Can You Use Internet Articles as Evidence in Family Court?

The Internet is part and parcel of our daily lives — not just in America, but world-wide. Smartphones are more common than clean water in some parts of Africa, and experts estimate that somewhere between 25% and 50% of the U.S. economy is currently operating through the ‘grey market’ of barely-regulated Internet transactions between individuals. And of course almost everyone who has a mobile device uses it for a very common purpose: looking up facts to win arguments with friends.

Of course, in court, things don’t work that way. Getting your facts from the Internet rather than from a qualified expert is called “hearsay,” insofar as you’re literally pointing at something that someone else (who isn’t present in court) said some time ago, with no real verification of the context in which they said it. That’s exactly what the hearsay rule exists to prevent. But there are exceptions.

Kagen v. Kagen
The Michigan Supreme Court, in 2013, reviewed the case Kagen v. Kagen, in which two divorced parents shared joint legal custody (i.e. they were obligated by the court to both participate in major life-affecting decisions) of their minor children. The mother had decided that she didn’t want her children to get vaccinated; the father believed that vaccination was an obvious thing to do.

The Family Court threw out the foundation of the father’s argument entirely when the judge learned that the father had presented all of his evidence in the form of printouts from the CDC, the NIH, the FDA, and the Michigan Department of Community Health. All of it was deemed hearsay, and the court ruled in favor of the mother, noting that if the father had brought a real person — say, the kids’ pediatrician — in to testify, he probably would have won.

The case was brought up before the Michigan State Supreme Court, which carefully examined the issue of hearsay as regards Internet articles, and came to the conclusion that the trial court had made an error in throwing out the testimony, and reversed the decision. But why?

What is Hearsay?
According to Michigan state law, hearsay is any statement offered to prove the truth of a matter “other than the one made by the declarant while testifying at the trial or hearing.” In other words, if it didn’t come out of the mouth of a person who has credibility and is present and testifying, it’s hearsay. But there are a surprising amount of exceptions to the hearsay rule.

The Catchall Exception
The broadest exception to the hearsay rule is the ‘Catchall’ exception, which says that hearsay is admissible as evidence if:

• The statement is offered as evidence of a material (i.e. relevant) fact,
• The statement is the best evidence that can be obtained in regards to that fact, and
• The interests of justice are served by admission of the statement.

The Family Court that originally tried Kagen noted that the child’s pediatrician would have been a good witness, and the Supreme Court interpreted that note as a claim about the second point — the “best evidence” requirement of the catchall exception.

They noted that, while the child’s pediatrician is a general practitioner, the information that the father had brought into court from the CDC, etc., was written by experts that were presumably better-informed about the specific nature of immunization than a general practitioner would be. Thus, because it was unlikely that the father could possibly obtain an actual person from the CDC or FDA to come in an testify, the statements made by those individuals online were, in fact, the best evidence available to the father.

Thus, while the Internet in general is still almost entirely hearsay as far as a court is concerned, on matters of fact where a live expert cannot be brought in to testify, it is possible that a web page may suffice as evidence. Of course, there are innumerable questions of credibility, authenticity, and so on — but in general, cogent articles or posts by acknowledged experts written in their role as experts should be allowable in family court under the precedent set forth in Kegan v. Kegan.