Hearsay, Confidentiality and the CASA Volunteer
Everybody has heard the phrase “objection, hearsay”–if not in court then on television. But what does it mean, and why is it important? “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. ”Tex.R.Evid. 801(d). “Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.” Tex.R.Evid. 802.That is “the hearsay rule” in a few words.
As with many things in the law, exceptions take big bites out of the rule. Starting, of course, with the last sentence of Rule 802. If you testify, or put in your report “Laura told me that she saw Joan smoking crack in the baby’s bedroom,” and nobody complains, the judge can find that Joan smoked crack in the baby’s bedroom. Of course, that is why parents’ attorneys tend to complain about hearsay.
So how do you ever get such facts established when Laura is in jail in New Jersey, the baby is two years old, and nobody else was there? Well, first consider “statements which are not hearsay” by definition.
A statement is not hearsay if it is a prior statement by a witness at the trial or hearing who is subject to cross-examination concerning the statement and the statement is:
- a prior inconsistent statement and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding (except grand jury proceedings), or in a deposition (Laura testified to smoking crack with Joan in the baby’s bedroom at the temporary orders hearing, but tries to deny it at the trial on the merits.); or
- a prior consistent statement of the witness and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive (Laura testifies to the crack incident and Joan’s attorney claims she made up the incident the week before trial–you could testify that she told you the same thing soon after you got appointed). Tex.R.Evid. 801(e)(1).There are, of course, other prior statement exceptions, but those two are the most commonly used.
An admission by a party is not hearsay if it is offered against that party and is:
- the party’s own statement (“Joan told me she smoked crack in the baby’s bedroom that weekend.”); or
- a statement of which the party has manifested an adoption or belief in its truth (“Joan was sitting with us while Laura told of their crack-smoking in the baby’s bedroom and nodded in agreement.”) Tex.R.Evid. 801(e)(2).
A deposition taken in the same proceeding is not hearsay, even if the person deposed does not testify at the trial.Tex.R.Evid. 801(e)(3). However, hearsay testimony within the deposition may be challenged and can be deleted from the deposition and not considered by the judge or jury. For example, in Dr. Smith’s deposition, his report of the examination he conducted on the child could be admissible, but his statement “Laura told me that she saw Joan smoking crack in the baby’s bedroom,” might have to be struck from the deposition unless it could be brought in as part of the “basis” of his opinion with respect to the injuries to the child under Tex.R.Evid. 703.
As noted in a previous column the CASA, if appointed as guardian ad litem, is entitled to testify in court “regarding the recommendations concerning the actions that the guardian ad litem considers to be in the best interest of the child.” Although CASAs have specialized training, the courts are unlikely to deem a CASA volunteer an expert for purposes of Rule 703 mentioned above. However, the statutory mandate would certainly allow the CASA to testify and present opinions that are “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Tex.R.Evid. 703.
CASA also qualifies as a “business” under the Rules of Evidence for purposes of authenticating and presenting court reports.Tex.R.Evid. 803(6). To comply with the rule, it is important to prepare the reports close to the time that the information is gathered.With the frequency of court hearings under the permanency statutes, this should not be a problem.
Hearsay within the reports, like hearsay in a deposition, may be excluded–but it is the responsibility of the opponent to specifically identify the offending phrases and ask to have them deleted or disregarded.The whole report is not objectionable simply because some portion quotes individuals not present in court.
CASA “files, reports, records, communications, and working papers used or developed in providing services … are confidential.” Tex.Fam.Code §264.613.This does not mean, however, that they cannot be subpoenaed either for trial or for deposition. If there is a reason to be concerned about wholesale delivery of the documents to attorneys in the case, the court can be asked to examine the documents and determine which ones need to be turned over.Tex.Fam.Code §261.201 does not directly apply to CASA information, but it may provide some guidance for the court since the disclosure relates to abuse and neglect proceedings. You should keep in mind that the more miscellaneous paper you keep, the more you may be required to find and turn over, either as a part of discovery proceedings or as “writings used to refresh memory.”Tex.R.Evid. 612. Don’t keep paper you do not need; the more you have the harder it is to manage, protect and produce.
