Being the Best Witness

1. Being the Best Witness Judge Tom C. Rawlings Juvenile Courts, Middle Circuit Sandersville, Georgia www.tomrawlings.com tom@sandersville.net

2. Tales from Juvenile Court & TOM RAWLINGS

3. Auditions Wanted: Qualified Person to: • 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. • H.B. 270 (2006)

4. 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.

5. Assisting the Attorney • Provide your attorney with a list of witness names, telephone numbers, addresses and summary of what the witness knows • Prepare the attorney with any accusations previously made or any threats or other information relevant to the case • Know the status of related actions in other courts including bond limitations, sentences imposed, conditions of release

6. 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.

7. Technical Difficulties • 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?

8. 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 . . .”

9. Technical Difficulties • Is it hearsay? • “Their drug screen came back positive. . . .” • “According to the medical records, she told the doctor . . .” • “The child told me . . .”

10. Technical Difficulties • Major Hearsay Exceptions: • Admission of a party. OCGA 24-3-31

11. Technical Difficulties • Major Hearsay Exceptions: Business Records • 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

12. Technical Difficulties • 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

13. Technical Difficulties • Major Hearsay Exceptions: Child Abuse • 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. • O.C.G.A. § 24-3-16

14. 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.

15. Your Script: Detention Hearing • Identify the issues leading to removal • State why it is not safe for the child to be in the home • Explain prior services and efforts to avoid removal to show reasonable efforts were made • Provide all information on relatives or significant adults in the life of the child to explore all possible placements

16. Your Script: Detention Hearing • Informal • Hearsay is admissible • Standard of proof is probable cause • Parties may be more receptive and open than in subsequent hearings • 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

17. Your Script: Adjudicatory Hearing • Evidentiary hearing so stick to the facts and nothing but the facts • Standard of proof is clear and convincing evidence • Hearsay is admissible only if it falls within the exceptions such as admissions, res gestae, business records, etc.

18. Your Script: Disposition • Create a road map for return of the children • Limit goals to causes of removal • Create steps that are clear and measurable • State who will do what, when and where • Include phone numbers, addresses and contact persons for referral to community resources and providers • Hearsay is admissible

19. Your Script: Review • State what has been completed • State what remains to be done • State why any goals and steps were not completed • State efforts made to provide services • State obstacles to completion of any goals and steps • Include frequency and quality of visits or other involvement with the child or children

20. Your Script: Review • What is the present status of the child • Changes in placement • Reason for changes • Educational status including credits earned for high schools students, disciplinary issues, special education services • Services received – psychological, medical, dental • Needs to be addressed

21. Your Script: Permanency Hearing • Has permanency been achieved? • If not, why not? • Were reasonable efforts made to achieve permanency? • Is there a concurrent plan? • How and when will permanency be achieved? • When will the order expire? • Who will take action and when to address expiration?

23. The Ketchup Solution(i.e., Mellow Out!) • 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.

24. 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.

25. But I Forgot My Lines!!! •  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

26. But I Forgot My Lines!!! •  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)

27. Star of the Show •  CASAs can testify as experts. • “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. • Adoption of Ga., 433 Mass. 62, 68 (Mass. 2000)

28. Star of the Show •  Foundation for Testifying as An Expert: • “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)

29. Star of the Show • Foundation for Testifying as An Expert: • Background and Education • Training • Experience • Knowledge • An expert can testify based on hearsay!

30. Watch Out for the Rotten Tomatoes • Cross-examination can be tough. • Listen to the question. Answer the Question. • Don’t Speculate. • Control Your Emotions

31. The News from Lake Wobegon • Questions, Comments, War Stories, and Your Complaints About Juvenile Court Judges

32. Credits • Sponsored by TLC CASA (mostly pure!) • Special Musical Guests: • Judge Velma Tilley • Judge Peggy Walker • Angela Tanzella • For more information, visit us online at www.tomrawlings.com or email tom@sandersville.net