Ask a Divorce Lawyer: Can off-the-cuff remarks made in e-mails come back to haunt me in court? Are they admissible?

Question: My wife kicked me out of our home 2 weeks ago, much to my surprise. In my begging and pleading to come back, I took responsibility for all our marital problems, to include what she termed verbal and emotional abuse. Unfortunately, I accepted all the blame in e-mails. 

Can this come back to haunt me if she chooses to use it against me for custody, or do courts recognize that I was completely blindsided by her actions, and was grasping at straws trying to save my marriage by accepting responsibility for all of our problems?

 

Answer:

So, your spouse caught you in an e-mail trap? Unfortunately, you are not alone. As our web-savvy era grows, and more and more people have Facebook and use MySpace, “tweet” and text, the admissibility and weight of each spouse’s electronic communication in court becomes an increasingly hot-button issue. The tossed-about phrase with non-lawyers is, “It’s hearsay; it can’t come in.” You should consult with a lawyer in your state to learn whether, if at all, that is true. Generally, your statements can be admissible in a legal proceeding against you as substantive evidence (they are called “admissions”) or as impeachment (to hamper your credibility in court).

The short answer for you is, yes, your statements probably can come back to haunt you in court. This is because, assuming your wife or her attorney can show the written statements are yours (they came from your e-mail account, and there is a reasonable certainty that you typed them), they are likely admissible.

But do not fear. There is a difference in the law of evidence between “admissibility” and “weight.” “Admissible” means the proffered evidence meets the jurisdiction’s requirements for authentication and acceptance into evidence. “Weight” means how much attention the fact-finder (judge or jury) will give to it. Evidence may be admissible, but the fact-finder may afford it little or no weight. For example, your wife or her attorney may be able to show the e-mails are yours, but the fact-finder may decide to ignore it (give it little weight) when you explain the surrounding circumstances – your guilt, your desire to make amends, the stress and pain and sadness you were under, etc. etc.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in New Hampshire. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in the area for additional information and legal representation.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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