evidence 101: is it in or is it out? kathleen sweeny, jason reyome also thanks to: mark a. glazier,...

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Evidence 101: Evidence 101: Is it in or is it Is it in or is it out? out? Kathleen Sweeny, Jason Reyome Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Also thanks to: Mark A. Glazier, Melanie Reichert and Glazier, Melanie Reichert and Erin M.R. Romer Erin M.R. Romer *Special thanks to Vicki *Special thanks to Vicki Davis and the Indiana Davis and the Indiana Judicial Center Judicial Center

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Page 1: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Evidence 101: Evidence 101: Is it in or is it out?Is it in or is it out?

Kathleen Sweeny, Jason ReyomeKathleen Sweeny, Jason Reyome

Also thanks to: Mark A. Glazier, Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Melanie Reichert and Erin M.R.

RomerRomer

*Special thanks to Vicki Davis and *Special thanks to Vicki Davis and the Indiana Judicial Centerthe Indiana Judicial Center

Page 2: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Small ClaimsSmall Claims

Your sister-in-law runs a doggie Your sister-in-law runs a doggie daycare. A client sues her for $450 in daycare. A client sues her for $450 in small claims court claiming her dog small claims court claiming her dog caught an eye infection at daycare.caught an eye infection at daycare.

The crabby client offers a vet bill for The crabby client offers a vet bill for $300 without a business records $300 without a business records affidavit.affidavit.

You brilliantly call out “Objection, You brilliantly call out “Objection, hearsay”hearsay”

Page 3: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

In or Out: Vet Bill w/o Business Record In or Out: Vet Bill w/o Business Record Affidavit?Affidavit?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 4: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Small Claims Vet Bill w/o AffidavitSmall Claims Vet Bill w/o Affidavit

IN!!!!IN!!!! IN Rule 101(c)(2) exempts:IN Rule 101(c)(2) exempts: "[p]roceedings relating to "[p]roceedings relating to

extradition, sentencing, probation, extradition, sentencing, probation, or parole; issuance of criminal or parole; issuance of criminal summonses, or of warrants for arrest summonses, or of warrants for arrest or search, preliminary juvenile or search, preliminary juvenile matters, direct contempt, bail matters, direct contempt, bail hearings, small claims, and grand hearings, small claims, and grand jury proceedings.jury proceedings.

Page 5: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Momma’s Boy Momma’s Boy

Mother is brought to police Mother is brought to police station so she can be station so she can be interviewed about the interviewed about the whereabouts of her adult son whereabouts of her adult son on New Year’s Eve. Adult son is on New Year’s Eve. Adult son is arrested for robbery in part arrested for robbery in part based upon Mother’s statement based upon Mother’s statement that he was at Joe’s house that he was at Joe’s house which happens to be where the which happens to be where the robbery occurred.robbery occurred.

Page 6: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Momma’s Boy (cont.)Momma’s Boy (cont.)

At trial, the prosecution calls the police At trial, the prosecution calls the police officer who interviewed Mother:officer who interviewed Mother:

STATE: Officer what did Mother tell STATE: Officer what did Mother tell

you about her son’s whereabouts?you about her son’s whereabouts? DEFENSE: Objection, HearsayDEFENSE: Objection, Hearsay STATE Judge, Mother is here to testify STATE Judge, Mother is here to testify

today...And can be cross examined.today...And can be cross examined.

Page 7: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Momma’s statement regarding son’s Momma’s statement regarding son’s whereabouts?whereabouts?

A.A. InInB.B. OutOutC.C. Need more Need more

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Page 8: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Momma’s Boy Momma’s Boy

OUTOUT

Regardless of whether the declarant is Regardless of whether the declarant is available at trial for cross-examination, available at trial for cross-examination, a hearsay statement is not ordinarily a hearsay statement is not ordinarily admissible as substantive evidence. admissible as substantive evidence. Here, the officer's testimony was Here, the officer's testimony was hearsay and did not qualify under hearsay and did not qualify under Evidence Rule 801(d) for exclusion from Evidence Rule 801(d) for exclusion from the definition of hearsay or any of the the definition of hearsay or any of the exceptions to the hearsay rule under exceptions to the hearsay rule under Evidence Rule 803. Evidence Rule 803.

Page 9: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Momma’s Boy IIMomma’s Boy II

What if prior to trial, Defense What if prior to trial, Defense files motion in limine, outlining files motion in limine, outlining the 803 objection. Court denies. the 803 objection. Court denies.

At trial, now Defense calls out At trial, now Defense calls out only “objection” is this enough only “objection” is this enough to preserve for appeal?to preserve for appeal?

Page 10: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Is Filing a Motion In Limine and general Is Filing a Motion In Limine and general objection enough to preserve for appeal?objection enough to preserve for appeal?

A.A. YesYesB.B. NoNoC.C. MaybeMaybe

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Page 11: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Good Judgment? Good Judgment?

Greta Good Judgment and Freddy Father had a child Greta Good Judgment and Freddy Father had a child out of wedlock. Paternity was established in 2007, out of wedlock. Paternity was established in 2007, Greta received sole custody. Greta received sole custody.

Years later, during a custody and support modification Years later, during a custody and support modification hearing, Freddy testifies that Greta is living with a hearing, Freddy testifies that Greta is living with a man who has prior conviction for felony battery on a man who has prior conviction for felony battery on a child and supplying alcohol to a minor. In giving child and supplying alcohol to a minor. In giving Father custody, the judge said she considered a Father custody, the judge said she considered a Johnson County protective order Mother had obtained Johnson County protective order Mother had obtained against another man she had recently dated, relating against another man she had recently dated, relating to a felony battery conviction. The Johnson County to a felony battery conviction. The Johnson County Protective had not been admitted into evidenceProtective had not been admitted into evidence..

Page 12: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Protective Order: In or Out? Protective Order: In or Out?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 13: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Good judgment?Good judgment?

In In Paternity of P.R. and A.R.; H.B. v. J.R.Paternity of P.R. and A.R.; H.B. v. J.R., , No. 36A01-1005-JP-255No. 36A01-1005-JP-255

201 (b)   Kinds of Laws. A court may take 201 (b)   Kinds of Laws. A court may take judicial notice of :judicial notice of :(5) records of a court of (5) records of a court of this statethis state, “Although Mother was not , “Although Mother was not afforded an opportunity to be heard afforded an opportunity to be heard before the court took judicial notice, before the court took judicial notice, Rule Rule 201(e)201(e) provides that Mother could have provides that Mother could have made a timely request after judicial notice made a timely request after judicial notice was taken,” Judge Nancy Vaidik was taken,” Judge Nancy Vaidik

Page 14: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Sugar Bear was juggling knives in the kitchen while his Sugar Bear was juggling knives in the kitchen while his three young children played at his feet. His wife, Mama, three young children played at his feet. His wife, Mama, was on the phone in the same room talking to her sister was on the phone in the same room talking to her sister Brandi. Mama, while eyeing her husband’s antics, said Brandi. Mama, while eyeing her husband’s antics, said to her sister, ‘Yes, he’s practicing his juggling right now, to her sister, ‘Yes, he’s practicing his juggling right now, using my best set of kitchen knives.’ Just at that using my best set of kitchen knives.’ Just at that moment, Sugar Bear dropped one of the knives on his moment, Sugar Bear dropped one of the knives on his four-year-old son Cletus. Cletus screamed, ‘Owwww, four-year-old son Cletus. Cletus screamed, ‘Owwww, Sugar Bear cut me!’ Mama shouted, ‘I warned you not Sugar Bear cut me!’ Mama shouted, ‘I warned you not to throw knives in the air with all those kids around!’ to throw knives in the air with all those kids around!’ And Cletus’s sister Honey Boo Boo yawned and And Cletus’s sister Honey Boo Boo yawned and commented, ‘Here we go again, Cletus cries every day commented, ‘Here we go again, Cletus cries every day about something.’ Assume Brandi overheard all of these about something.’ Assume Brandi overheard all of these statements and is called to testify about what she heard. statements and is called to testify about what she heard. Which of these statements would be admissible for the Which of these statements would be admissible for the truth of the matter asserted?truth of the matter asserted?

Page 15: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

In or Out: Mama’s statement to Brandi about In or Out: Mama’s statement to Brandi about the juggling practice?the juggling practice?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 16: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Honey Boo BooHoney Boo Boo

Mama’s statement to Brandi about Mama’s statement to Brandi about the juggling practice?the juggling practice?

IN!!!!IN!!!!

Ind. Evidence Rule 803(1) – Present Ind. Evidence Rule 803(1) – Present Sense ImpressionSense Impression

Page 17: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

In or Out: “Owwww, Sugar Bear cut me!”In or Out: “Owwww, Sugar Bear cut me!”

A.A. InInB.B. OutOutC.C. Need more Need more

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Page 18: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Honey Boo BooHoney Boo Boo

““Owwww, Sugar Bear cut me!”Owwww, Sugar Bear cut me!”

IN!!!!IN!!!! Ind. Evidence Rule 803(1) – Present Ind. Evidence Rule 803(1) – Present

Sense ImpressionSense Impression and/orand/or

Ind. Evidence Rule 803(1) – Excited Ind. Evidence Rule 803(1) – Excited utteranceutterance

Page 19: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

In or Out: “I warned you not to throw knives in In or Out: “I warned you not to throw knives in the air with all those kids around!”?the air with all those kids around!”?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 20: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Honey Boo BooHoney Boo Boo

““I warned you not to throw knives in the I warned you not to throw knives in the air with all those kids around!”air with all those kids around!”

IN!!!!IN!!!! As an excited utterance (Rule 803(1) )As an excited utterance (Rule 803(1) )

OUT!!!!OUT!!!! As a present sense impression (Rule As a present sense impression (Rule

803(2))803(2))

Page 21: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

In or Out: Honey Boo Boo’s statement In or Out: Honey Boo Boo’s statement about her brother? about her brother?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 22: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Honey Boo BooHoney Boo Boo

Honey Boo Boo’s statement about her Honey Boo Boo’s statement about her brother? brother?

OUT!!!!OUT!!!!

Page 23: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

TomKatTomKat Tom and Kate have one small child, Suri. They Tom and Kate have one small child, Suri. They

separate, Kate files for divorce in Marion County. During separate, Kate files for divorce in Marion County. During the separation, Kate falls madly in love with Dawson. the separation, Kate falls madly in love with Dawson. She’s so blinded by love, however, that she overlooks She’s so blinded by love, however, that she overlooks the fact that Dawson was convicted of two counts of the fact that Dawson was convicted of two counts of felony neglect regarding his two children in Hendricks felony neglect regarding his two children in Hendricks County. Dawson’s criminal file contains the charging County. Dawson’s criminal file contains the charging information, to which a probable cause affidavit is information, to which a probable cause affidavit is attached. The criminal court file also includes an order attached. The criminal court file also includes an order accepting Dawson’s guilty plea and the sentencing accepting Dawson’s guilty plea and the sentencing order. All of the criminal court documents are stamped order. All of the criminal court documents are stamped with “Confidential—Not for Public Access” but are not on with “Confidential—Not for Public Access” but are not on green paper. Dawson’s kids were subject to a CHINS green paper. Dawson’s kids were subject to a CHINS action in Hendricks County as well. That court file action in Hendricks County as well. That court file contains the CHINS petition with an attached affidavit contains the CHINS petition with an attached affidavit from the intake family case manager. from the intake family case manager.

Page 24: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

TomKat (cont.)TomKat (cont.) Dawson and his then wife admitted the CHINS, and Dawson and his then wife admitted the CHINS, and

entered into agreed dispositional orders. All of those entered into agreed dispositional orders. All of those documents are contained in the CHINS file. In documents are contained in the CHINS file. In response to a deposition subpoena, Dawson provides response to a deposition subpoena, Dawson provides copies of the 310 and 311 completed by the copies of the 310 and 311 completed by the Hendricks County DCS, with an affidavit from the Hendricks County DCS, with an affidavit from the records custodian. One week before trial, Kate tells records custodian. One week before trial, Kate tells Tom that she’s broken up with Dawson and will Tom that she’s broken up with Dawson and will stipulate that he should not be around their kids. stipulate that he should not be around their kids. However, two days before trial, Dawson is at Kate’s However, two days before trial, Dawson is at Kate’s house when Tom returns the kids after parenting house when Tom returns the kids after parenting time. time. 

The only witnesses Tom calls during the final hearing The only witnesses Tom calls during the final hearing in his divorce case with Kate are the parties and in his divorce case with Kate are the parties and Dawson. Assume all the court documents are Dawson. Assume all the court documents are certified.certified.

Page 25: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

In or Out: The charging information and probable In or Out: The charging information and probable cause affidavit in Dawson’s criminal case?cause affidavit in Dawson’s criminal case?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 26: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

TomKatTomKat

The charging information and probable The charging information and probable cause affidavit in Dawson’s criminal cause affidavit in Dawson’s criminal case?case?

IN!!!!IN!!!! Ind. Evidence Rule 201. Judicial Notice.Ind. Evidence Rule 201. Judicial Notice.

(Should at least move to (Should at least move to

exclude the probable cause affidavit exclude the probable cause affidavit

as hearsay since the officer drafting as hearsay since the officer drafting

the report is not present.)the report is not present.)

Page 27: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

In or Out: The plea agreement and In or Out: The plea agreement and sentencing order in Dawson’s criminal case?sentencing order in Dawson’s criminal case?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 28: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

TomKatTomKat

The plea agreement and sentencing The plea agreement and sentencing order in Dawson’s criminal case?order in Dawson’s criminal case?

IN!!!!IN!!!!

Ind. Evidence Rule 201. Judicial Notice.Ind. Evidence Rule 201. Judicial Notice.

AndAnd Ind. Evidence Rule 803(8). Public Ind. Evidence Rule 803(8). Public

Records and Reports.Records and Reports.

Page 29: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Is the CHINS petition and attached Is the CHINS petition and attached affidavit IN or OUT?affidavit IN or OUT?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 30: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

TomKatTomKat

The CHINS petition and attached The CHINS petition and attached affidavit?affidavit?

IN!!!!IN!!!! Ind. Evidence Rule 201. Judicial Notice.Ind. Evidence Rule 201. Judicial Notice.

(Should at least move to exclude the (Should at least move to exclude the affidavit of the FCM as hearsay since affidavit of the FCM as hearsay since

the FCM is not present to testify.)the FCM is not present to testify.)

Page 31: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The CHINS dispositional orders:The CHINS dispositional orders: IN or OUT? IN or OUT?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 32: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

TomKatTomKat

The CHINS dispositional orders?The CHINS dispositional orders?

IN!!!!IN!!!! Ind. Evidence Rule 201. Judicial Ind. Evidence Rule 201. Judicial

Notice.Notice.

Page 33: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The 310 and 311?The 310 and 311?IN or OUT?IN or OUT?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 34: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

TomKatTomKat

The 310 and 311: IN OR OUT?The 310 and 311: IN OR OUT? OUT!!!!OUT!!!!

They are not business records and they do They are not business records and they do not fall under the public records exception not fall under the public records exception (Rule 803(8)(a)). Investigatory reports (Rule 803(8)(a)). Investigatory reports prepared by government agencies are an prepared by government agencies are an exception to the public records hearsay exception to the public records hearsay exception.exception.

Page 35: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The ExpertsThe Experts

Three young children experience an Three young children experience an unbelievable tragedy when their mother kills unbelievable tragedy when their mother kills their father and then herself. Both parents’ their father and then herself. Both parents’ families seek care and custody of the children. families seek care and custody of the children. The children are enrolled in grief counseling The children are enrolled in grief counseling with an LCSW, and the custody court appoints with an LCSW, and the custody court appoints a GAL. The GAL speaks with all relevant a GAL. The GAL speaks with all relevant individuals, including the LCSW. The GAL individuals, including the LCSW. The GAL timely issues a report and recommendation for timely issues a report and recommendation for custody. The GAL, who participated in custody. The GAL, who participated in mediation and was copied on all settlement mediation and was copied on all settlement letters, also includes in the report a detailed letters, also includes in the report a detailed discussion of each party’s settlement offers. discussion of each party’s settlement offers.

Page 36: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The Experts (cont.)The Experts (cont.)

Counsel for one of the families seeking custody Counsel for one of the families seeking custody consults with a PhD psychologist through the consults with a PhD psychologist through the course of the case. The psychologist does not course of the case. The psychologist does not interview the children or any party. The interview the children or any party. The psychologist is identified as a potential witness psychologist is identified as a potential witness and is deposed based on “hypotheticals.” The and is deposed based on “hypotheticals.” The GAL, the LCSW and the psychologist all have GAL, the LCSW and the psychologist all have opinions as to what custodial situation would opinions as to what custodial situation would be best for the kids. All three are scheduled to be best for the kids. All three are scheduled to testify at hearing. One week before trial, testify at hearing. One week before trial, counsel for the other family filed a “Motion to counsel for the other family filed a “Motion to Exclude” the psychologist’s testimony in its Exclude” the psychologist’s testimony in its entirety for lack of personal knowledge.entirety for lack of personal knowledge.

Page 37: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The custody recommendation of the The custody recommendation of the LCSW: IN or OUT?LCSW: IN or OUT?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 38: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The ExpertsThe Experts

   The custody recommendation of the LCSW: IN or The custody recommendation of the LCSW: IN or

OUT?OUT?

OUT!!!!OUT!!!!

Guideline 7, Guideline 7, Guidelines for Child Custody Evaluations in Family Guidelines for Child Custody Evaluations in Family Law ProceedingsLaw Proceedings, American Psychological Association, 2010., American Psychological Association, 2010.

Standard 3.06 “Conflict of Interest,”Standard 3.06 “Conflict of Interest,” Ethical Principles of Ethical Principles of Psychologists and Code of ConductPsychologists and Code of Conduct, American Psychological , American Psychological

Association. 2010.Association. 2010. IC 25-23.6-4-6 Permitted testimony. A social worker licensed IC 25-23.6-4-6 Permitted testimony. A social worker licensed

under this article may provide factual testimony but may not under this article may provide factual testimony but may not provide expert testimony.provide expert testimony.

Page 39: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The custody recommendation of the LCSW The custody recommendation of the LCSW through the GAL: IN or OUT?through the GAL: IN or OUT?

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 40: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The ExpertsThe Experts

  

The custody recommendation of the The custody recommendation of the LCSW through the GAL:LCSW through the GAL: IN or IN or OUT?OUT?

IN!!!!IN!!!!

Page 41: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The GAL report: IN or OUT?The GAL report: IN or OUT?

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Page 42: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The ExpertsThe Experts

   The GAL report?The GAL report?

NEED MORE INFONEED MORE INFO…BUT…BUT IN IN IF:IF: Under I.C. 31-17-2-12*Under I.C. 31-17-2-12*

* The report will not be excluded so long as:  * The report will not be excluded so long as:   (c) The court shall mail the investigator's report to counsel and (c) The court shall mail the investigator's report to counsel and

to any party not represented by counsel at least ten (10) days to any party not represented by counsel at least ten (10) days before the hearing. The investigator shall make the following before the hearing. The investigator shall make the following available to counsel and to any party not represented by available to counsel and to any party not represented by counsel:counsel:        (1) The investigator's file of underlying data and reports.        (1) The investigator's file of underlying data and reports.        (2) Complete texts of diagnostic reports made to the         (2) Complete texts of diagnostic reports made to the investigator under subsection (b).investigator under subsection (b).        (3) The names and addresses of all persons whom the         (3) The names and addresses of all persons whom the investigator has consulted.investigator has consulted.

Page 43: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The custody recommendation of The custody recommendation of the GAL: the GAL:

A.A. InInB.B. OutOutC.C. Need More Need More

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Page 44: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The ExpertsThe Experts

  

The custody recommendation of the The custody recommendation of the GAL?GAL?

IN!!!!!IN!!!!!

Under I.C. 31-17-2-12(a)Under I.C. 31-17-2-12(a)

Page 45: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The testimony of the PhD regarding The testimony of the PhD regarding hypotheticals: IN or OUT?hypotheticals: IN or OUT?

A.A. InInB.B. OutOutC.C. Need More Need More

InformationInformation

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In

OutNe

ed M

ore

Info

rm...

0

Page 46: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The ExpertsThe Experts

The testimony of the PhD The testimony of the PhD regarding hypotheticals?regarding hypotheticals?

IN!!!!!!IN!!!!!! Rule 703. Experts may offer opinions based upon Rule 703. Experts may offer opinions based upon

“hypotheticals.” “hypotheticals.” See Johnson v. StateSee Johnson v. State, 699 N.E.2d 746, 750 , 699 N.E.2d 746, 750 (Ind. Ct. App. 1998; (Ind. Ct. App. 1998; Lasater v. LasaterLasater v. Lasater, 809 N.E.2d 380, 395-, 809 N.E.2d 380, 395-

396 (Ind. Ct. App. 2004).396 (Ind. Ct. App. 2004).

Page 47: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The custody recommendation of The custody recommendation of the PhD: In or Out?the PhD: In or Out?

A.A. InInB.B. OutOutC.C. Need More Need More

InformationInformation

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0

Page 48: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The ExpertsThe Experts

  

The custody recommendation The custody recommendation of the PhD?of the PhD?

SHOULD BE OUT!!!!SHOULD BE OUT!!!! Rule 12.2 “Articulation of the bases for opinions Rule 12.2 “Articulation of the bases for opinions

expressed,” and Rule 12.4 “Articulation of Limitations,”expressed,” and Rule 12.4 “Articulation of Limitations,” Model Standards of Practice for Child Custody Model Standards of Practice for Child Custody

EvaluationEvaluation, Association of Family and Conciliation , Association of Family and Conciliation Courts, 2006.Courts, 2006.

AndAnd Standard 3.06 “Conflict of Interest,”Standard 3.06 “Conflict of Interest,” Ethical Principles Ethical Principles

of Psychologists and Code of Conductof Psychologists and Code of Conduct, American , American Psychological Association. 2010.Psychological Association. 2010.

Page 49: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Moneybags, Part IMoneybags, Part I

After nearly half a century of marriage, DONALD and IVANNA After nearly half a century of marriage, DONALD and IVANNA Moneybags divorced. Ivanna brought this post-dissolution Moneybags divorced. Ivanna brought this post-dissolution contempt action on the grounds that the Don has not complied contempt action on the grounds that the Don has not complied with the Decree. During trial, Ivanna offered into evidence with the Decree. During trial, Ivanna offered into evidence certain pay records, which consisted of eighteen pages of certain pay records, which consisted of eighteen pages of computer printouts, to prove that Donald had failed to pay her computer printouts, to prove that Donald had failed to pay her one-half of his retirement pay. Donald objected to their one-half of his retirement pay. Donald objected to their admission on the grounds that the records were hearsay.admission on the grounds that the records were hearsay.

Ivanna offered the affidavit of the Custodian of Records of the Ivanna offered the affidavit of the Custodian of Records of the DFASCC, Betty Budinsky, to lay the foundation for the DFASCC, Betty Budinsky, to lay the foundation for the introduction of Donalds's pay records under either the business introduction of Donalds's pay records under either the business records or public records exceptions. Specifically, Ms. Budinsky records or public records exceptions. Specifically, Ms. Budinsky stated that the printouts were (1) Donald's retirement pay stated that the printouts were (1) Donald's retirement pay records, (2) made at or near the time of the pay disbursements, records, (2) made at or near the time of the pay disbursements, (3) made by or from information transmitted by a person with (3) made by or from information transmitted by a person with knowledge of the disbursements, (4) kept in the course of knowledge of the disbursements, (4) kept in the course of regularly conducted activity, and (5) made as a regular practice regularly conducted activity, and (5) made as a regular practice of the agency. of the agency.

Page 50: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The pay records offered by Ivanna: The pay records offered by Ivanna: In OR Out?In OR Out?

A.A. InInB.B. OutOutC.C. Need More Need More

InformationInformation

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Page 51: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Moneybags, Part IMoneybags, Part I

The pay records offered by Ivanna:The pay records offered by Ivanna:

IN!!!!IN!!!!

Ind. Evidence Rule 803(6). Records of Regularly Ind. Evidence Rule 803(6). Records of Regularly Conducted Business ActivitiesConducted Business Activities

And/orAnd/or Ind. Evidence Rule 803(8). Public Records and Ind. Evidence Rule 803(8). Public Records and

ReportsReports

Page 52: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Moneybags, Part IIMoneybags, Part II

Ivanna’s attorney had the attorney’s law clerk, Larry Ivanna’s attorney had the attorney’s law clerk, Larry Lawstudent, distill the many years’ worth of pay Lawstudent, distill the many years’ worth of pay records and some tax returns into a two-page records and some tax returns into a two-page summary. The summary contained no opinions or summary. The summary contained no opinions or analysis, but was merely a compilation of data. At analysis, but was merely a compilation of data. At trial, Ivanna moved to admit the summary into trial, Ivanna moved to admit the summary into evidence; the underlying pay records and tax returns evidence; the underlying pay records and tax returns had been previously admitted. Donald objects to the had been previously admitted. Donald objects to the summary of pay records prepared by Larry summary of pay records prepared by Larry Lawstudent. Specifically, he argues that the law clerk Lawstudent. Specifically, he argues that the law clerk was not qualified to prepare the summary of Donald's was not qualified to prepare the summary of Donald's pay records because Larry did not possess expertise pay records because Larry did not possess expertise in accounting or interpreting retirement plans and did in accounting or interpreting retirement plans and did not have personal knowledge about the methods not have personal knowledge about the methods used by the Navy in preparing the pay records.used by the Navy in preparing the pay records.

Page 53: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

The summary of pay records and tax returns The summary of pay records and tax returns prepared by Larry Lawstudent and offered by prepared by Larry Lawstudent and offered by

Ivanna: Ivanna:

A.A. InInB.B. OutOutC.C. Need More Need More

InformationInformation

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0

Page 54: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Moneybags, Part IIMoneybags, Part II

The summary of pay records and tax The summary of pay records and tax returns prepared by Larry Lawstudent returns prepared by Larry Lawstudent and offered by Ivanna:and offered by Ivanna:

IN!!!!IN!!!! Ind. Evidence Rule 1006Ind. Evidence Rule 1006

AndAnd ““Although Husband attempts to characterize the summary as Although Husband attempts to characterize the summary as

the work and interpretation of an expert, it is merely a the work and interpretation of an expert, it is merely a compilation of the data found in the other evidence and some compilation of the data found in the other evidence and some

basic arithmetic calculations. Despite reports that our basic arithmetic calculations. Despite reports that our educational system has declined, we are not prepared to hold educational system has declined, we are not prepared to hold that basic math computations require expert testimony. Under that basic math computations require expert testimony. Under these circumstances, the trial court did not err in admitting the these circumstances, the trial court did not err in admitting the summary.” summary.” See See Shively v. ShivelyShively v. Shively, 680 N.E.2d 877, 880 (Ind. , 680 N.E.2d 877, 880 (Ind.

Ct. App. 1997).Ct. App. 1997).

Page 55: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks
Page 56: Evidence 101: Is it in or is it out? Kathleen Sweeny, Jason Reyome Also thanks to: Mark A. Glazier, Melanie Reichert and Erin M.R. Romer *Special thanks

Ethical or Unethical?Ethical or Unethical?

A.A. EthicalEthicalB.B. UnethicalUnethical

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Ethi

cal

Unet

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