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The Admission Of Internet Based Evidence An Exception To Hearsay
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The Admission of Internet Based Evidence; An Exception to Hearsay

By Lisa D. Stern

How many times when preparing for a hearing have you turned to the internet to review industry leading information on the topic at issue in your case? Who amongst us hasn’t thought about how simple it would be if the court permitted the introduction of facts obtained through an internet search? As a result of Kagen v. Kagen, unpublished per curiam opinion of the Court of Appeals, issued November 27, 2013 (Docket No. 318459), the ability to present the court with information obtained from the internet may be the new reality.1

The Question Presented

In Kagen v. Kagen, the parties shared joint legal custody of their minor children. The issue presented to the court was whether the children should be immunized over the objection of the mother. In support of his argument that the children’s vaccinations should be updated, Mr. Kagen attempted to proffer articles prepared by the Center for Disease Control, the National Institute of Health, the Food and Drug Administration, and the Michigan Department of Community Health.

The Basics of Hearsay

The circuit court found the aforementioned evidence to be hearsay. Specifically, the court concluded that the proffered evidence was inadmissible under MRE 801 because it was offered in evidence to prove the truth of the matter asserted and because the declarants were unavailable. In this case, the truth to be asserted, as set forth in the aforementioned articles, was that childhood vaccinations are safe and help to protect children from illness and disease.

The Catchall Exception to Hearsay

On appeal, Mr. Kagen argued that these articles fall within the catchall exception to hearsay MRE 803 (24). As many likely recall, MRE 803 is a compilation of the hearsay exceptions where the availability of the declarant is immaterial. MRE 803 (24) provides:

Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness [is admissible], if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of the statement makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

The Court of Appeals discussed the requirements of MRE 803(24) as had previously been enumerated by People v Katt, 468 Mich 272, 290; 662 NW2d 12 (2003). According to People v Katt, “[t]o be admitted under MRE 803(24), a hearsay statement must:

  1. demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical exceptions,
  2. be relevant to a material fact,
  3. be the most probative evidence of that fact reasonably available, and
  4. serve the interests of justice by its admission.” Id. at 290.

Application of the Four Factors

  • In determining whether the first requirement is met, the Supreme Court has stated that “courts should consider all factors that add to or detract from the statement’s reliability. Id. at 292.
  • To meet the second requirement, the Supreme Court has provided that the evidence must be relevant to “[a] fact that is significant or essential to the issue or matter at hand.” Id., quoting Black’s Law Dictionary (7th ed).
  • The third requirement is that the proffered statement be the most probative evidence reasonably available to prove its point. It essentially creates a “best evidence” requirement. Id. at 293.
  • With respect to the fourth element of the Katt test, a court may refuse to admit evidence that satisfies the first three prongs “if the court determines that the purpose of the rules and interests of justice will not be well served by the statement’s admission. Id.

In Kagen, the trial court had excluded the evidence based upon the third factor, holding that Mr. Kagen should have presented the testimony of his children’s pediatrician with respect to whether updating vaccinations of the children would be in their best interests. The Court of Appeals held that the circuit court abused its discretion when it excluded Mr. Kagen’s proffered evidence based on the “best evidence” requirement of MRE 803(24). The trial court’s contention that the best evidence about the safety and necessity of childhood vaccinations would have come from the children’s pediatrician was erroneous because, according to the Court of Appeals, even though the pediatrician’s live testimony would be non-hearsay derived from firsthand knowledge, the children’s pediatrician is a general practitioner and likely does not possess detailed personal knowledge on the safety, effectiveness, and potential risks of immunizations.

The court held that the most probative evidence that could be provided to the trial court was information studied and prepared by national experts, the same individuals who authored the articles offered into evidence by Mr. Kagen. While the issue of hearsay clearly would have been avoided by securing the attendance of these nationwide experts at the hearing, the court recognized that procuring such witnesses is neither cost-effective nor realistic. As such, the court held that the most probative evidence reasonably available for the trial court was in fact, the articles presented by Mr. Kagen.

In addition to the above “best evidence” determination, the Court of Appeals, relying upon Katt at 291 n.11, held that the evidence presented by Mr. Kagen was reliable. In Kagen, all of the internet generated information was from official and formal statements by governmental agencies. The court held that presentation of this information in a public forum and as part of the author’s official duties suggests “that the declarant would have been likely to consider the accuracy of the statement when making it.” Id.

The Court also found that the materials offered were highly relevant to a material point of the case; i.e., whether the children should be vaccinated. The court held that “[t]he opinions of the particular government agencies would certainly assist the fact finder in resolving whether the best interests of the children would be served by vaccination against disease.” Kagen at 11.

The Implication of the Kagen Decision

It is now incumbent upon all attorneys to engage in thorough internet research regarding any fact-based issue and to make a determination as to the potential admissibility of such research based upon the standards set for in Kagen. Because of Kagen, it may now be possible to avoid the exclusion of pertinent, internet-based evidence to an objection based in hearsay. This will allow parties to present evidence otherwise not readily attainable and to allow the court to make better reasoned decisions in the best interest of children. Practitioners should attempt to obtain the information from objectively reliable sources, preferably extensively researched and vetted studies or other journals from recognized experts in a particular field.

Lisa D. Stern is a partner at Hertz Schram PC where she practices in the Domestic Relations/Family Law Section. She is a graduate of Wayne State Law School. Her entire practice focuses on family law matters. Her practice involves all aspects of family law including divorce, child custody, child support, parenting time, spousal support and property division. She is familiar with complex issues such as Hague Child Abduction Convention cases, interstate custody and support issues, adoption and marital torts. Lisa enjoys camping with her children and travelling with her husband. Ms. Stern is a member of the OCBA Family Law Committee, a member of the Family Law Section of the State Bar of Michigan, a member of MIPA and a member of the Hague Convention Attorney Network.

1 It should be noted that Kagen v. Kagen (2013) is the first time this case went up to the Court of Appeals. On July 14, 2015 the Court of Appeals issued an additional unpublished per curiam opinion, Docket No. 318459.

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