, a doctor testifies on behalf of the father, and the court eventually grants temporary custody of the child to the father, and, following a hearing, orders joint legal and joint physical custody of the child to the father and the mother. The mother thereafter appeals and claims that the district court erred by precluding her from introducing screenshots from Facebook that allegedly revealed that that the doctor and one of the father's attorneys had a friendship that, if established, would cast doubt on the impartiality of the doctor's recommendations. How should the court rule? Let's look at the recent opinion of the Court of Appeals of Utah in Black v. Hennig, 2012 WL 412112 (Utah App. 2012).

In Hennig, the facts were as stated above. At trial, the district court had determined that the Facebook evidence was extrinsic evidence offered to attack the doctor's truthfulness and prohibited its admission under Utah Rule of Evidence 608(b), which provides in relevant part that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1)   the witness; or  

(2)   another witness whose character the witness being cross-examined has testified about.

The Court of Appeals of Utah agreed with the mother and disagreed with the district court, stating:

We observe that the specific instance of conduct at issue in this case, was not, as the district found, being offered as an attack on the truthfulness or untruthfulness of Dr. Hale regarding whether she had shopped with Hennig's attorney. Rather, the Facebook screenshots were offered as evidence in an attempt to demonstrate that Dr. Hale and Hennig's attorney frequently contacted one another and that they had a long-standing friendship, which friendship, if established, would demonstrate bias or a motive to testify differently than would otherwise be the case. Extrinsic evidence pertaining to a prior instance of conduct is, however, admissible to show a witness's bias or motive to testify and is not subject to exclusion under rule 608(b)

Instead, extrinsic evidence of bias is admissible under Utah Rule of Evidence 608(c), which states that "[b]ias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by other evidence." Therefore, the court ruled that the district court should have deemed the screenshots from Facebook admissible.



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