Expert Witness Blog
Child abuse expert witnesses may advise regarding child abuse and neglect, including the physical, emotional, or sexual mistreatment of children. On its website, the Child Welfare Information Gateway describes the process of proving child maltreatment in court. CWIG is a service of the Children’s Bureau, Administration for Children and Families, U.S. Department of Health and Human Services
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.
1.A teacher kept a log of the days that the child came to school with bruises.
2.A neighbor heard a child’s screams.
3.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.
4.Medical records.
5.Photographs of the bruises taken by a police officer called by the doctor.
6.The child said that his/her parent beat him/her with a belt.
7.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