Posted On: August 19, 2014 by Karen Olson

Child Abuse Expert Witnesses Part 2

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... 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.

Excited Utterances
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.