It is common for family law attorneys to turn to trusted websites, such as the CDC, NIH, or Michigan Department of Health and Human Services, when preparing for a custody dispute over medical care. But what happens when you want to introduce that internet-based information in a Michigan courtroom? The Michigan Court of Appeals case Kagen v. Kagen, unpublished per curiam opinion of the Court of Appeals, issued Nov 27, 2013 (Docket No. 318459), explains how reliable internet-sourced information is admissible under the catchall hearsay exception, MRE 803(24).
The Issue in Kagen v. Kagen
In Kagen, the parties shared joint legal custody of their children, meaning both parents had input over the children’s medical care. The dispute arose when the father petitioned the court to intervene and order vaccinations over the mother’s objection. In support of his petition, he sought to admit official articles from the CDC, NIH, FDA, and the Michigan Department of Community Health. These articles highlighted the safety and efficacy of immunizations for children.
The trial court did not admit the articles, citing them as inadmissible hearsay because they were offered for the truth of the matter asserted. The court further stated that under the “best evidence rule”, testimony from the children’s pediatrician would have been more probative of the issue concerning immunizations. On appeal, however, the Michigan Court of Appeals reversed, stating that the catchall exception under MRE 803(24) allowed for the admissibility of these articles.
Understanding the Catchall Exception – MRE 803(24)
MRE 803(24) permits the admission of hearsay evidence not specifically covered by other exceptions if it bears “equivalent circumstantial guarantees of trustworthiness.” To qualify under this exception, a statement must meet four requirements outlined in People v. Katt, 468 Mich 272, 290 (2003):
- Trustworthiness: The statement must demonstrate circumstantial guarantees of trustworthiness equivalent to the enumerated exceptions.
- Materiality: The statement must relate to a fact essential to resolving the issue.
- Probative Value: The statement must be more probative of the issue than any other evidence reasonably available.
- Interests of Justice: Admission of the evidence must serve the general purposes of the Michigan Rules of Evidence and the interests of justice.
Additionally, the proponent must give the opposing party reasonable notice of intent to use the statement.
Applying the Test in Kagen
The appellate court disagreed with the trial court’s finding that the “best evidence” would have been testimony from the children’s pediatrician. The appellate court recognized that a general practitioner might not have specialized expertise in immunization safety. Instead, the court concluded that studies and publications from public health agencies such as the CDC and NIH were more probative on the issue of immunization efficacy and risks.
The appellate court found that:
- The articles bore sufficient guarantees of trustworthiness due to their official source and widespread public dissemination.
- The articles were directly relevant to the material issue of whether immunizations were in the children’s best interests.
- These articles were the most probative evidence reasonably available, especially given the impracticality of compelling expert testimony from national health officials.
- Admission of the evidence would serve the interests of justice, helping the court make a well-informed determination regarding the children’s medical care.
Practical Implications for Michigan Family Law Attorneys
Kagen provides a valuable precedent for attorneys seeking to introduce reliable, internet-sourced evidence in Michigan family court. Attorneys should be mindful of the Katt factors and ensure that any proposed internet-based evidence:
- Comes from a well-established and trustworthy source (e.g., governmental or academic institutions),
- It is highly relevant to the issue at hand,
- Cannot be reasonably substituted with more direct testimony,
- Is disclosed to opposing counsel with sufficient notice and specificity.
In custody, medical care, or best interest hearings, where expert witnesses may not be available or affordable, Kagen supports a practical way for introducing important and relevant written materials that help the court make informed decisions.
Conclusion
The Kagen decision shows a shift in Michigan courts toward increased admissibility of internet-based evidence, so long as it satisfies the requirements of MRE 803(24). For family law attorneys across Michigan, this opens the door to leveraging credible public health and scientific data in support of their clients’ positions, particularly in disputes involving the medical care of children.
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[Disclaimer: This content is for informational purposes only and does not constitute legal advice. Consult an attorney for personalized guidance.]