SC Lawyer, May 2004, #3. Beyond the Bar May 2004 The corpus evidentia in family court.

• Author: By Warren Mo\xEFse

South Carolina Lawyer

2004.

SC Lawyer, May 2004, #3.

Beyond the Bar May 2004 The corpus evidentia in family court

South Carolina LawyerMay 2004Beyond the Bar May 2004 The corpus evidentia in family courtBy Warren MoïseYears ago, my brother Ben and I were in a rural county putting on an oyster roast. A local magistrate attended. Talk turned to the law, and the magistrate declared that he held family court in the yard of his garage. He sometimes divorced people on Friday afternoons. When Sunday came, they usually were remorseful, and so he remarried them. I was just a law student, but that sounded fishy. I expressed doubt to his honor whether he could legally divorce people. He admitted that no, he couldn't. However, he said, "You know that, and I know that, but they don't know that."

Many lawyers see procedure in family court as less strict than in other venues. Is there a separate corpus evidentia, or body of evidence, for these courts where some of our society's most important decisions are made? To answer this question, one must first look at the history of the courts themselves.

What goes up, must come down?

Women had severe limitations upon their legal rights under the common law. Although women's procedural rights were expanded, minors' procedural rights were largely erased as a result of the reform movement in the late 1800s and early 1900s. Juveniles were seen as basically "good," and when family courts were created, the hearings were designated to be "non-adversarial." Procedural rights were theoretically unnecessary if there were no prosecution.

The tide began to turn against the legality and wisdom of ignoring minors' procedural rights in In re Gault, 387 U.S. 1 (1967) and In re Winship, 397 U.S. 358 (1970). The courts refused to substitute reformers' good intentions for the time-tested benefits of basic procedures. On the other hand, courts have been unwilling to require that juvenile adjudications adhere to all procedural requirements and formalities of an adult's criminal trial. See United States v. Hill, 538 F.2d 1032 (4th Cir. 1976).

In South Carolina, hearings in family court must be conducted in a judicial atmosphere, Fam. Ct. R. 9(a), but the proceeding need not be done in a "formal" way when minors are involved.

Mom v. dad

Children generally should be excluded from courtrooms in actions where parents are adverse to each other or where the parents' conduct is an issue. Fam. Ct. R. 23(a). Unless the child's testimony is essential to establish facts alleged, they should not testify about a parent's misconduct. Fam. Ct. R. 23(b).

Evidentiary privileges

Minors may, of course, invoke testimonial privileges, but their parents' rights are more limited. Spousal communications are not privileged when the action or proceeding involves the death of a child, child abuse or neglect, criminal sexual conduct involving a minor or the commission of (or attempt to commit) a lewd act upon a minor. § 19-11-30.

Bench trials

What about the "bench trial" factor? After all, a family court judge generally must hear prejudicial evidence to rule on its admissibility. Moreover, there is a tradition of applying evidence rules less strictly in equity courts. The analysis may be divided into two types of evidence: patently inadmissible evidence and unfairly prejudicial evidence.

The South Carolina Rules of Evidence apply in bench trials, so inadmissible evidence generally is still inadmissible. But cf. Brown v. Allstate Ins. Co., 344 S.C. 21, 542 S.E.2d 723 (2001) (incompetent evidence was inadmissible though harmless; judge's job is to admit "all" of the evidence). The real issue is prejudice, and appellate courts presume a judge discards all improper inferences. When inadmissible evidence is introduced in a bench trial, the judge need not affirmatively state that she did not rely upon inadmissible evidence in reaching her verdict. Of course, when the judge's findings of fact or comments actually show that the inadmissible evidence was given some weight, the appellate court may reverse; the same applies when a judge erroneously excludes inquiry into a relevant issue. Similarly, when proffered evidence is alleged to be unfairly prejudicial, the appellate court will assume that the judge ignored the improper inference.

Adjudicatory hearings

Procedural rights in family court are at their fullest in an adjudicatory hearing rather than a dispositional hearing. Adjudicatory hearings are analogous to the guilt phase of a criminal trial, and dispositional hearings are analogous to sentencing. Where fundamental due process rights are involved, fair notice, counsel, privilege against self-incrimination and an appropriate burden of proof are constitutionally required. McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Because confrontation, including cross examination, is mandated, hearsay is inadmissible in most states. Certain rules of criminal procedure apply in juvenile hearings also. See, e.g., Fam. Ct. R. 2(b) (S.C. R. Crim. P. 5, 6, 24 and 29 applicable in juvenile hearings).

Direct and cross examination of minors

A judge has discretion to allow some leading of a minor on direct examination in any court. United States v. Powers, 59 F.3d 1460 (4th Cir. 1995). She may confer with the child privately during trial, Fam. Ct. R. 22, although a parent/defendant may be present during testimony.

In some scenarios, such as those involving certain prosecutions and intervention hearings, a child witness may testify outside the presence of the defendant or the witness's parents. Here, the right of confrontation and the hearsay rule come into play. The family court must follow procedures in State v. Murrell, 302 S.C. 77, 393 S.E.2d 919 (1990) ("criminal" trials) and South Carolina Dept. of Soc. Servs. v. Wilson, 352 S.C. 445, 574 S.E.2d 730 (2002) (Burnett, J.) (intervention hearings), which are designed to guard against unduly harming a child witness while still preserving the defendant's right to confront the child.

The Wilson court noted that the defendant's right to have the victim, a critical adverse witness, testify in his presence was an important one and not to be abridged unless required by special circumstances. For example, a child's mere nervousness or excitement by the trial is insufficient to override the defendant's right to face-to-face confrontation. Instead the potential trauma must be caused by the defendant's physical presence, and it may not be de minimus. The judge's decision to exclude the defendant must be case specific, and the record must support the court's particularized findings.

Allowing the defendant only a two-minute chat with his lawyer after the victim's direct examination might be a denial of due process in certain scenarios.

Problematic hearsay scenarios

Some problematic scenarios may arise more often than others in family court.

A special two-part statutory exception applies to abuse and neglect hearings. First, a child who is or functions cognitively, adaptively or developmentally under 12 years of age may testify via a deposition or closed circuit television if Wilson's requirements are met. If the parent/defendant is present and allowed to cross-examine the victim, the child's out-of-court testimony is not barred by the hearsay rule. S.C. Code Ann. § 19-1-180(B)(1). DSS may move to exclude the parent/defendant's physical presence based upon a compelling need.

Second, when the child is unavailable and the statement possesses particularized guarantees of trustworthiness, a child's out-of-court statements may be admissible even if the child does not testify. § 19-1-180(B)(2). When the judge finds that the child's statements were coached or otherwise incredible, the statement likely will be hearsay. Cf. Richland County DSS v. Earles, 330 S.C. 24, 496 S.E.2d 864 (1998) (Burnett, J.). Presumably impeachment of the unavailable child's credibility is still possible after her statements are admitted under § 19-1-180(B)(2). See S.C. R. Evid. 806.

Another hearsay problem arises with caseworkers' files. A caseworker generally should testify directly from her memory - not by reading documents. When documents in a caseworker's file are used to establish the truth of facts asserted in them, they are hearsay unless a foundation is laid making them admissible (past recollection recorded, etc.).

One tact for admissibility of the caseworker's file documents is under the business records hearsay exception. S.C. R. Evid. 803(6). However, the foundational requirements under Rule 803(6) may not be easily satisfied. See, e.g., In re Simon, 662 N.W.2d 155 (Minn. App. 2003).

Additional hearsay problems arise when the caseworker is new to the dispute and wants to read notes authored by a prior caseworker. Sometimes such evidence may be proffered as non-hearsay. For example, a caseworker might say she read that a neighbor had complained of loud music at the minor's house; however, the comment purportedly is offered to show "why she went to investigate." Unless it is material why she went to the house, the evidence has minimal probative value or prejudicial effect. It matters little either way. But when the allegation is unfairly prejudicial (a neighbor called the prior caseworker saying that the father was sexually molesting the child), it should be excluded under Rule 403 even if non-hearsay.

Finally, Family Court Rule 7 also allows certain hearsay to be admitted, including doctors' and school records. Rule 7 has its limits, however. Under the common law, subjective opinions or judgments in records admitted under Rule 7 are inadmissible when the opinions or judgments are controverted. Kershaw County Dept. of Soc. Servs. v. McCaskill, 276 S.C. 360, 278 S.E.2d 771 (1981).

Back to the beginning

So does family court have its own genre of evidence law? Yes it does, and some of it is fairly technical. True, formality can be relaxed. However, when important fundamental rights are concerned, procedural protections are strict and virtually on par with those of a capital trial. So what is the most important rule? Be prepared!

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