Social Worker as Witness
Patricia C. Clark
University of Wisconsin – Eau Claire
- Criminal (felonies or misdemeanors): offenses where penalty may be fines and/or incarceration.
- Civil: offenses where sole penalty is forfeiture of money or goods.
- Ordinances: civil law enacted by a local unit of municipal government, i.e. city, town, village
- Means “authority to act.”
- A court may be given exclusive jurisdiction (only court which may act unless waived) or concurrent jurisdiction (any courts named in a particular statute has authority to act)
- Adult courts have exclusive jurisdiction over juveniles 16 and 17 alleged to have violated most boating and vehicle regulations. Under age 14, juvenile court has Jurisdiction regardless of the civil or ordinance offense. (Generally true; statute lists disclaimers and exceptions.)
TWO PHASES OF COURT PROCESS
- Adjudication: fact-finding and determination regarding the charge
- Disposition: sentence determination
- The assertion or statement of a party to a lawsuit often made in a pleading or legal document setting out what the party can expect to prove at the trial.
- Until adjudicated guilty, defendant has only “allegedly” committed the offense (innocent until proven guilty).
- Law in its regular course of administration through the courts of Justice; the guarantee of due process requires that every person has the protection of a fair trial.
- Assured to juveniles following Re Gault (1967)
- An agreement by attorneys on opposite sides of a case as to any matter pertaining to the proceedings or trial.
- Pretrial discovery device
BURDEN OF PROOF
- State has the burden of proving the allegations set out in the petition filed before the court.
- Generally, state’s evidence must add up to a prima facie case (state has proven that all events occurred and that the parents were responsible for their occurrence; note this is not the situation of a delinquency hearing).
STANDARDS OF PROOF
- The degree of proof used to prove a fact in court.
- beyond a reasonable doubt: used in criminal and delinquency cases (Re Winship 1970). Generally means that evidence is entirely convincing to a moral certainty (sometimes indicated as 90%)
- clear and convincing evidence: 70%.
- preponderance of the evidence: 51% minimum. Test traditionally applied in civil cases; many states use for abuse and neglect cases also. This is the standard used in the INVESTISTION of abuse/neglect by most social workers.
TYPES OF EVIDENCE
- Direct testimony by witnesses established the fact such as “I saw Mrs. Jones strike her son.”
- Circumstantial evidence of an indirect nature by which the finder of fact may reason from the accumulation of circumstances known or proved that the principal fact can be established by inference (e.g., “I heard someone strike Mrs. Jones’ child,” coupled with the statement, “I also heard Sammy Jones say, ‘Don’t hit me, Mommy’”)
FORMS OF EVIDENCE
- Real: tangible objects (such as weapons, photographs)
- Documentary: certified documents usually identified and authenticated by proper authorities
- Testimonial: oral testimony given in court by a witness
- Hearsay: testimony about a statement made outside the courtroom and not placed in evidence because there is no opportunity to test its reliability through cross-examination. Generally, unless the person who is testifying saw or participated in the activity about which he/she is testifying, the testimony is admissible. Generally, hearsay testimony is not admissible because there is no opportunity to cross-examine the person making the original statement; the original statement was not made under oath; there is a problem of accuracy in repeating a statement made by someone else and there is no opportunity for the finder of fact to observe the demeanor of person making the original statement. There are a number of “exceptions” to the hearsay rule too detailed and legalistic to define here; suffice it to say, the attorneys will watch the admission process of this type of testimony very carefully (an example. of one exception in some states is the allowance of a videotape in a sexual abuse case coupled with the social worker testifying as to the victim’s perspective). For excellent discussion of exceptions to the hearsay rule, see Caulfield and Horowitz (1987).
ADMISSIBILITY OF EVIDENCE
- at adjudication proceeding, usually must be competent, relevant, and material. Competent: source qualified to present evidence (e.g., not drunk, comatose); relevant; evidence bearing on the proceeding at hand; and material: evidence carrying important consequences for the case.
TYPES OF WITNESSES
- lay or factual; testimony regarding what the individual saw, heard, smelled or touched. An individual who has knowledge of the facts pertaining to the lawsuit or proceeding. Lay witnesses can give opinion generally on speed, intoxication and insanity or when requested assuming there is no objection from opposing counsel.
- expert: witness “qualified” by the judge and, as a result, permitted to render opinions in a particular area. Social workers, in some rather limited instances (custody, child abuse, etc.) can qualify as an “expert” but should be ready to defend qualifications.
RELEVANT DEFINITIONS/TERMS FROM PRACTICE AREA
- Social workers should know the LEGAL definitions of the terms used often in practice in the areas wherein they work. For example, in some instances, the legal definition might not be similar to the common sense definition or the one commonly used in practice (DSN—III).
- Examples would be types of abuse; least restrictive care; restitution; diversion; permanency planning; delinquent, etc.
- information given in confidence, intended to be kept secret
- social workers need to be very aware, according to state statutes and agency procedures, what types of information they can tell clients is confidential
- some confidential communications are protected by statutes, so that they need not nor cannot be disclosed in court over the objection of the holder of the privilege.
- the CLIENT claims privileged communication, not the professional
- varies by state as to which professions are covered. Usually, physicians, lawyers, spouse, and religious personnel are included by most states. Social workers often are not.
- typical exceptions to privileged communication are based on credentials; matters of child physical and sexual abuse, and unconfessed murder (although, even in this instance, clergy-penitent relationship is considered more binding than the mandate to disclose.)