October 3, 2008 CBA CLE Seminar

1. October 3, 2008 CBA CLE Seminar Southeastern Connecticut Center for Juvenile Justice, Inc. SECCJJ, Inc., is funded by the Commission on Child Protection and the Office of the Chief Child Protection Attorney

2. Rules of Evidence in Child Protection Cases They really DO exist!!! Southeastern Connecticut Center for Juvenile Justice, Inc. Michael F. Miller 132 Boston Post Road, East Lyme, CT 06333 (tel) 860.739.8887 (fax) 860.739.6987 October 3,2008 – CLE Seminar

3. Your Objection is…?

4. Topics for Discussion • Overview—How relaxed are the rules? • Hearsay • Adjudication vs. Disposition • Mandated Reporter Exception • Tender Years Exception—THIS COULD BE BIG!! • Residual Hearsay Exception • Just how hard is a hearsay challenge on appeal? • Social Studies-- “The Times They Are A Changing” • Changes coming 1.1.09! • Business Records

5. Overview • Overview—How relaxed are the rules? • Hearsay • Adjudication vs. Disposition • Mandated Reporter Exception • Tender Years Exception—THIS COULD BE BIG!! • Residual Hearsay Exception • Just how hard is a hearsay challenge on appeal? • Social Studies-- “The Times They Are A Changing” • Changes coming 1.1.09! • Business Records

6. Hearsay • Overview—How relaxed are the rules? • Hearsay • Adjudication vs. Disposition • Mandated Reporter Exception • Tender Years Exception—THIS COULD BE BIG!! • Residual Hearsay Exception • Just how hard is a hearsay challenge on appeal? • Social Studies-- “The Times They Are A Changing” • Changes coming 1.1.09! • Business Records

7. Defining Hearsay - Sec. 8-1 • ‘‘Statement’’ means • an oral or written assertion or • nonverbal conduct of a person, if it is intended by the person as an assertion. • ‘‘Declarant’’ means • a person who makes a statement • ‘‘Hearsay’’ means • a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.

8. Hearsay Rule – Sec. 8-2 Hearsay is inadmissible, except as provided in the Code, the General Statutes or the Practice Book.

9. Hearsay - Adjudication vs. Disposition • P.B. 35a-7 (a) Evidence In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights • Sec. 35a-9. Dispositional Hearing; Evidence and Social Study The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing, but no disposition may be made by the judicial authority until any mandated social study has been submitted to the judicial authority. Said study shall be marked as an exhibit subject to the right of any party to require that the author, if available, appear for cross-examination.

10. Hearsay - Adjudication vs. Disposition P.B. 35a-7 (b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded

11. Hearsay--Keeping evidence outShould the case be bifurcated? TPR Neglect Mathews v. Eldridge 424 US 319 (1976) In re Deana E. 61 Conn App 19 (2000) In re Jennifer W. 75 Conn App 485 (2003) Due process rights protected by C.G.S. 17a-112 (c) requiring clear and convincing evidence in the adjudicatory phase of a TPR trial and P.B. states that the bifurcation issue is discretionary. Good luck !! In re Nagies W. 2008 (Waterford) “Subsequently, it was agreed to bifurcate the proceeding and try the issue of the adjudication only. The trial was held on March 31, 2008. Both parents attended the trial. The department presented one witness, the department's investigative worker. Mother presented two witnesses, herself and her own mother (hereinafter "maternal grandmother"). The department alleges that Nagies was neglected in that she was being permitted to live under conditions, circumstances or associations injurious to her well-being. Evidence as to the adjudicatory phase of this claim is limited to events preceding the date of the petition. P.B. §35a-7(a). “ Better chance for bifurcation-consider coming to an agreement on disposition.

12. Hearsay—Mandated Reporter ExceptionC.G.S. 46b-129 (g) • Credible hearsay evidence regarding statements of the child or youth made to a mandated reporter or to a parent may be admitted by the court • reliable, trustworthy and admission is reasonably necessary. • A signed statement executed by a mandated reporter under oath may be admitted by the court without the need for the mandated reporter to appear and testify unless called by a respondent or the child, provided the statement: • was provided at the preliminary hearing and promptly upon request to any counsel appearing after the preliminary hearing; • reasonably describes the qualifications of the reporter and the nature of his contact with the child; • contains only the direct observations of the reporter, and statements made to the reporter that would be admissible if the reporter were to testify to them in court and any opinions reasonably based thereupon.

13. Hearsay - OTC Strategy Petitioner’s evidence Response to Petitioner’s evidence • Social Worker Affidavit • Police Report • Criminal Background Checks • Redact for hearsay/relevance and object to during testimony • Object unless police officer testifies. Redact hearsay/relevance • Certified copy…but Sec.6-7

14. Hearsay - Criminal Record Sec. 6-7. Evidence of Conviction of Crime (a) General rule. For the purpose of impeaching the credibility of a witness, evidence that a witness has been convicted of a crime is admissible if the crime was punishable by imprisonment for more than one year. In determining whether to admit evidence of a conviction, the court shall consider: (1) The extent of the prejudice likely to arise, (2) the significance of the particular crime in indicating untruthfulness, and (3) the remoteness in time of the conviction. (b) Methods of proof. Evidence that a witness has been convicted of a crime may be introduced by the following methods: (1) Examination of the witness as to the conviction, or (2) introduction of a certified copy of the record of conviction into evidence, after the witness has been identified as the person named in the record. • If parent does not testify, should any evidence of prior crimes come in? • If parent does testify, what is the import of evidence rule 6.7? • Does it come in for disposition only?

15. Hearsay Exception - Tender years 8 -1 0 . Hearsay Exception: Tender Y ears (NEW ) (NEW ) Sec. 8 -1 0 . Hearsay Exception: Tender Y ears (a) A statement made by a child, twelve years of age or under at the time of the statement, concerning any alleged act of sexual assault or other sexual misconduct of which the child is the alleged victim , or any alleged act of physical abuse committed against the child by the child’s parent, guardian or any other person then exercising com parable authority over the child at the time of the act, is admissible in evidence in criminal and juvenile proceedings if: (1 ) The court finds, in a hearing conducted outside the presence of the jury, that the circum stances of the statement, including its timing and content, provide particularized guarantees of its trustworthiness; (2 ) The statement w as not made in preparation for a legal proceeding; and (3 ) The child either: (A) Testifies and is subject to cross-examination in the proceeding, either by appearing at the proceeding in person or by video telecommunication or by submitting to a recorded video deposition for that purpose; or (B) Is unavailable as a witness, provided that: (i) There is independent corroborative evidence of the alleged act. Independent corroboration does not include hearsay admitted pursuant to this section; and (ii) The statement was made prior to the defendant’s arrest or institution of juvenile proceedings in connection with the act described in the statement. (b) A statement m ay not be admitted under this section unless the proponent of the statement makes know n to the adverse party his or her intention to offer the statement, the content of the statement, the approximate time, date, and location of the statement, the person to whom the statement w as made, and the circumstances surrounding the statement that indicate its trustworthiness. If the statement is in writing, the proponent must provide the adverse party a copy of the writing; if the statement is otherwise recorded by audiotape, videotape, or some other equally reliable medium, the proponent must provide the adverse party a copy in the medium in the possession of the proponent in which the statement will be proffered. Except for good cause shown, notice and a copy must be given sufficiently in advance of the proceeding to provide the adverse party with a fair opportunity to prepare to meet the statement. (c) This section does not prevent admission of any statement under another hearsay exception. Courts, how ever, are prohibited from: (1 ) applying broader definitions in other hearsay exceptions for statements made by children twelve years of age or under at the time of the statement concerning any alleged act described in the first paragraph of section (a) than they do for other declarants; and (2 ) admitting by w ay of a residual hearsay exception statements described in the first paragraph of section (a). C O M M EN T A R Y : This section addresses the unique and limited area of statements made by children concerning alleged acts of sexual assault or other sexual misconduct against the child, or other alleged acts of physical abuse against the child by a parent, guardian or other person with like authority over the child at the time of the alleged act. It recognizes that children, because of their vulnerability and psychological makeup, are not as likely as adults to exclaim spontaneously about such events, making section 8 -3 (2 ) unavailable to admit statements about such events; are not as likely to seek or receive timely medical diagnoses or treatment after such………………………………..

16. Hearsay Exception - Tender years 8 -1 0 . Hearsay Exception: Tender Y ears (NEW ) (NEW ) Sec. 8 -1 0 . Hearsay Exception: Tender Y ears (a) A statement made by a child, twelve years of age or under at the time of the statement, concerning any alleged act of sexual assault or other sexual misconduct of which the child is the alleged victim , or any alleged act of physical abuse committed against the child by the child’s parent, guardian or any other person then exercising com parable authority over the child at the time of the act, is admissible in evidence in criminal and juvenile proceedings if: (1 ) The court finds, in a hearing conducted outside the presence of the jury, that the circum stances of the statement, including its timing and content, provide particularized guarantees of its trustworthiness; (2 ) The statement w as not made in preparation for a legal proceeding; and (3 ) The child either: (A) Testifies and is subject to cross-examination in the proceeding, either by appearing at the proceeding in person or by video telecommunication or by submitting to a recorded video deposition for that purpose; or (B) Is unavailable as a witness, provided that: (i) There is independent corroborative evidence of the alleged act. Independent corroboration does not include hearsay admitted pursuant to this section; and (ii) The statement was made prior to the defendant’s arrest or institution of juvenile proceedings in connection with the act described in the statement. (b) A statement m ay not be admitted under this section unless the proponent of the statement makes know n to the adverse party his or her intention to offer the statement, the What does it all mean?? content of the statement, the approximate time, date, and location of the statement, the person to whom the statement w as made, and the circumstances surrounding the statement that indicate its trustworthiness. If the statement is in writing, the proponent must provide the adverse party a copy of the writing; if the statement is otherwise recorded by audiotape, videotape, or some other equally reliable medium, the proponent must provide the adverse party a copy in the medium in the possession of the proponent in which the statement will be proffered. Except for good cause shown, notice and a copy must be given sufficiently in advance of the proceeding to provide the adverse party with a fair opportunity to prepare to meet the statement. (c) This section does not prevent admission of any statement under another hearsay exception. Courts, how ever, are prohibited from: (1 ) applying broader definitions in other hearsay exceptions for statements made by children twelve years of age or under at the time of the statement concerning any alleged act described in the first paragraph of section (a) than they do for other declarants; and (2 ) admitting by w ay of a residual hearsay exception statements described in the first paragraph of section (a). C O M M EN T A R Y : This section addresses the unique and limited area of statements made by children concerning alleged acts of sexual assault or other sexual misconduct against the child, or other alleged acts of physical abuse against the child by a parent, guardian or other person with like authority over the child at the time of the alleged act. It recognizes that children, because of their vulnerability and psychological makeup, are not as likely as adults to exclaim spontaneously about such events, making section 8 -3 (2 ) unavailable to admit statements about such events; are not as likely to seek or receive timely medical diagnoses or treatment after such………………………………..

17. Hearsay Exception - Tender Years • Effective 1.1.09, Statement of child IS Admissible in Evidence, if… • Applicable to Children 12 years and under • Child is victim • Sexual assault/misconduct or • ANY physical abuse • Committed by parent/guardian or other person with comparable authority • AND……………

18. Tender Years Exception - Caveats • Court finds statement is trustworthy • Statement is not made in preparation of litigation AND… • Child testifies and is subject to cross either by appearance or video OR… • Child is unavailable BUT…There is independent corroboration AND statement made before arrest or juvenile charges commenced

19. Tender Years ExceptionHow will it impact juvenile court proceedings? • In every case, doesn’t the court allow statements of the children to come in? • This appears to limit statements that are routinely found in Social Studies, Status Reports, etc. • It does not appear to aid children if intent was to have them not appear and testify against parent/guardian.

20. Hearsay - Residual Exception Sec. 8-9. Residual Exception A statement that is not admissible under any of the foregoing exceptions is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.

21. Hearsay Residual Exception • OBJECT every time petitioner attempts to use • Cannot use Residual Hearsay if Tender Years exception does not work

22. Hearsay Just how hard is a hearsay challenge on appeal? • Standard of Review for rulings on admissibility of evidence is ordinarily “Abuse of Discretion” In re Lauren, 49 Conn. App. 763 (1998) • A hearsay challenge is a claim of erroneous evidentiary ruling and as such does not implicate the constitution. State v. Walsh, 52 Conn. App. 708 (1999)

23. Hearsay Challenge • Even if admission of hearsay was improper, must also establish that the ruling was improper and likely to affect result of the trial In re Latifa K. , 67 Conn. App. 742 (2002) • Judgment need not be reversed merely because inadmissible evidence has been admitted, if permissible evidence to the same effect has been placed before the trier of fact State v. Walsh

24. Hearsay Challenge • If an objection to hearsay is not made at trial but is appealed…feggeddaboutit. State v. Golding, 213 Conn 233 (1989) Essentially, must argue a constitutional claim and courts have generally stated hearsay objections do not trigger these claims

25. Hearsay-A Successful Appeal • In re Stacy G.,94 Conn. App. 348 (2006) • Essentially, court took judicial notice of psychological evaluations (3 reports), no live witness to cross, and stated that it read the reports prior to rendering an opinion. • Appellate Court held: Admission of reports was improper. Reports in addition to being hearsay, also contained inadmissible hearsay from other individuals who were not the respondent or author. • Also, “we recognize…that reports, (like these) may find there way (improperly) into the court file particularly in family and juvenile cases. Does not entitle judge to take judicial notice of them.”

26. Judicial Notice How many times have you heard an AAG say? Code of Evidence 2.1 “Your honor, the state would like you to take judicial notice of the Neglect File.” Or “…judicial notice of a status report filed the day of trial” Or “…psychological report from a prior case” • Can only take notice of facts • That are NOT subject to reasonable dispute • Fact must “be within knowledge of people generally in ordinary course of human experience, or • Generally accepted as true and capable of ready and unquestionable demonstration

27. Adverse Inference (NEW) 35a-7B. Adverse Inference If a party requests that the judicial authority draw an adverse inference from a parents or guardians failure to testify or the judicial authority intends to draw an adverse inference, either at the start of any trial or after the close of the petitioners case in chief, the judicial authority shall notify the parents or guardian that an adverse inference may be drawn from their failure to testify. COMMENTARY: If an adverse inference is not requested, hearing the warning at the start of every trial may compel a parent or guardian to testify in every case, even w here an adverse inference is not being requested. In re: Samantha C ., 268 Conn. 614, 666-73 (2004) permits the judicial authority to take an adverse inference from a party’s failure to testify provided the party is given fair warning of that possibility.

28. Social Study Change effective 01.01.09 Sec. 35a-9 . Dispositional Hearing; Evidence and Social Study The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing, but no disposition may be made by the judicial authority until any mandated social study has been submitted to the judicial authority. Said study shall be marked as an exhibit subject to the right of any party to be heard on a motion in limine requesting redactions and to require that the author, if available, appear for cross-examination. COMMENTARY : The revision to this section reflects existing practice and makes clear that social studies may contain objectionable material that the opposing party should be able to challenge prior to admission into evidence.

29. Social Study - When does it come in? • Adjudication and Disposition: Social Study by statute should only be for dispositional purposes • Shall be marked as an exhibit • Subject to motion in limine requesting redactions • May require author to be present for cross examination (if available)

30. Social Study - Is it really a change? • Sends clear signal that they do not automatically come in as full without objection • No requirement that author be available In Re Eduardo F. (J. Foley) (1996) no author, no report. Don’t rely on except for argument • Can judge really disregard what was in the report after a successful motion? Can motion judge also be trial judge? (combine motion in limine with judicial pre trial)

31. Business RecordsAnother exception to hearsay How many times have you seen the following documents come into evidence under the Business Records exception by the testimony of a social worker because it was in the DCF file? • SAE reports • Police reports • Therapy reports • School records • Discharge summaries? Well, they shouldn’t come in! (that way)

32. Business Records - Evidence Rule 8-4 Foundation Must be Laid: • Writing must be in the regular course of business; • It must be in the regular course of business to make the writing; and • Writing must be made at the time when the act, transaction or event occurred or within reasonable time thereafter.

33. Business Records - Caveats • Authenticating witness need not be author or in the employ of business at time it was made • Witness need not know the exact time record was made • It is possible that witness may not know anything that is contained in the record so cross examination may be limited • Statute should be liberally construed as intent is to recognize trustworthiness of documents created for a business purpose and not for litigation • Although admissible, object to portions that are not relevant or contain third party hearsay

34. That was a logical, coherent, well thought out objection…OVERRULED!

35. October 3, 2008 CBA CLE Seminar Southeastern Connecticut Center for Juvenile Justice, Inc. SECCJJ, Inc., is funded by the Commission on Child Protection and the Office of the Chief Child Protection Attorney