Overcoming Hearsay in court

[Peanutsdad]

I also had to introduce many records from social workers, police depts, hospitals.

I HAD to subpeona the " custodian of Records" of EACH place, and in the subpeona clearly state what records were to brought to court.

[SM_in_FL]

So in your experience, did you have to go through alot of legal red tape to get the "custodian of records" into court? What was the outcome? (If you don't mind me asking)

Thanks!
SM

[socrateaser]

>1) Is there any way to overcome this short of going through
>the mission of subpeonaing all the social workers (we're
>talking at least 5 different social workers) and fighting with
>thier in house counsel and whatnot???

Hearsay is an out of court statement made by someone other than the declarant and offered to prove the truth of the matter asserted. You wish to introduce a report by CPS. This report will contain a number of different things -- some of which will be irrefutable facts, such as the fact that there was a report made, on a specific time and place, and concerning a certain parent and child. All of these facts are admissible under the business records hearsay exception, because they were made during the course of employment by a person with a duty to accurately record the events.

The report may contain other statements, i.e., findings and conclusions about the events that took place, rather than the simple fact that the event took place. These statements are the opinion of the reporter, and as such are inadmissible as hearsay without the the witness who made the report being present and available for cross examination, so as to determine the competency and credibility of these statements.

So, it's not the report that you are having a problem introducing, but rather the opinions of the reporter. Thus it is not sufficient to subpoena the custodian of records, because that person is not the reporter, and cannot speak authoritatively about the report. You must have the actual CPS investigator who made the report, in order to offer the entire report into evidence.

I could go on, but you get the idea.

>
>2) One of these reports actually made it to court, does that
>exclude it from being hearsay since there's actual court
>documentation? I don't see us being able to subpeona a
>judge....

If you are saying that a report is admitted into the record of some other legal proceeding, then you can have the record of testimony surrounding that report admitted into evidence at a subsequent legal proceeding, and you can have the findings and conclusions of the court related to that report. However, to get the actual report itself in, you will need the CPS investigator/reporter present to testify -- again.

[Peanutsdad]

In my experience, I went thru the initial bump in the road,, as you did.

I then filed, and had my subpeonas served, and at my continuance, had no further troubles. As I had the custodian testify that the reports offered were in fact true copies of reports with their office, records dept, ect, ect.

Soc , I did not have to have the individual officers appear for the several different police reports,, just the custodian of records,, with a true copy of the records. But then, Texas may be different.

[socrateaser]

It depends on what you're attempting to prove. Ex:

If you're trying to prove the fact that an officer reported seeing a scratch on the child's leg, that's admissible as a business records exception to the hearsay rule, because it only involves the investigator reporting what he/she saw at the time.

But, if you're trying to prove that the child's bruse is the product of abuse, as that is the opinion of the investigator, that is inadmissible, then the reporter most be present to be cross examined, so as to ascertain the credibility and competency of the witness.

The judge, can, of course, allow evidence in over the timely objection of a party, using the "catch-all" exception, that the evidence is more probative than prejudicial, and that no better evidence on the issue is available, but, such admissions are the very thing that is frequently overturned on appeal...as cases were appeal routinely...NOT.

And so forth adn so on.

[SM_in_FL]

1) Ok, so if my argument is the fact that abuse reports were in fact made and all the reports made were similar and not the conclusions of the investigator as to the validity of said reports, then I don't have to subpeona the various investigators? Is that right? (Basically telling the judge that we're not trying to enter into evidence the investigators conclusions, just that the initial report was made and the similarity of all the different allegations)

2) The "business records hearsay exception rule," is that like a federal thing or might it vary from state to state?

3) If it varies could you possibly, pretty please, gimme a hint as to where I should find this rule as it applies to my state? (rules of civil procedure, family rules, etc etc????)

4) What would you do in this situation?

Thanks, Soc!
SM

[Peanutsdad]

LOL, thanx Soc.

Yeah, in my case, appeal isnt real likely.

[socrateaser]

>1) Ok, so if my argument is the fact that abuse reports were
>in fact made and all the reports made were similar and not the
>conclusions of the investigator as to the validity of said
>reports, then I don't have to subpeona the various
>investigators? Is that right? (Basically telling the judge
>that we're not trying to enter into evidence the investigators
>conclusions, just that the initial report was made and the
>similarity of all the different allegations)

a) The fact that the abuse reports were made can be admitted as a business record, it is a legally operative fact, that requires no elaboration (like a credit card receipt -- it is what it is). You don't even need the custodian of records. All you need to do is testify that you received a copy of the entire report from CPS.

b) The fact that the abuse reports are of similar subject matter is a fact that can be identified by a summary of the document, which you can make yourself and testify that you made it. Example:

Your honor, I have highlighted the report's conclusion, which in each occurance is strikingly similar, i.e., that that the child has suffered some sort of harm.

Objection: hearsay, improper opinion.

Your honor, I am not attempting to prove by the report that the conclusion of the reporter is true, and that the child was actually harmed. I am only attempting to show that a number of different reporters, with no particular interest in either of the parties to this case, all have concluded similarly. There is a pattern of independent investigators apparently finding that the child is in distress, from which the court can reasonably infer that the child may be in some distress, and I ask that the court take judicial notice of that pattern of distress in the child.

Judge: OK, I'll allow it on that limited basis, but not as direct proof that the parent who is the subject of the report actually committed any abuse against the child.

End example.

It would be better to have at least one CPS investigator who can discuss the reports and what they generally mean, even if you don't have every investigator.
>
>2) The "business records hearsay exception rule," is that like
>a federal thing or might it vary from state to state?

Every jurisdiction has an exception for business records, otherwise no one could present a receipt or an invoice without subpoenaing the sales person.
>
>3) If it varies could you possibly, pretty please, gimme a
>hint as to where I should find this rule as it applies to my
>state? (rules of civil procedure, family rules, etc etc?)

It doesn vary enough for you to care.

>
>4) What would you do in this situation?

See #2 above.