Testifying 201 CASA Advocacy Skills Seminar December 19, 2012 Charles G. Childress, Attorney at Law We will cover today CASA s right to testify Best Interest and testifying to support your best interest recommendation Some legal stuff Rules of Evidence Hearsay Depositions How to prepare and How to Play the Game Four Handouts 1
When will you have the opportunity to testify? Primarily today, we will be discussing testifying at the final hearing or Merits Hearing Opportunities may present throughout the course of a case during scheduled hearings for testifying as well What gives you the right to testify? Family Code presumes that CASA will be GAL. The court may compel the guardian ad litem to attend a trial or hearing and to testify as necessary for the proper disposition of the suit. 107.002(d). The court shall ensure in a hearing or in a trial on the merits that a guardian ad litem has an opportunity to testify about the best interests of the child; and the bases for the guardian ad litem's recommendations. 107.002(e). See Handout #1 Making Your Voice Heard on Behalf of the Child 2
Are you an Expert Witness? Although the GAL must submit a report and testify about the best interests of the child, you are not an expert witness as that term is normally understood. A judge can rely on the opinion of an expert to find a fact; for example, a parentage testing expert s opinion about paternity is conclusive in most cases. A GAL s testimony that termination was in the child s best interest has been held to be NO EVIDENCE to support the trial court s termination decree. Horvatich V. Texas Department Of Protective And Regulatory Services, 78 S.W.3d 594 (Tex.App. Austin 2002, n.p.h.). Very Important Witness (VIW) on Best Interests of the Child The Family Code makes clear in several different places and several different ways that the CASA/GAL is a VIW. In a nonjury trial, a party may call the guardian ad litem as a witness for the purpose of cross-examination regarding the guardian's report without the guardian ad litem being listed as a witness by a party. If the guardian ad litem is not called as a witness, the court shall permit the guardian ad litem to testify in the narrative. 107.002(f). In a contested case, you must provide copies of your court report to the attorneys in the case at least 10 days before commencement of the trial. 107.002(g). 3
So, What can or should you testify about? Let s begin by talking about some legal issues or terms you may hear about or encounter and the implications for your testimony. Rules of Evidence Hearsay Depositions See Handout #2 What Should a CASA Testify About? See Handout #4 Hearsay, Confidentiality and the CASA Volunteer Subject to the Rules of Evidence Disclosure to the jury of the contents of a guardian ad litem's report to the court is subject to the Texas Rules of Evidence. 107.002(h). Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R.Evid. 801(d). Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. Tex.R.Evid. 802. 4
Common statements which are not hearsay Prior statement of a witness in a prior hearing that is inconsistent with current testimony (to cast doubt on current testimony). Tex.R.Evid. 802(e)(1)(A). Prior statement of a witness in a prior hearing that is consistent with current testimony (to rebut charge of recent fabrication or improper motive). Tex.R.Evid. 802(e)(1)(B). Admission by a party-opponent. Statement made by a party against whom it is offered, or a statement of which the party has manifested an adoption or belief, or a statement made by a person authorized by the party to make a statement concerning the subject. Tex.R.Evid. 802(e)(2)(A),(B)&(C). Deposition Evidence If a deposition has been taken in the case, it can be read to the judge or jury even if the person deposed does not testify. Tex.R.Evid. 802(e)(3). Hearsay within the deposition, may be challenged in the same manner as if the testimony were being heard for the first time at trial. If the deposition statement is hearsay and not made admissible by some rule of evidence, that part of the deposition would have to be struck and not considered by the judge or jury as evidence. The same redaction rule applies to hearsay within CASA reports or CPS documentation. See Handout #3 Discovery and the GAL/CASA 5
Methods of presenting testimony CASA called as a witness. As a friendly witness by the child s AAL. As a friendly witness by the CPS attorney or a parent s attorney. As a hostile witness by an attorney opposed to CASA s position on the child s best interest. As the court s witness. CASA shall be permitted to testify in the narrative if not called as a witness. 107.002(f). The code is unclear if this is permitted or required in a jury trial. Prior CASA court reports are NOT the equivalent of testimony. Getting ready {Preparing to testify} Work out the narrative with the lawyer who plans to call you as a witness if possible. Some lawyers like to have specific questions and seldom vary from script on direct examination. Others prefer to work with an outline of major events. Think of your testimony as if it would be a narrative; generally the best approach is to begin at the beginning, continue until you reach the end, then stop. How will the lawyer know what I know? Can I role play? Can I practice? Can I observe someone testifying? 6
Direct and Cross Examination The lawyer that calls you as his witness - direct examination. Other lawyers involved in the case will most likely ask you questions this is cross examination. The lawyer crossexamining you will want to bring out testimony favorable to his client and cast doubt on statements that are unfavorable to his client. The lawyer that plans to call you as his witness can help you anticipate what questions others may ask. BUT a lawyer can call you as a hostile witness and crossexamine CPS attorneys frequently do this to parents. How to play the game Do not try to anticipate where the lawyer is going with a question. If you attempt to shape your testimony based on how you think the questioning is going or will go, you will damage your own credibility. Answer the question that has been asked, not the question you know the lawyer should have asked. Give yourself time to really understand the question; this is not a race. A pause may also allow one of the lawyers to object sometimes they can protect you from badgering or trickery. 7
Remember your role in the case Each of the lawyers in your case has a client and owes that client undivided loyalty, confidentiality, and competent representation. 107.001(2). Although you are committed to the best interests of the child, you do not represent the child or anyone else in the suit. Your testimony should reflect everything you find out about the child s needs and objectives, the parents efforts or lack thereof, the positive or negative impact of what CPS has done in the case, and any other circumstances that bear on the best interests of the child. Factors in determining Child s best interests In preparing to testify, be sure to review the statutory and case law lists of factors in determining the child s best interest. There are 9 court-developed factors and a much longer list of statutory factors in the Family Code at section 263.307. See Handout #2 Reviewing these factors will help you clarify your thoughts about just how the evidence you gathered supports your best interests position. You will be asked about the factors at least on cross-examination by the party or parties that do not like your conclusions. 8
Final thoughts You will have a much better experience as a witness if you: Make sure you are familiar with the facts of the case and all your prior reports, CPS reports, and other important case file information before you take the stand Take your oath seriously Listen carefully to each question you are asked Marshal your thoughts to give the most accurate and concise answer you can manage Final Thoughts If you are asked a question that can be answered with a yes or no, particularly on cross examination answer it with either yes or no even though you know it paints a distorted picture If the issue is worth addressing, the lawyer who called you as a friendly witness can give you an opportunity to clarify your yes or no answer I have even seen the court step in with questions when nobody else would help clarify the testimony. 9
Questions and discussion 10