Evidentiary Issues in Children s Court. Children s Law Institute January 8, 2015

Transcription

1 Evidentiary Issues in Children s Court Children s Law Institute January 8, 2015

2 Abuse/Neglect Proceedings The Rules of Evidence apply at: Adjudicatory Hearings Termination of Parental Rights Permanent Guardianship Hearing

3 Delinquency Proceedings Adjudicatory Hearing Probation Revocation Hearing

4 Scenario No. 1 Part A At an adjudicatory hearing on an abuse petition alleging sexual abuse of seven-year-old Amy, CYFD does not put Amy on the stand. Rather, CYFD gives notice to SF and calls Amy s teacher, T, to testify about statements that Amy made to her. According to T, one morning at school she noticed that Amy was sitting alone at the back of the class. At recess, T took Amy aside when the other children had left the room and asked her what was wrong. Amy finally told T that her stepfather, SF, had touched her down there (pointing to her crotch) and hurt her. T immediately called CYFD. What could SF s attorney argue? What could CYFD argue? How should the court rule?

5 Inadmissible hearsay out of court state offered to prove the truth of what Amy said

6 CYFD RULE RESIDUAL EXCEPTION A. In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule NMRA or Rule NMRA: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice. B. Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

7 Due Process Issues In the Matter of Pamela A.G., 139 N.M. 459, 2006-NMSC-019, 134 P.3d 746. [Note: Sixth Amendment s Confrontation Clause does not apply in civil cases.] Factors to be weighed in due process balancing test: (1) the private interest (parents interest in the relationship with their child; (2) whether the procedures used increased the risk of an erroneous deprivation of that interest and whether additional safeguards would lower that risk; and (3) the government s interest (the welfare of children). Trial judge must determine the proper procedure and safeguards to be utilized in each case, based on factors such as the age of the child, the nature of the parent-child relationship, and the particular emotional state of the child. Court should probe for an explanation as to why a child will not testify, such as explanation offered by the therapist here. Alternative procedures such as videotaped depositions or testimony in camera have been used to prevent possible psychological trauma to the child. Note: Uniform Child Witness Protective Measure Act, 38-6A-1 et seq. (effective date July 1, 2012) (some question it is constitutional since generally the Supreme Court controls procedure).

8 Scenario No. 1 Part B Assume for purposes of this question that the court permits T to testify about Amy s statements to her. Amy had not taken the witness stand. SF s attorney calls Amy s mother to testify that Amy hated SF and that during a supervised visit after these abuse proceedings had been filed, Amy told her that she had lied about SF and that he had not touched her. What could CYFD argue? What could RA argue? How should the court rule?

9 Rule ATTACKING AND SUPPORTING THE DECLARANT'S CREDIBILITY When a hearsay statement--or a statement described in Rule (D)(2)(c), (d), or (e) NMRA--has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

10 Scenario No. 1 Part C Amy is examined by a Nurse Lopez, who is a nurse in the sexual assault nurse examiner program (SANE). During the patient-history interview, Amy described specific details of the alleged abuse and, in response to a direct question, identified SF as her abuser. During her testimony at this hearing, Nurse Lopez explained how, in her judgment, most of the questions and answers during the interview pertained to medical diagnosis or treatment of Amy. What arguments should SF s attorney make to challenge the admission of Nurse Lopez s testimony regarding what Amy said to her. What could CYFD argue? How should the court rule?

11 Rule (4) The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (4) Statement Made for Medical Diagnosis or Treatment. A statement that (a) is made for--and is reasonably pertinent to--medical diagnosis or treatment, and (b) describes medical history, past or present symptoms, pain, or sensations, their inception, or their general cause.

12 State v. Mendez, 148 N.M. 761, 773, 2010-NMSC-044, 242 P.3d 328 ( Statements made to a SANE nurse can be admissible for purposes of medical diagnosis or treatment, but trial courts must exercise exacting scrutiny to ensure trustworthiness. )

13 Scenario No. 2 At this adjudicatory hearing on an abuse and neglect petition, CYFD calls the social worker, SW-2, to testify about the facts leading to the removal of the children from Mother s home and the filing of this petition. SW-1 was the original social worker assigned to the case. She is no longer employed by CYFD and has left the state. SW-2 was recently assigned to the case and has reviewed the electronic case file on the CYFD computer FACTS system which contains, among other things, entries made by SW-1. SW-2 testifies that according to entries in FACTS:

14 Scenario No. 2 Part A SW-1 went to Mother s home at 1434 Riggs Rd., N.W. in Albuquerque at approximately 11:00 a.m. on August 22, After SW-1 knocked intermittently for about five minutes, Mother finally opened the door. She was still dressed in her nightgown and appeared to be intoxicated. Her speech was slurred, and she smelled of alcohol. SW-1 explained why she was there and asked to see the children. There were two children in the home ages three and one. They were filthy and appeared to be malnourished. There was no food in the kitchen cabinets or the refrigerator. The home was also filthy with feces scattered around the living room.

15 Scenario No. 2 Part B SW-1 asked Mother when she had last fed and washed the children. Mother stated that I feed them when I have food, but it s been a few days; and I clean them when I feel like it.

16 Scenario No. 2 Part C After the children were taken from the home and placed with a foster family, SW-1 spoke to the neighbor, NB, who lived next door to Mother. NB told SW-1 that there was a steady stream of men visiting Mother and that when the men were there, Mother often left the children on the front porch without supervision. NB had seen Mother intoxicated or high on something almost every day.

17 Scenario No. 2 What arguments should Mother s attorney make? How could CYFD respond? How should the court rule?

18 Rule REQUIREMENT OF THE ORIGINAL An original writing, recording, or photograph is required in order to prove its content unless these rules or a statute provides otherwise.

19 Rule ADMISSIBILITY OF OTHER EVIDENCE OF CONTENT An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if A. all the originals are lost or destroyed, and not by the proponent acting in bad faith; B. an original cannot be obtained by any available judicial process; C. the party against whom the original would be offered has control of the original, was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing, and fails to produce it at the trial or hearing; or D. the writing, recording, or photograph is not closely related to a controlling issue.

20 Scenario No. 3 In the same case as in Scenario No. 2, at the adjudicatory hearing CYFD seeks to introduce a printout from the FACTS file that contains the following information: [Information entered by SW-1] I went to Mother s home at 1434 Riggs Rd., N.W. in Albuquerque at approximately 11:00 a.m. on August 22, After I knocked intermittently for about five minutes, Mother finally opened the door. She was still dressed in her nightgown and appeared to be intoxicated. Her speech was slurred, and she smelled of alcohol. I explained why I was there and asked to see the children. There were two children in the home ages three and one. They were filthy and appeared to be malnourished. There was no food in the kitchen cabinets or the refrigerator. The home was also filthy with feces scattered around the living room. I contacted the police who took the children into custody.

21 Scenario No. 3 What foundation would the sponsoring witness need to lay to admit this record under the business records exception (6)?

22 Rule (6) The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if (a) the record was made at or near the time by--or from information transmitted by--someone with knowledge, (b) the record was kept in the course of a regularly conducted activity of a business, institution, organization, occupation, or calling, whether or not for profit, (c) making the record was a regular practice of that activity, and (d) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Paragraph 11 of Rule NMRA or Paragraph 12 of Rule NMRA or with a statute permitting certification. This exception does not apply if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

23 Foundation for Business Record Original source of information person who provides the information in the business record must Have first-hand knowledge of the information and Must have a regular business duty to acquire and report the information

24 Each person supplying information to the record must have a business duty to do so. They must be acting in the regular course of the business Otherwise another exception to the hearsay rule would have to apply to statements added by outsiders.

25 Foundation for Business Record Record must be some physical (or physically reproducible form): on paper, on tape, on computer disk or data base. Mental business records don t qualify. Must have been created in connection with a business, organization, occupation or calling Making the record must have been a regular practice of the entity, occupation or calling

26 Foundation for Business Record The record must also be kept as part of the regularly conducted activity of the entity, occupation or calling The subject of the record may be an act, event, condition, opinion, or diagnosis

27 Foundation for Business Record Trustworthiness clause may be excluded if the source of the information [or] the method or circumstances of preparation indicate a lack of trustworthiness May call custodian or someone with relevant knowledge to lay foundation or may authenticate and qualify the record by certification

28 Rule (11) The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule (6)(a) to (c) NMRA, as shown by a certification of the custodian or another qualified person that complies with a statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record--and must make the record and certification available for inspection--so that the party has a fair opportunity to challenge them.

29 Scenario No. 3 What foundation would the sponsoring witness need to lay to admit this record under the public records exception (8)?

30 Rule (8) The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (8) Public Records. A record or statement of a public office if (a) it sets out (i) the office's activities, (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel, or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation. This exception does not apply if the source of information or other circumstances indicate a lack of trustworthiness.

31 Foundation for a Public Record Rule (8)(a)(ii) Original source of information an employee of the public office must have observed first-hand the condition or event described in the report Record -- must be some physical (or physically reproducible form): on paper, on tape, on computer disk or data base. Mental business records don t qualify.

32 Foundation for a Public Record Rule (8)(a)(ii) Public office Making the record must be shown that the office or agent has an official duty to observe and report the event or condition in question Record must be made pursuant to a legal duty but does not explicitly require that it be kept pursuant to this duty

33 Foundation for a Public Record Rule (8)(a)(ii) Permissible contents: Report must be based upon information obtained first-hand by a government employee The employee must have an official duty to observe and report on the event or condition in question; and The office must have an official duty or purposeo to observe and report on such matters.

34 Foundation for a Public Record Rule (8)(a)(ii) Contains a trustworthiness clause like (6) Excludes in criminal [and probably delinquency] cases matters observed by law enforcement personnel

35 Foundation for a Public Record Rule (8)(a)(iii) Original source of information does NOT require that a public agency or officer have first-hand knowledge of the events or conditions in question Absence of first-hand knowledge by the government investigator is not a basis to exclude a factual finding, so long as the investigation was properly conducted by people with the necessary knowledge and experience to evaluate the information they gathered.

36 Foundation for a Public Record Rule (8)(a)(iii) Record -- must be some physical (or physically reproducible form): on paper, on tape, on computer disk or data base. Mental business records don t qualify. Public office the factual finding must be one made by a governmental body, not a private company or individual.

37 Foundation for a Public Record Rule (8)(a)(iii) The factual finding must be one that result[s] from a legally authorized investigation. There is no regularity requirement. Timeliness is relevant only to extent it affects trustworthiness. Contains a trustworthiness clause like (6) Admissible in a civil case or against the government in a criminal case.

38 Foundation for a Public Record Rule (8)(a)(iii) Authentication Calling a record custodian or other qualified witness Certification pursuant to (1), (2), or (4)

39 Mechanics for Introducing Exhibits 1. Mark the exhibit (if not before trial, then when you need to use it) 2. Show it to opposing counsel 3. In some courts, ask to approach the witness need to know your judge

40 4. Hand the exhibit to the witness and refer to it by name -- Mr. X, I am handing you what has been marked as Defense Exhibit 1 for purposes of identification. 5. Lay the foundation. 6. Offer the exhibit into evidence (preferably by name ). 7. Publish it to the jury and use it.

41 Laying the Foundation Why am I offering this exhibit? What am I claiming that it is? The answers to those questions, helps you know what sort of foundation you must lay.

42 Examples Photo need a witness to say that the photo fairly and accurately shows something of relevance to the case Diagram Same (whether to scale or not may not be important, but it depends on the purpose for which you are offering the exhibit) -- Would it assist you in your testimony to be able to refer to...

43 More examples Tangible items Uniquely identifiable items -- e.g., the gun used in the shooting need witness who can say that that is the gun used in the shooting or the gun recovered from the scene or whatever it is you are claiming it is may also need chain of custody if you are claiming that tests conducted on the gun established that a certain bullet was fired by that gun If any concern about tampering or altering Is it in substantially the same condition as when....

44 Tangible items Not uniquely identifiable (e.g., white powder you claim is cocaine) Will need witness(es) to show it is the white powder seized from D and then you will also need witnesses to testify that it is the same white powder that was tested and came back positive for cocaine thus often need to show a chain of custody.

45 Documentary Exhibits Five possible evidentiary concerns: 1. Relevance (Rules to ) 2. Authentication (Rules to ) 3. Hearsay (Rules to ) 4. Original Documents or Best Evidence Rule (Rules to ) 5. Privileges (Rules to )

46 Scenario No. 3 What arguments could Mother s attorney make? How could CYFD respond? How should the court rule?

47 Scenario No. 4 In the same case as in Scenarios No. 2-3, at the adjudicatory hearing CYFD seeks to introduce a printout from the FACTS file that contains the following information: [Information entered by SW-1] SW-1 asked Mother when she had last fed and washed the children. Mother stated that I feed them when I have food, but it s been a few days; and I clean them when I feel like it. Assuming a foundation is laid for the admission of this record as a business record, what arguments could Mother s attorney make? How could CYFD respond? How should the court rule?

48 Rule (d)(1)(a) D. Statements that are not Hearsay. A statement that meets the following conditions is not hearsay: (2) An Opposing Party's Statement. The statement is offered against an opposing party and (a) was made by the party in an individual or representative capacity,

49 Scenario No. 5 In the same case as in Scenarios No. 2-4, at the adjudicatory hearing CYFD seeks to introduce a printout from the FACTS file that contains the following information: [Information entered by SW-1] After the children were taken from the home and placed with a foster family, SW-1 spoke to the neighbor, NB, who lived next door to Mother. NB told SW-1 that there was a steady stream of men visiting Mother and that when the men were there, Mother often left the children on the front porch without supervision. NB had seen Mother intoxicated or high on something almost every day. Assuming a foundation is laid for the admission of this record as a business record, what arguments could Mother s attorney make? How could CYFD respond? How should the court rule?

50 NB s statements are hearsay no business duty to report this; probably inadmissible hearsay

51 Scenario No. 6 In the same case as in Scenarios No. 2-5, SW-2 testifies that she has spoken to another neighbor of Mother, NA who told her that over the past few years she had observed Mother with her children on numerous occasions and, in her opinion, Mother is a terrible parent. She has seen Mother strike her children with a belt, and she has often heard Mother screaming obscenities at them loud enough for the entire neighborhood to hear. NA has also seen Mother many times when she was either drunk or high on drugs and acting irrationally. What arguments should Mother s attorney make? How could CYFD respond? How should the court rule?

52 Scenario No. 7 In the same case as in Scenarios No. 2-6, at the adjudicatory hearing, CYFD seeks to introduce evidence that Mother had been arrested for prostitution three weeks after the custody hearing. What arguments should Mother s attorney make? How could CYFD respond? How should the court rule?

53 Scenario No. 8 At the termination of parental rights hearing, CYFD seeks to introduce UA test results that showed Father tested positive for cocaine. They call a supervisor from the lab in California that performed the test and request that the court permit the supervisor to testify telephonically. The supervisor did not personally perform the testing procedure but is familiar with the protocols followed by the lab each time a specimen is tested. He will testify that the records at his lab show that the lab received the specimen from CYFD and that it was labelled as being that of Father. After the test was performed, the technician who performed the test signed a form indicating when the test was performed and that it tested positive for cocaine. This is the only evidence concerning the UA that is offered. What arguments should Father s attorney make? How could CYFD respond? How should the court rule?

54 Scenario No. 9 At a termination of parental rights hearing, CYFD asks the social worker who has worked on the case for over a year: Do you think it would be safe to return the child? Do you think the causes of the abuse and neglect are going to change in the future? What arguments should Father s attorney make? How could CYFD respond? How should the court rule?

55 Scenario No. 10 At a termination of parental rights hearing, CYFD called Dr. Mendez, who was the therapist for the child and other siblings. The court accepted Dr. Mendez as an expert in child psychology. She now testified that she diagnosed the siblings with post-traumatic stress disorder (PTSD) and described the symptoms they suffered. She testified that the siblings had disclosed instances of physical and sexual abuse by Mother, Father, and other people. She described in some detail what the siblings had told her about the incidents. She testified several times that the siblings told her that it was Father who had done these things and stated that, [children] tend to tell the truth. She testified that the siblings were frightened of Father and that they were relieved to find out that that he was in jail. [There is no testimony establishing that the identity of the perpetrator was pertinent to her treatment of the siblings.] What arguments should Father s attorney make? How could CYFD respond? How should the court rule?

56 CYFD v. Victor A., NMCA, No. 32,299 (Oct. 24, 2013) (unpublished opinion)

57 Scenario No. 11 In this abuse case, Father is accused of breaking the arm of C, his one-year-old daughter. The emergency room doctor had called CYFD after observing the spiral fracture of C s arm and after Father was not able to explain what had happened in any way that made sense given the nature of the injury. At the adjudicatory hearing, CYFD calls C s mother to testify to the following: Several weeks before C s arm was broken, after a dispute, Father had taken away C s pacifier and thrown it in the direction of C s crib. Mother did not think that he had intended to hit C. Mother retrieved the pacifier and gave it to C. Mother then walked to a separate room at the end of the house, and Father followed her, grabbed her, and knocked her head into a windowsill. What arguments should Father s attorney make? How could CYFD respond? How should the court rule?

58 Rule (B) B. Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case, the prosecution must (a) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial, and (b) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.

59 Scenario No. 12 Fifteen-year-old, JD, has been charged with possession with intent to distribute cocaine as well as assault on a household member (JD s mother). At the adjudicatory hearing on the delinquency petition, the following evidentiary issues have arisen: Part A The state wants to call Officer P who will testify that when he arrived at the scene, JD s mother told him that JD had gotten angry and punched her in the face when she had accused him of dealing drugs. JD s mother now refuses to come to court and has recanted that statement. What arguments should JD s attorney make? How could the State respond? How should the court rule?

60 Confrontation Clause Crawford v. Washington Testimonial statements are not admissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant concerning the statement.

61 Scenario No. 12 Part B The state wants to introduce the following evidence: (1) A printout of an that JD sent to his friends describing how his mother had confronted him about the coke he had in his backpack and that he had no choice but to set her straight. (2) A printout of JD s Facebook page containing a photograph showing him holding a plastic bag containing what appears to be white powder. What arguments should JD s attorney make? How could the State respond? How should the court rule?

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