Transcript Slide 1

Being the Best Witness
Judge Tom C. Rawlings
Juvenile Courts, Middle Circuit
Sandersville, Georgia
www.tomrawlings.com
[email protected]
Tales from Juvenile Court
&
TOM RAWLINGS
Auditions
Wanted: Qualified Person to:
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Conduct independent assessments of the child’s situation;
Maintain contact with child;
Submit written reports to the court regarding the child’s best
interests;
Attend court hearings and proceedings to advocate for the
child’s best interests;
Advocate for timely hearings to obtain permanency for the child;
Monitor compliance with case plan;
Collaborate with child’s attorney
Review all court-related documents.
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H.B. 270 (2006)
Guy Noir, Private Eye
•Factual testimony depends
on first-hand investigation,
not hearsay.
•Who, What, When, Where,
How, and Why.
• Write it down!
•Don’t let emotions get ahead
of facts.
Assisting the Attorney
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Provide your attorney with a list of witness
names, telephone numbers, addresses and
summary of what the witness knows
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Prepare the attorney with any accusations
previously made or any threats or other
information relevant to the case
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Know the status of related actions in other
courts including bond limitations, sentences
imposed, conditions of release
Taking the Stage
You are telling a story, so tell it like one.
 Yes, you are on stage.
 Let the producers worry about the
technical issues.
 Be concise but thorough.
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Technical Difficulties
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Hearsay:
 What
is it?
 A statement, made out of court, that is
offered in evidence to prove the truth of the
matter stated in the out-of-court statement.
 Huh?
Technical Difficulties
Is it hearsay? There are lots of
exceptions!
 “The case manager told me . . .”
 “The mother told me. . . .”
 “The mother told me the father said. . . .”
 “According to the file, . . .”
 “Their electric bill . . .”
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Technical Difficulties
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Is it hearsay?
 “Their
drug screen came back positive. . . .”
 “According to the medical records, she told
the doctor . . .”
 “The child told me . . .”
Technical Difficulties
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Major Hearsay Exceptions:
 Admission
of a party. OCGA 24-3-31
Technical Difficulties
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Major Hearsay Exceptions: Business Records
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Any writing or record, whether in the form of an entry in
a book or otherwise, made as a memorandum or record
of any act, transaction, occurrence, or event shall be
admissible in evidence in proof of the act, transaction,
occurrence, or event, if the trial judge shall find that it
was made in the regular course of any business and that
it was the regular course of such business to make the
memorandum or record at the time of the act,
transaction, occurrence, or event or within a reasonable
time thereafter.
O.C.G.A. § 24-3-14
Technical Difficulties
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Major Hearsay Exceptions: Res Gestae
 Declarations
accompanying an act, or so
nearly connected therewith in time as to be
free from all suspicion of device or
afterthought, shall be admissible in evidence
as part of the res gestae.
O.C.G.A. § 24-3-3
Technical Difficulties
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Major Hearsay Exceptions: Child Abuse
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A statement made by a child under the age of 14
years describing any act of sexual contact or physical
abuse performed with or on the child by another or
performed with or on another in the presence of the
child is admissible in evidence by the testimony of the
person or persons to whom made if the child is
available to testify in the proceedings and the court
finds that the circumstances of the statement provide
sufficient indicia of reliability.
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O.C.G.A. § 24-3-16
Technical Difficulties
 Drug Tests
 These ARE hearsay, and numerous cases
make one wonder whether you can get them
in without serious expert testimony.
 BUT: Get the parent to sign a waiver
acknowledging they will be used in Court or
get the Judge to order in Court that it be
done.
Your Script: Detention Hearing
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Identify the issues leading to removal
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State why it is not safe for the child to be in the
home
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Explain prior services and efforts to avoid
removal to show reasonable efforts were made
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Provide all information on relatives or significant
adults in the life of the child to explore all
possible placements
Your Script: Detention Hearing
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Informal
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Hearsay is admissible
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Standard of proof is probable cause
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Parties may be more receptive and open than in
subsequent hearings
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Include suggestions for addressing the issues to
orient the parents, counsel and the Court of
what you will seek as part of a case plan if the
Court detains the child
Your Script: Adjudicatory Hearing
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Evidentiary hearing so stick to the facts
and nothing but the facts
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Standard of proof is clear and convincing
evidence
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Hearsay is admissible only if it falls within
the exceptions such as admissions, res
gestae, business records, etc.
Your Script: Disposition
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Create a road map for return of the children
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Limit goals to causes of removal
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Create steps that are clear and measurable
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State who will do what, when and where
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Include phone numbers, addresses and contact
persons for referral to community resources and
providers
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Hearsay is admissible
Your Script: Review
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State what has been completed
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State what remains to be done
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State why any goals and steps were not
completed
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State efforts made to provide services
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State obstacles to completion of any goals and
steps
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Include frequency and quality of visits or other
involvement with the child or children
Your Script: Review
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What is the present status of the child
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Changes in placement
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Reason for changes
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Educational status including credits earned for
high schools students, disciplinary issues, special
education services
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Services received – psychological, medical,
dental
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Needs to be addressed
Your Script: Permanency Hearing
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Has permanency been achieved?
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If not, why not?
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Were reasonable efforts made to achieve
permanency?
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Is there a concurrent plan?
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How and when will permanency be achieved?
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When will the order expire?
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Who will take action and when to address
expiration?
The Ketchup Solution
(i.e., Mellow Out!)
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The Judge is deemed to be
able to separate the sheep
from the goats.
•Therefore, your saying the
wrong thing is likely not
going to cause the case to
be reversed.
The Ketchup Solution
(i.e., Mellow Out!)
OCGA § 15-11-56
(a) In dispositional hearings . . . and in all proceedings
involving custody of a child, all information helpful in
determining the questions presented, including oral and
written reports, may be received by the court and relied upon
to the extent of its probative value even though not otherwise
competent in the hearing on the petition. The parties or their
counsel shall be afforded an opportunity upon request to
examine and controvert written reports so received and to
cross-examine individuals making the reports, except that
portions of such reports not relied on by the court in reaching
its decision which, if revealed, would be prejudicial to the
interests of the child or any party to the proceeding may be
withheld in the court's discretion. Confidential sources of
information need not be disclosed.
But I Forgot My Lines!!!
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A witness may refresh and assist his
memory by the use of any written
instrument or memorandum, provided he
shall finally speak from his recollection
thus refreshed or shall be willing to swear
positively from the paper.
O.C.G.A. § 24-9-69
But I Forgot My Lines!!!
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This Court has held that materials used to
refresh the recollection of a witness for
the State in criminal cases must be
disclosed by the witness upon request.. . .
However, that holding left unchanged in
civil cases the earlier rule, previously
applied in all cases, that a party has no
right to such materials. Schofield v.
Meders, 280 Ga. 865, 870 (Ga. 2006)
Star of the Show
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CASAs can testify as experts.
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“A CASA is not qualified to testify and report simply by
being a CASA, and when an objection is made to
qualifications, the judge must first determine that the
CASA is qualified before accepting testimony or a
report from the CASA. Here, the judge must have had
experience with the local CASA program. The CASA
had been through a CASA training program and had
worked for a period of one year. While the record
could have been made more complete on the point,
we conclude, consistent with the broad discretionary
power given to a trial judge to qualify a witness who
will express an opinion.
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Adoption of Ga., 433 Mass. 62, 68 (Mass. 2000)
Star of the Show
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Foundation for Testifying as An Expert:
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“The requirements for qualification as an expert
witness are minimal; generally, nothing more is
required to qualify an expert than evidence that the
person has been educated in a particular trade,
science, or profession. . . . Formal education or
training in an area of expertise is not necessary,
provided the witness possesses the qualifications of
such area of expertise through skill and experience.
Brown v. State, supra. It is the possession of special
knowledge derived either from experience, study, or
both in a field of expertise that makes one an
"expert."
In the Interest of C.W.D., 232 Ga. App. 200, 207 (Ga.
Ct. App. 1998)
Star of the Show
Foundation for Testifying as An
Expert:
 Background and Education
 Training
 Experience
 Knowledge
 An expert can testify based on
hearsay!
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Watch Out for the Rotten Tomatoes
Cross-examination can be tough.
 Listen to the question. Answer the
Question.
 Don’t Speculate.
 Control Your Emotions
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The News from Lake Wobegon
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For more information, visit us online at
www.tomrawlings.com or email
[email protected]