9. Proving Child Maltreatment in Court
This section applies to both civil and criminal cases. However, some significant differences between the two types of proceedings exist; these differences will be noted throughout the discussion.
The Process of Proving Maltreatment
To succeed in a child maltreatment case, sufficient evidence must be presented to the court to prove that:
- the child has been harmed or threatened with harm; and
- in a civil trial, the parent either inflicted an injury on the child or failed to protect the child from harm; or, in a criminal trial, the defendant was the perpetrator of this harm.
These elements may be proved by direct evidence alone, such as the child victim's testimony; but usually additional evidence, such as expert testimony, is needed to establish the facts to a sufficient degree of certainty.
When the alleged offender asserts some type of defense or extenuating circumstances (e.g., reasonable use of parental discipline), it is his/her burden to establish this defense, and rebuttal evidence then may be introduced.
The Rules of Evidence
Why They Exist
The rules of evidence control what information may be introduced in court to convince the judge to reach a particular decision. Because some types of testimony, documents, and records are less reliable and more prejudicial than others, special evidentiary rules are necessary to allow the judge to consider some evidence in his/her fact-finding process, while excluding other evidence from consideration.
How Evidentiary Rules Affect the Caseworker
Anyone who investigates or gathers facts in a child abuse case should have a general understanding of the rules of evidence. Although in most States few cases in a CPS caseload actually go to court, it is important to treat all investigations as if they might. The manner in which a caseworker should practice (i.e., conduct investigations, take notes, and preserve tangible evidence) is significantly affected by these rules.
Types of Evidence
There are several types of evidence that may be admissible in court. The caseworker should be able to sort out the information contained in his/her case narrative/dictation according to the type of evidence it represents.
- Direct evidence is evidence which is based on personal knowledge or observation; generally, testimony by an eyewitness to an event.
- Real or demonstrative evidence usually takes the form of documents, photographs, or x rays. It is an object (rather than testimony) that is offered to persuade the judge of the facts in question. The rules of evidence require that before real or demonstrative evidence may be presented to the judge, a foundation must be laid that establishes the relevance and authenticity of that object. This is generally accomplished by the testimony of someone who has had control over the object. (See "Getting Records Into Evidence.")
- Circumstantial evidence is often used when no or little direct or real evidence is available; it is indirect evidence from which certain inferences can be drawn. This would include testimony by a neighbor who heard a child crying and an adult shouting, or by a teacher who noticed that the parent often smelled of alcohol and slurred his/her speech. The judge will not take this as absolute proof of abuse or neglect, but together, these details may create a probability that the abuse or neglect occurred. Although circumstantial evidence is the least persuasive type of evidence, it is particularly useful in child abuse cases, where eyewitnesses and clear evidence of inflicted physical injury are rare. Expert witnesses may also provide circumstantial evidence by testifying in court. (See "Expert Testimony.") For example, expert testimony that a child's injuries are inconsistent with the parents' explanations for them may be permitted to infer that the child is, in fact, a battered child.
For example, a caseworker's narrative/dictation on a child abuse investigation might contain the pieces of information listed below.
- A teacher kept a log of the days that the child came to school with bruises.
- A neighbor heard a child's screams.
- A pediatrician reported the case after examining the child and found multiple bruises, both old and new, on his/her back and buttocks. The doctor says that the location, number, and severity of the bruises, as well as the presence of old bruises in the same place, suggest that the child's injuries did not occur accidentally, but rather were intentionally inflicted.
- Medical records.
- Photographs of the bruises taken by a police officer called by the doctor.
- The child said that his/her parent beat him/her with a belt.
- A belt.
A classification of the evidence should look something like this:
- Direct evidence: the child's testimony.
- Real or demonstrative evidence: the teacher's log (supported by his/her testimony); the medical records (supported by the doctor's testimony); the photographs (supported by the officer's testimony); and the belt.
All of this evidence might not be used in court, but caseworkers (aided by their attorneys) will want to sort out and consider it all initially. Once a caseworker has categorized all his/her information, the strengths and weaknesses of the case will become clearer. With the attorney's help, the caseworker may be able to fill in any gaps in the evidence by further investigative work and case preparation.71
Relevant and Material Evidence
To be usable in court, evidence must be material and relevant. Evidence is material when it has a logical connection to any of the issues that need to be proved in the case. It should be clear from a particular State's law exactly what must be proved. For example, whether a parent cheated on his/her income taxes would be immaterial to any issue in a child abuse case. Evidence will be relevant when it increases the likelihood that a particular fact in question occurred. For example, the fact that, prior to the incident in question, the parent failed to provide his/her child with adequate medical care is irrelevant to the question of whether he/she molested that child. Evidence must also be competent. This means that the evidence does not violate any rules of evidence and is not more prejudicial (unfairly harmful or beneficial) than it is probative (tending to prove or disprove) on any given issue.
The Hearsay Rule
Although relevant evidence is generally admissible, some relevant evidence that is thought to be unreliable will be excluded from judicial consideration. One such evidentiary rule is the rule against hearsay. Hearsay is a statement made outside the courtroom that is presented in court by someone other than the original speaker to prove the truth of the original speaker's statement. So, the hearsay rule sometimes prevents a witness from testifying about what another person said. In other situations, because the purpose of repeating the statement in court is not to prove the truth of the statement, hearsay may be admissible.
For instance, a witness would not be permitted to testify that he/she heard another person say "I am the President," to show that that person was, in fact, the President. Such testimony could be used, however, to show that the speaker was mentally unstable. In a child abuse case, it is not uncommon for a witness to be told by the child's teacher, neighbor, or relative that "the child gets beaten up at home all the time." However, because of the hearsay rule, that witness may not testify that "Mr. X told me that the child gets beaten up at home all the time," to prove the abuse. If Mr. X has something to say about the child's home life, the judge will want to hear directly from Mr. X, so that Mr. X can be questioned fully, cross-examined, and observed on the witness stand.
There are a variety of exceptions to the hearsay rule which permit the use of some hearsay in court. The underlying reason for these exceptions is that some hearsay statements, when made under certain circumstances that suggest that they are especially trustworthy, are reliable enough to be used in court. The rule against hearsay is tricky, and sometimes lawyers and judges have difficulty applying it correctly.
The following are among the hearsay exceptions most commonly used in child abuse and neglect cases.
Admissions of a Party
When a person accused of some type of wrongful conduct makes an out-of-court admission, it may be testified to by another under an exception to the hearsay rule. For example, an allegedly abusive parent might confess to an investigating caseworker: "I know I hit her too hard but I won't do it again." Although the parent may deny in court that he/she ever made such a statement, the caseworker would be permitted to recount it under this hearsay exception. The reason for this exception is that an admission is considered reliable hearsay, since an alleged wrongdoer (for example, an abusive parent) has nothing to gain from making up such a damaging statement. In addition, the parent probably would not say something contrary to his/her own interests if it were not true.
An out-of-court statement that is made spontaneously under extreme emotional excitement is also admissible as an exception to the hearsay rule. The excited utterance is viewed as trustworthy because the speaker's excitement is thought to prevent him/her from reflecting long enough to fabricate a story. For example, in a child abuse case, courts will usually look at the length of time between the startling event and the child's statement when deciding whether it is an excited utterance. However, the time lapse alone is not determinative; it is just one factor among many that the court can consider.
Some States apply a more relaxed standard for admitting excited utterances when they are made by children. Very young children, particularly if they are victims of sexual assault, may be found to remain under the influence of the assault for an extended period of time.72 Thus, for example, the statement of a 4-year-old made several hours after he/she was raped may be considered sufficiently reliable to be admitted as an excited utterance, given the child's very young age, the degree of trauma to which he/she was exposed, and the level of excitement under which he/she made his/her statement. However, a court might find that the same statement, made by an adult rape victim, does not qualify as an excited utterance, since an adult (or even an older child) might be capable of reflecting on and fabricating a story during a time lapse of that length. Even when similar statements are made by children of similar ages and under similar circumstances, courts in different States vary widely as to what they will consider an excited utterance by a child.
What Records Are Admissible?
Regularly kept records fall into another hearsay exception. Although records are technically hearsay because they contain second-hand information, their contents will be considered reliable and therefore admissible when they are kept regularly, systematically, and routinely. It is this regularity of the record-keeping process by persons with a duty to supply accurate data that ensures trustworthiness. This foundation is generally established in court by the testimony of the recorder, or even by the clerk or records custodian, depending on the nature of the record in question. This exception applies to both business records, such as hospital and medical records, and official records, such as police reports, social services casework files, and school records.
Particularly in cases of child maltreatment, in which the content of a caseworker's file is often essential for a successful court case, the manner in which these files are maintained is important. Case records will not be admitted under the records exception to the hearsay rule unless the judge is convinced that they are accurate. Thus, a caseworker's dictation/narrative/ progress notes should be detailed and thorough. The facts recorded must be either based on the caseworker's personal knowledge or he/she must have had a duty to verify the truth of those facts. However, not everything in dictation/narrative/progress notes may be admissible in court. Opinions and conclusions may be excluded, so the caseworker should use only facts.
Getting Records Into Evidence
The attorney who seeks to use a document or record as evidence in court must (if opposing counsel or the judge insists upon it) establish its authenticity, i.e., that the document is actually what it is claimed to be. This may be accomplished by:
- testimony of any witness who knows that the document is what it appears to be or who is familiar with the handwriting on the document;
- testimony of an expert witness that the document is consistent with other documents that have already been authenticated in that case; and
- comparison by the judge or jury of the document with already authenticated documents.
Statements Made for the Purpose of Diagnosis or Treatment
Out-of-court statements made to doctors and other medical personnel may be used in court if they are made for the purpose of diagnosis or treatment and concern a current medical condition. In some States, this exception could extend to a patient's description of past symptoms and even to the cause of the patient's injury and the identity of the perpetrator. For example, a child's report of abuse to a doctor, including his/her description of details and sometimes his/her identification of the abuser, might be admitted in a child abuse case. The rationale for this exception is that patients are generally truthful when their health is at stake, because they seek the most appropriate medical care possible.
However, when an out-of-court statement is made to medical personnel expressly for litigation purposes, this rationale does not apply. Thus, statements made to a doctor in the context of a court-ordered evaluation, for example, are not admissible under the medical diagnosis/treatment hearsay exception.
The Residual Exception
In many States, courts are given the discretion to allow the use of hearsay statements that do not fit precisely into a traditional hearsay exception. This catch-all or residual exception permits the admission of hearsay, in the interests of justice, which has circumstantial guarantees of trustworthiness. Some common guarantees of trustworthiness include:
- spontaneity of the statement;
- degree of certainty expressed by child;
- child's age, intelligence, and maturity level;
- child's use of age-appropriate terminology;
- nature of statement's details, which are outside the normal experiences of a child that age;
- lack of motive to lie; and
- statement not elicited by leading questions.73
Nevertheless, some hearsay that could be properly admitted under a State's residual exception may not be allowed in criminal cases because it violates the confrontation clause of the Constitution. The confrontation clause gives criminal defendants the right to face and challenge their accusers in court. When, instead of in-court testimony by the child victim in person, his/her accusatory statements are repeated in court by someone else, the defendant does not technically get to face his/her accuser. The defendant cannot see the child (and the child is not forced to see the defendant), and the defense lawyer does not get a chance to cross-examine the child. Because of this, the Supreme Court has imposed some conditions on allowing hearsay statements into court.
Under the recently decided Wright74 case, a hearsay statement that does not fall within one of the traditional hearsay exceptions (but is admitted under the residual exception instead), must be found by a judge to be more reliable than other admissible hearsay. Courts must look at the totality of the circumstances that surround the making of the statement in order to determine whether that statement is sufficiently trustworthy to protect an accused abuser's constitutional rights under the confrontation clause. In other words, courts will consider all of the indications of trustworthiness that are present for a given statement, including those listed above, but no one factor should disqualify a child's statement on its own.
Special Statutory Exceptions for Child Sexual/Physical Abuse Victims
In recent years, many States have created, by statute, special exceptions to the hearsay rule especially for out-of-court statements made by a child victim of sexual and physical abuse. This is particularly necessary when the child's hearsay statements do not fall within an existing exception. Although the wording of these special exceptions varies from State to State, they all require that the child be found unavailable to testify in court and that his/her statements be particularly trustworthy. A child's unavailability need not be literal; he/she may be deemed unavailable to testify under these exceptions if he/she would be traumatized by testifying in court. Judges will generally require that evidence (often expert testimony) be presented to show that a child's in-court testimony would cause him/her harm.
The special hearsay exception for child abuse victims is a significant evidentiary reform. It rejects the notion that a child's complaints of abuse are inherently suspect and that they require strict corroboration by additional evidence. The Supreme Court has recognized that the trustworthiness of a child's hearsay statement depends on all of the circumstances surrounding that statement rather than a set of rigid preconditions.75 Perhaps more important, this special exception recognizes the unique need in a child abuse case for allowing the victim's statements to be used, since in most of these cases, there are no eyewitnesses to the abuse, nor are there usually observable physical injuries to the child.
Statements made to doctors, lawyers, and others in their professional capacity are generally considered privileged and cannot be disclosed in court, unless the patient or client consents to such disclosure. The purpose of this legal rule is to encourage those who seek professional assistance to communicate freely and openly with their service providers without fear of public exposure or legal repercussions.
The scope of these privileges and the particular professional relationships to which they apply varies. In some States, privileges are abrogated by statute in child protection proceedings. In addition, all States have abuse reporting laws that mandate the reporting of suspected child abuse, often even when the reporter's suspicion originates from privileged communications (although lawyers are not usually mandated reporters).
Conversations between husbands and wives are also privileged in most types of cases, which sometimes prevents one spouse from testifying against another. However, in a case alleging child maltreatment, this privilege is generally not applied. Any abuse or neglect is deemed to have already destroyed the family harmony the privilege was designed to protect; moreover, the safety of a child is at stake.
Opinion testimony by a person deemed by the court to be an expert is generally permitted. The admissibility of expert testimony depends on four factors:
- whether the subject matter of the testimony is outside the average judge's or jury's knowledge or experience;
- whether the state of the art of that field permits an expert opinion;
- whether the witness qualifies as an expert on that subject matter; and
- whether the basis of the expert's opinion is reasonably reliable.
The nature of child abuse and neglect has been found by many courts to be unfamiliar to the average person. Accordingly, expert testimony on the subject of child abuse or neglect may be allowed by some courts to explain a child's behavioral patterns and to interpret physical injuries.
When a party to the case intends to call an expert witness to give opinion testimony, the attorney for that party will question the witness in order to establish that he/she qualifies as an expert. The opposing party then has the opportunity to cross-examine that witness to test whether the expert is in fact qualified to testify as such. This process, known as voir dire, inquires into the witness' credentials, including formal education, practical experience, training, familiarity with authoritative literature in the field, and reputation in the field. A witness will qualify as an expert if he/she has sufficient experience, training, skill, or knowledge with respect to the particular subject matter to which the testimony relates. Courts may be less impressed with the witness' title or degree than with his/her actual familiarity with the subject and ability to assist the court in reaching its decision. No one factor will qualify or disqualify a witness as an expert. Judges usually base this decision on whether the witness' credentials, as a whole, make his/her opinions helpful to the fact-finding process.
Even when the witness is not an expert, he/she may be permitted to express his/her opinion about conditions that are commonly experienced by the average person (e.g., "the child seemed frightened" or "the child acted angry"). The decision of whether to admit opinion testimony by a lay witness is discretionary with the trial judge. It generally is decided based on whether the testimony is likely to be helpful to the fact-finding process.
Scope of Permissible Expert Testimony
The basis of an expert's opinion must be information of a kind that is relied upon by other experts in the same field. An expert may neither give an opinion based on speculation or guessing, nor based on novel scientific principles.76
An expert witness may (depending on the State) be permitted to corroborate a claim of child abuse by testifying that the alleged victim's psychological and behavioral patterns are similar to those of other children known to have been abused, whom the expert has examined. Again, depending on the State, expert testimony regarding syndromes may also be allowed. Such testimony involves the expert's description of a cluster of factors that have been identified with child abuse and have become known, collectively, as a syndrome. The witness (or another witness) will then explain how the child's condition is consistent with these factors. Some syndromes commonly raised in child abuse and neglect cases are described below.
- Battered child syndrome describes a pattern of injuries generally found to indicate physical child abuse.
- Failure to thrive syndrome describes a growth rate in an infant that is subnormal or departs from an established pattern. When failure to thrive is not caused organically (i.e., from biological causes), it is associated with child neglect.
- Child sexual abuse syndrome describes common characteristics or behavior patterns found in sexually abused children.
- Child sexual abuse accommodation syndrome describes a victim's response to sexual abuse by accommodation, delayed reporting, and recantation.
- Munchausen syndrome by proxy describes characteristics in a parent who, in order to have his/her child subjected to repeated and possibly harmful medical procedures, fabricates a child's medical history, tampers with a child's laboratory tests, or actually causes a child's health problem.
(The last two syndromes listed above are still the subject of significant controversy.)
While some courts allow syndrome testimony about child victims, expert testimony that the alleged perpetrator has certain traits that conform to the profile of a child abuser is not generally permitted and never permitted in criminal cases.
There are certain rules that limit the scope of an expert's testimony. An expert will rarely be permitted to testify, for example, that he/she believes the child is telling the truth about the alleged abuse, even after the child's truthfulness has been attacked in court. It is the exclusive function of the judge or jury to evaluate the credibility of witnesses. In addition, particularly in criminal cases, most States still prohibit expert testimony as to the ultimate issue (i.e., whether the child was, in fact, abused), since this too is considered within the role of the judge or jury alone.
Generally, character witnesses are not permitted in court. However, the judge has the discretion to allow the alleged abuser to present evidence concerning a pertinent trait of his/her own character or of the character of the victim. Character evidence regarding either the abuser or the victim may only be used by the petitioner or prosecutor as rebuttal if the issue of character was already raised by the defendant.
When character evidence is allowed by the judge, it may only relate to the general reputation of the subject of the testimony. For example, an allegedly abusive mother might be permitted to introduce testimony by her neighbor that she is a protective mother who is gentle with her children. A character witness may not testify to specific good or bad acts performed by the accused or the victim on direct examination unless character is an element of the case. Thus, the neighbor/witness above could not ordinarily recount the mother's numerous acts of generosity and kindness. Once that witness has testified, however, specific acts may be inquired about on cross-examination.
Prior Acts Evidence
Evidence of misconduct by the defendant that occurred prior to the abuse alleged in court occasionally may be admissible. Such evidence, which may take the form of a previous criminal conviction or testimony that the defendant committed certain bad acts, is often objected to by the defendant's attorney as prejudicial. However, sometimes past conduct is so similar or related to the maltreatment alleged that it may be admitted by the judge to show that the abuser had an overall plan to abuse, a motive to abuse, or the intent to abuse. Bad acts committed in the distant past may not ordinarily be used to show that the parent probably committed the abuse currently in question. For example, when a father is being tried for the sexual abuse of his 4-year-old daughter, evidence that he had molested another of his children might be allowed to show that the more recent incident was a part of the father's plan or that it was intentional. However, evidence that he had sexually assaulted a coworker 15 years before would probably not be admissible, since it is not sufficiently similar or related to the abuse of his young daughter to reveal his plan, motive, or intent.
Evidence of any fact will be allowed in court if the opposing party stipulates to (admits) its truth. Only evidence of disputed facts will be subject to exclusion under the rules of evidence.
Rules of Evidence and the Nonlegal Professional
Obviously, the rules of evidence are complicated and the nonlegal professional will not need to know all of them. Even lawyers, with their years of specialized legal training and experience, cannot always predict which evidence will be allowed by a particular judge. The caseworker's job is to provide the lawyer with all of the information in his/her possession before the hearing, allowing the lawyer and the judge to worry about technical evidentiary questions. It is important to remember that while caseworkers are not ultimately responsible for choosing evidence, the more they know about the rules of evidence, the more they will understand and be able to prepare a case.
How Much Evidence Is Required?
The amount of evidence required in a hearing is called the standard or burden of proof. These standards vary, depending on the type of proceeding.
At a shelter care or temporary removal hearing, the standard of proof is usually probable cause. Probable cause means that the judge has enough evidence to create the probability in his/her mind that the child would be in significant danger if he/she remains home until the case is tried. If the judge thinks there is a real chance that the child will be hurt if returned home, this standard allows him/her to place the child in shelter care.
In most States, civil adjudicatory hearings generally apply the preponderance of the evidence standard. The preponderance standard requires that there be more evidence in favor of the abuse or neglect than against it. A commonly used illustration of this concept is "tipping the scales." If the scales tip slightly to one side, there is a preponderance of evidence on that side. Or if 51 percent of the evidence presented in court favors one side of the case, then that side of the case has been established by a preponderance of the evidence.
A burden of proof that is higher than the usual civil preponderance standard is used in some States for civil adjudications and in almost all States for termination of parental rights hearings. This burden of proof is clear and convincing evidence. Clear and convincing evidence is present when almost all of the judge's doubts have been resolved.
Finally, criminal courts will not find an accused person guilty unless his/her guilt has been proved beyond a reasonable doubt. Because it is so difficult to eliminate all reasonable doubts in the mind of a judge or jury, this standard of proof makes criminal cases the hardest type to win.
Although a specified amount of evidence is required for one side or the other to prevail, this does not mean that a certain number of witnesses or other pieces of evidence are required. Rather, the burden or standard of proof refers to the degree of certainty created in the mind(s) of the trier(s)-of-fact based on the persuasiveness of the evidence. For example, a party might satisfy his/her burden of proof by presenting just two convincing witnesses, even if his/her opponent has presented many more.
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