Evidence 101: Is it in or is it out?

1. Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks to Vicki Davis and the Indiana Judicial Center

2. Small Claims • Your sister-in-law runs a doggie daycare. A client sues her for $450 in small claims court claiming her dog caught an eye infection at daycare. • The crabby client offers a vet bill for $300 without a business records affidavit. • You brilliantly call out “Objection, hearsay”

3. In or Out: Vet Bill w/o Business Record Affidavit? • In • Out • Need More Information • 0

4. Small Claims Vet Bill w/o Affidavit IN!!!! IN Rule 101(c)(2) exempts: "[p]roceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.

5. Momma’s Boy Mother is brought to police station so she can be interviewed about the whereabouts of her adult son on New Year’s Eve. Adult son is arrested for robbery in part based upon Mother’s statement that he was at Joe’s house which happens to be where the robbery occurred.

6. Momma’s Boy (cont.) At trial, the prosecution calls the police officer who interviewed Mother: STATE: Officer what did Mother tell you about her son’s whereabouts? DEFENSE: Objection, Hearsay STATE Judge, Mother is here to testify today...And can be cross examined.

7. Momma’s statement regarding son’s whereabouts? • In • Out • Need more information 0

8. Momma’s Boy OUT Regardless of whether the declarant is available at trial for cross-examination, a hearsay statement is not ordinarily admissible as substantive evidence. Here, the officer's testimony was hearsay and did not qualify under Evidence Rule 801(d) for exclusion from the definition of hearsay or any of the exceptions to the hearsay rule under Evidence Rule 803.

9. Momma’s Boy II What if prior to trial, Defense files motion in limine, outlining the 803 objection. Court denies. At trial, now Defense calls out only “objection” is this enough to preserve for appeal?

10. Is Filing a Motion In Limine and general objection enough to preserve for appeal? • Yes • No • Maybe • 0

11. Good Judgment? • Greta Good Judgment and Freddy Father had a child out of wedlock. Paternity was established in 2007, Greta received sole custody. • Years later, during a custody and support modification hearing, Freddy testifies that Greta is living with a man who has prior conviction for felony battery on a child and supplying alcohol to a minor. In giving Father custody, the judge said she considered a Johnson County protective order Mother had obtained against another man she had recently dated, relating to a felony battery conviction. The Johnson County Protective had not been admitted into evidence.

12. Protective Order: In or Out? • In • Out • Need More Information • 0

13. Good judgment? • In Paternity of P.R. and A.R.; H.B. v. J.R., No. 36A01-1005-JP-255 • 201 (b)   Kinds of Laws. A court may take judicial notice of :(5) records of a court of this state, “Although Mother was not afforded an opportunity to be heard before the court took judicial notice, Rule 201(e) provides that Mother could have made a timely request after judicial notice was taken,” Judge Nancy Vaidik

14. Sugar Bear was juggling knives in the kitchen while his three young children played at his feet. His wife, Mama, was on the phone in the same room talking to her sister Brandi. Mama, while eyeing her husband’s antics, said to her sister, ‘Yes, he’s practicing his juggling right now, using my best set of kitchen knives.’ Just at that moment, Sugar Bear dropped one of the knives on his four-year-old son Cletus. Cletus screamed, ‘Owwww, Sugar Bear cut me!’ Mama shouted, ‘I warned you not to throw knives in the air with all those kids around!’ And Cletus’s sister Honey Boo Boo yawned and commented, ‘Here we go again, Cletus cries every day about something.’ Assume Brandi overheard all of these statements and is called to testify about what she heard. Which of these statements would be admissible for the truth of the matter asserted?

15. In or Out: Mama’s statement to Brandi about the juggling practice? • In • Out • Need More Information • 0

16. Honey Boo Boo Mama’s statement to Brandi about the juggling practice? IN!!!! Ind. Evidence Rule 803(1) – Present Sense Impression

17. In or Out: “Owwww, Sugar Bear cut me!” • In • Out • Need more information 0

18. Honey Boo Boo “Owwww, Sugar Bear cut me!” IN!!!! Ind. Evidence Rule 803(1) – Present Sense Impression and/or Ind. Evidence Rule 803(1) – Excited utterance

19. In or Out: “I warned you not to throw knives in the air with all those kids around!”? • In • Out • Need More Information • 0

20. Honey Boo Boo “I warned you not to throw knives in the air with all those kids around!” IN!!!! As an excited utterance (Rule 803(1) ) OUT!!!! As a present sense impression (Rule 803(2))

21. In or Out: Honey Boo Boo’s statement about her brother? • In • Out • Need More Information • 0

22. Honey Boo Boo Honey Boo Boo’s statement about her brother? OUT!!!!

23. TomKat Tom and Kate have one small child, Suri. They separate, Kate files for divorce in Marion County. During the separation, Kate falls madly in love with Dawson. She’s so blinded by love, however, that she overlooks the fact that Dawson was convicted of two counts of felony neglect regarding his two children in Hendricks County. Dawson’s criminal file contains the charging information, to which a probable cause affidavit is attached. The criminal court file also includes an order accepting Dawson’s guilty plea and the sentencing order. All of the criminal court documents are stamped with “Confidential—Not for Public Access” but are not on green paper. Dawson’s kids were subject to a CHINS action in Hendricks County as well. That court file contains the CHINS petition with an attached affidavit from the intake family case manager.

24. TomKat (cont.) Dawson and his then wife admitted the CHINS, and entered into agreed dispositional orders. All of those documents are contained in the CHINS file. In response to a deposition subpoena, Dawson provides copies of the 310 and 311 completed by the Hendricks County DCS, with an affidavit from the records custodian. One week before trial, Kate tells Tom that she’s broken up with Dawson and will stipulate that he should not be around their kids. However, two days before trial, Dawson is at Kate’s house when Tom returns the kids after parenting time.  The only witnesses Tom calls during the final hearing in his divorce case with Kate are the parties and Dawson. Assume all the court documents are certified.

25. In or Out: The charging information and probable cause affidavit in Dawson’s criminal case? • In • Out • Need More Information • 0

26. TomKat The charging information and probable cause affidavit in Dawson’s criminal case? IN!!!! Ind. Evidence Rule 201. Judicial Notice.(Should at least move to exclude the probable cause affidavit as hearsay since the officer drafting the report is not present.)

27. In or Out: The plea agreement and sentencing order in Dawson’s criminal case? • In • Out • Need More Information • 0

28. TomKat The plea agreement and sentencing order in Dawson’s criminal case? IN!!!! Ind. Evidence Rule 201. Judicial Notice. And Ind. Evidence Rule 803(8). Public Records and Reports.

29. Is the CHINS petition and attached affidavit IN or OUT? • In • Out • Need More Information • 0

30. TomKat The CHINS petition and attached affidavit? IN!!!! Ind. Evidence Rule 201. Judicial Notice. (Should at least move to exclude the affidavit of the FCM as hearsay since the FCM is not present to testify.)

31. The CHINS dispositional orders: IN or OUT? • In • Out • Need More Information • 0

32. TomKat The CHINS dispositional orders? IN!!!! Ind. Evidence Rule 201. Judicial Notice.

33. The 310 and 311?IN or OUT? • In • Out • Need More Information • 0

34. TomKat The 310 and 311: IN OR OUT? OUT!!!! They are not business records and they do not fall under the public records exception (Rule 803(8)(a)). Investigatory reports prepared by government agencies are an exception to the public records hearsay exception.

35. The Experts Three young children experience an unbelievable tragedy when their mother kills their father and then herself. Both parents’ families seek care and custody of the children. The children are enrolled in grief counseling with an LCSW, and the custody court appoints a GAL. The GAL speaks with all relevant individuals, including the LCSW. The GAL timely issues a report and recommendation for custody. The GAL, who participated in mediation and was copied on all settlement letters, also includes in the report a detailed discussion of each party’s settlement offers.

36. The Experts (cont.) Counsel for one of the families seeking custody consults with a PhD psychologist through the course of the case. The psychologist does not interview the children or any party. The psychologist is identified as a potential witness and is deposed based on “hypotheticals.” The GAL, the LCSW and the psychologist all have opinions as to what custodial situation would be best for the kids. All three are scheduled to testify at hearing. One week before trial, counsel for the other family filed a “Motion to Exclude” the psychologist’s testimony in its entirety for lack of personal knowledge.

37. The custody recommendation of the LCSW: IN or OUT? • In • Out • Need More Information • 0

38. The Experts The custody recommendation of the LCSW: IN or OUT? OUT!!!! Guideline 7, Guidelines for Child Custody Evaluations in Family Law Proceedings, American Psychological Association, 2010. Standard 3.06 “Conflict of Interest,” Ethical Principles of Psychologists and Code of Conduct, American Psychological Association. 2010. IC 25-23.6-4-6 Permitted testimony. A social worker licensed under this article may provide factual testimony but may not provide expert testimony.

39. The custody recommendation of the LCSW through the GAL: IN or OUT? • In • Out • Need More Information • 0

40. The Experts The custody recommendation of the LCSW through the GAL: IN or OUT? IN!!!!

41. The GAL report: IN or OUT? • In • Out • Need More Information • 0

42. The Experts The GAL report? NEED MORE INFO…BUT IN IF: Under I.C. 31-17-2-12* * The report will not be excluded so long as:   (c) The court shall mail the investigator's report to counsel and to any party not represented by counsel at least ten (10) days before the hearing. The investigator shall make the following available to counsel and to any party not represented by counsel:        (1) The investigator's file of underlying data and reports.        (2) Complete texts of diagnostic reports made to the investigator under subsection (b).        (3) The names and addresses of all persons whom the investigator has consulted.

43. The custody recommendation of the GAL: • In • Out • Need More Information • 0

44. The Experts The custody recommendation of the GAL? IN!!!!! Under I.C. 31-17-2-12(a)

45. The testimony of the PhD regarding hypotheticals: IN or OUT? • In • Out • Need More Information • 0

46. The Experts The testimony of the PhD regarding hypotheticals? IN!!!!!! Rule 703. Experts may offer opinions based upon “hypotheticals.” See Johnson v. State, 699 N.E.2d 746, 750 (Ind. Ct. App. 1998; Lasater v. Lasater, 809 N.E.2d 380, 395-396 (Ind. Ct. App. 2004).

47. The custody recommendation of the PhD: In or Out? • In • Out • Need More Information • 0

48. The Experts The custody recommendation of the PhD? SHOULD BE OUT!!!! Rule 12.2 “Articulation of the bases for opinions expressed,” and Rule 12.4 “Articulation of Limitations,” Model Standards of Practice for Child Custody Evaluation, Association of Family and Conciliation Courts, 2006. And Standard 3.06 “Conflict of Interest,” Ethical Principles of Psychologists and Code of Conduct, American Psychological Association. 2010.

49. Moneybags, Part I After nearly half a century of marriage, DONALD and IVANNA Moneybags divorced. Ivanna brought this post-dissolution contempt action on the grounds that the Don has not complied with the Decree. During trial, Ivanna offered into evidence certain pay records, which consisted of eighteen pages of computer printouts, to prove that Donald had failed to pay her one-half of his retirement pay. Donald objected to their admission on the grounds that the records were hearsay. Ivanna offered the affidavit of the Custodian of Records of the DFASCC, Betty Budinsky, to lay the foundation for the introduction of Donalds's pay records under either the business records or public records exceptions. Specifically, Ms. Budinsky stated that the printouts were (1) Donald's retirement pay records, (2) made at or near the time of the pay disbursements, (3) made by or from information transmitted by a person with knowledge of the disbursements, (4) kept in the course of regularly conducted activity, and (5) made as a regular practice of the agency.

50. The pay records offered by Ivanna: In OR Out? • In • Out • Need More Information • 0