Suppose you represent a father who wants sole custody of his kids because their mother verbally abuses them. The father is desperate to prove his side of the story, so he starts recording the mother’s interactions with the children. He presents you with several recordings of her hurling insults and screaming profanities at them. Do these recordings present an opportunity or a cause for concern?
Maybe both, says Daniel Victor, in his new Top Tips presentation, “Using Video Recordings in Contested Child Custody Cases.” Playing a video recording in court can be a powerful way to simultaneously submit direct evidence and impeach the other party. Using our example, let’s say you expect the mother will deny verbally abusing the kids. Daniel would suggest calling her to the stand and asking about the events your client recorded. If she denies them, play the recordings. You’ve then submitted direct evidence of the mother’s verbal abuse and diminished her credibility.
But before you get too excited about using a smoking gun to catch a lying witness, be sure that doing so won’t put your client on the hook. Using a recording device for “eavesdropping” is a felony under MCL 750.539c. Daniel advises that you review the definition of eavesdropping in MCL 750.539a and, if necessary, consult a criminal defense attorney to evaluate whether revealing the recording could expose your client to liability.
For more, see “Using Video Recordings in Contested Child Custody Cases.”