Disclosure Matters in Divorce
In the film My Cousin Vinny, recently “licensed” (he was practicing illegally) defense attorney Vinny Gambini brags to his fiancé, Mona Lisa Vito, that he was able to get the prosecutor to hand over his files.
Unimpressed, she replies, “He has to, by law. You’re entitled. It’s called disclosure.”
Disclosure is the process of providing the documents you want to use in Court to the other side. It also requires parties to disclose who they are going to call as witnesses ahead of time. This is no small thing—If you do not disclose the documents, you cannot use them in a subsequent trial.
Almost every time I have seen an unrepresented person going up against an attorney in Court, I have seen some version of the following play out:
Self-represented person (known as a pro per in Arizona) begins reading from a document.
Attorney: Objection, Your Honor. Facts not in evidence.
Judge to Pro Per: What are you reading from?
Pro Per: (Identifies document)
Attorney. Objection. Non-disclosure.
Judge to Pro Per: Did you provide opposing counsel with a copy of that document?
Pro Per: No, I didn’t.
Judge to Pro Per: Why not?
Pro Per: I did not know I had to.
Judge: Then you can’t use the document. Objection sustained.
At this point, the face of the unrepresented person becomes crestfallen. They are not going to be able to present pivotal evidence for their case. In their mind, their evidence was kept out on a technicality.
But non-disclosure is more than a technicality. The reason behind the omitting undisclosed evidence is quite important—it is an issue of fairness.
The American justice system is an adversarial one. It requires both parties to go and find the evidence they need to make their case. How are you supposed to make a case if you do not know the allegations or evidence that is against you?
Contrary to what you might see every week on “Law and Order,” the American judicial system is designed to prevent surprise evidence. The surprise witness or surprise document may make for captivating television, but it also makes for lousy court procedure.
What judges don’t want is “trial by ambush”—where someone learns for the first time the nature of the allegations and evidence against them. Not only do judges not want this—the Constitution’s guarantee of due process protects against it. Because due process, at its core, is to know what’s going to be said about you in Court and to be given the chance to respond.
That is not to say evidence that has not been disclosed can never come in, but there generally needs an extremely justifiable explanation for why it was not disclosed earlier. In custody cases we see this commonly with DCS records, because the department often takes a while to provide records and sometimes they come just prior to the trial.
So when someone tries to introduce evidence they have not disclosed, the judge is going to be rightfully inclined to not admit it.
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