A Virginia Beach judge probably got more than he bargained for when he gamely plunged into the divorce of a couple of Iranians. Among the many seldom-seen issues it brought up were what to do when one spouse files a bigamy charge just before the final equitable distribution hearing (O.K. to reject it), and how much a judge is obligated to let grossly questionable evidence in just because the other party doesn’t properly object to it.
That issue arose because husband submitted in evidence what he said was an official transcription of videotapes in Turkey. The husband characterized them as a de bene esse deposition, and said that since no timely objection was made as required by the pre-trial scheduling order, objections were waived. The Court of Appeals very helpfully points out the distinction between an exhibit being admissible, and the idea that a judge was precluded, as the fact finder, from giving it no probative weight. This judge found the transcription of the missing tape supposedly made in Turkey inherently unreliable, and hence useless, and the judge has the right to do that, with or without objection. Why was it inherently unreliable? To begin with, the tapes themselves were never offered, only the transcription, so that accuracy could not be checked at all. There was nothing to show the credentials of the translator, establish the disinterested objectivity of the interpreter, or even identify the language the witness was speaking. The supposed court reporter who “officially transcribed” the English version given by an interpreter admitted she did not understand all of the interpreter’s English, and transcribed only what she understood. Even if it were wrong to ignore the failure to object by a pre-trial scheduling order’s deadline, that error would be harmless here. The husband’s brother was a missing witness, who had testified at the wife’s criminal bigamy trial (some place) but had gone back to Iran, and the husband wanted to introduce this criminal trial testimony of the brother. It was not an abuse of discretion to exclude that evidence. There was no reason the brother could not have given a de bene esse deposition of his own while still here. And as to the standard of proof for bigamy in an annulment action, there was nothing wrong with this trial judge’s requiring clear and convincing proof. 20 VLW 1121 (2/14/06).