1. preliminary protective proceeding
Shelter Hearing
Advisement Hearing
Temporary Protective Custody Hearing
Detention Hearing

2. Emergency Custody
Law Enforcement may remove a child without a court order if the child is seriously endangered or seriously endangers others.
The Department may remove a child with an ex parte court order, if necessary because there is a danger to the child’s life or health.
The court may also issue ex parte protective orders, without removing the child.

3. Deciding whether to take emergency custody
Out-of-home placement criteria
In deciding whether to remove a child, the Department looks at 3 criteria. All three are required to be met prior to removal.

4. Criteria 1
Under Volume 7, a child can be at risk for out of home placement because of:
Abandonment;
Abuse/neglect;
Domestic violence;
Caretaker unable to care for child because of substance abuse, mental illness, disability, illness, homelessness;
Child beyond control of parent;
Danger to self or others;
Infant or young child of teen in placement- Note Vol. 7 (12 CCR2509-1) at G: Title IV-E foster funds extend to the child of a teenage parent who is eligible for these funds.
Delinquency;
Relinquishment or termination of parent rights;
Child returning home from placement.

5. Criteria 2 Assess LEVEL of risk for removal (Volume 7.202.5)
If imminent then determine child/family strengths and identify appropriate services (reasonable efforts).
If services are not available, are unsuccessful, or exhausted, removal may be considered.

6. Criteria 3
Removal appropriate when placement is best choice of available options
Volume 
BUT must continue reasonable efforts to resolve conditions which led to imminent risk

7. Reasonable Efforts Identify appropriate parent/relative/caretakers
Assess the parent/r/c ability to protect
Ability to assist the parent/r/c in accessing services.

8. Preliminary Protective Proceeding (PPP) Hearing
C.R.S. § ; 405
When the Department has taken emergency protective custody of a child, a PPP hearing is held to determine whether that custody should continue with the Department or whether the child should be returned to his or her parents.

9. Emergency Protective Orders
If the Department did not take custody on an emergency basis, but instead sought ex parte protective orders, this hearing is held to modify or continue those orders.
If the Department has not sought any ex parte orders, either custody or protection orders, this hearing is the first chance to make such requests.

10. Burden of Proof Department has the burden of proof.
Standard for a non-Indian child is whether the custody or protection order is appropriate and in the child’s best interests. C.R.S. § (3.6)(a)(V).
Any probative evidence is admissible.

11. Burden of Proof Under ICWA
Different standard for removal for an Indian child
Who is an Indian child?
Member of an Indian tribe; or
Eligible for membership and is the biological child of a member.

12. Burden of Proof Under ICWA
Standard for removal:
Active Efforts
Child must face serious emotional or physical damage if left in the home
Standard of proof is clear and convincing evidence
Including testimony of a qualified expert witness
Placement preferences if child is removed- 25 U.S.C. § 1915(b):
Child’s extended family
Member of child’s tribe
Member of another tribe
Foster care

13. Timing 72 hours after removal; 48 hours for police hold
72 hours after protective orders entered
Excluding weekends and holidays
NOT jurisdictional

14. Placement Options Preference to relatives
Relative must be willing, capable, and appropriate
Child’s best interests
C.R.S. § (3.6) (a) (III)
Talk about Volume 7 requirements here.

15. Placement Options, continued
Otherwise Court Considers:
Child’s safety
Least restrictive environment
Appropriate to child’s needs
Near parents/community
Educational needs of child
Cultural considerations
Family’s religious preferences
Availability and costs
Sibling placement
42 U.S.C. 675 (5) (A)

16. Relatives How do you know if they are appropriate?
CBI and Trails/state central registry check
Federal law under the ASFA, codified in Colorado, at C.R.S. § , eliminates people with certain convictions from consideration for placement.
People with certain other convictions MAY be approved by the court, but it is discretionary.
Have space/provisions
Can be protective
Will facilitate parent/sibling contact

17. Relatives, continued
Appropriate also often means the Department approves of placement with them.
Volume 7 regulations permit emergency placement:
Kin does not have to be certified prior to placement
Placement can be done on emergency basis – “visitation basis”
Kin are eligible for supportive services, including Medicaid, child care, family preservation services, and core services to make placement viable.

18. Relatives, continued Volume 7.304.2
Placement with kin can be voluntary.
Kin are entitled to foster care payment if they become licensed.
Kin are entitled to foster care payment. It is NOT a need based calculation.
If relatives do not choose to become certified, they may choose to apply for Relative TANF for public funds to help support the child. They could also ask for child support from the Department.
Broad definition of “kin”
Relatives or persons with a “family like” relationship

19. Defenses at PPP
Volume 7 process – identify family strengths, identify needed services
Emergency?
Reasonable Efforts?
Safety Plan?
Placement with kin
Effect of admissible hearsay

20. Contesting the PPP Hearing
Consider the following when deciding whether to contest the hearing or not:
Defenses? Ask your client factual questions to determine any possible defenses
Witnesses? Ask your client to identify the presence of helpful witnesses, if any
Likelihood to prevail? Discuss with client what you believe are the chances
Placement and visitation? Discuss with client the alternatives
RPC Client decides the objective of the representation, and the lawyer decides the means. Client decides whether or not to contest PPP.

21. Seeking Visitation Orders
Reunification is dependent upon frequent and meaningful visitation.
Agency office visits are the worst locations for families to visit.
Ask that Department follow best practices regarding visitation.
Ask client to identify someone who may be able to supervise visits outside of the Department – a friend, relative, pastor, community worker. Then ask the court to order Department to investigate this person as a visitation “host.”
If visitation at the Department is limited because of staffing or financial concerns, consider asking the court to order visitation at a community visitation agency. Find Colorado agencies, contact information, and pricing at:

22. Application for Visitation Argument
C.R.S. § (89): “ ‘Reasonable Efforts’ …..means the exercise of diligence and care throughout the state of Colorado for children who are in out-of-home placement…..In determining whether it is appropriate to provide, purchase, or develop the supportive and rehabilitative services that are required …to foster the safe reunification of a child with a child’s family…..the child’s health and safety shall be the paramount concern….”… -plus-
C.R.S. § (2)(b)(IV): “…[the] following services shall be available…visitation services for parents with children in out-of-home placement….”- plus-
12 CCR J sections 1, 2, and 6 : “…The visitation plan shall specify the frequency, type of contact, and the person(s) who will make the visit. At a minimum the plan shall provide the methods to meet….the growth and development of the child…-plus-
CDHS and Family Services Review 1/28/09: parents should be encouraged to attend doctor, physical therapy and other appointments…serves the dual purpose of additional contact and helping the parent learn appropriate care … (pp )

23. Litigating the Application for a Visit Host
Argue: Providing a means for your client to see her children is a “reasonable effort” in support of reunification and promotes the children’s health and well being in that current minimum practice only permits the child to see her parents the equivalent of two days per year and more frequent visits that are fun, supportive and mimic family life are more likely to help the child maintain her attachments. C.R.S. § (89)
Argue: DHS is responsible for providing “visiting services” for a child separated from parents by foster care. C.R.S. § (2)(b)(IV). Applicable regulations make clear that a visiting plan is supposed to meet the developmental needs of a child and should progress as reunification gets closer. 12 CCR J sections 1, 2, and 6.
Argue: CDHS has recognized that better visiting plays a key role in safe reunification, that visiting should be organized around typical parenting events ,and that people outside the caseworker should be accessed to be a resource to provide more visits.
Argue: Your client should not be compromised or deprived of the benefit of the law and recognized best practices because of scarce resources- visit hosts are win-win.

24. Seek Orders for Services
Services: when appropriate and client agrees:
Referral for substance abuse evaluation and monitoring
Mental health evaluation and treatment
Evaluations: need agreement for immunity

25. Admissions at PPP? Benefits Risks Local practice
The rationale for this is to fast track the case to the treatment plan phase and to provide services to the family as soon as possible, thereby speeding reunification.
Risks
The risk of making an admission to not just the petition for Temporary Protective Custody, but also to the petition in dependency and neglect is the rush to prejudge the facts prior to an investigation and completing discovery.
Local practice
It is important to know what is typical practice in your jurisdiction, but it is just as important to make a case by case decision about what process to follow.

26. PPP Motions Practice Possible written motions after PPP hearing
Motion for reconsideration, or motion for district court review if heard by magistrate
Motion for change of placement
Motion for deposition of witness
Motion for discovery
Motion to conduct kinship home study
Motion for physical or mental examination, CRE 37
Motion to exclude evidence at trial
Motion to redact hearsay within hearsay
Subpoena for author of a report C.R.S. § (2)

27. PPP Checklist Review Before the hearing: Petition Client interview
Contact information
Formulate a position

28. PPP Checklist Review During the hearing : ICWA Visitation
Service referrals
Kinship investigations

29. 10 Minute Networking Break
PPP Checklist Review
After the hearing  
Client Appointment
Service referrals
Visitations
Relatives
10 Minute Networking Break

30. PPP Hearing Exercise- Breakout Groups
Break into groups based on the sticker color on your nametag.
You will need Handout 7: D&N Intake and Handout 9: Conversations Prior to PPP Hearing

31. Client Counseling and overcoming communication obstacles
Building a Healthy Child Welfare System

32. Colorado Practice Standards
Colorado Standards for RPC
Training
Competent Representation
Communication
Documentation

33. Colorado Practice Standards, continued
Investigation: facts and timing
Agency Advocacy: services and placements
Client Location: keeping track
Cultural Awareness: impact on case success
Appeals

34. Client Location Several sources:
Federal parent locator service: (accessible by DSS)
Colorado Corrections: Need DOB or DOC number.
Criminal background checks:
To find any person:
ICON access at: x.cfm 

35. ABA Standards of Practice for Attorneys Representing Parents
General Principle:
Understand and protect the parent’s rights to information and decision-making while the child is in foster care.

36. Client Communication and Counseling
Introducing the client to the system:
What to cover:
Whether to contest the removal
Explaining process
Answering questions, particularly about visits
Relatives and other support
Native American heritage
What to save for another day
Fact investigation
Witnesses
Health care and mental health needs
Older children
Religion and culture
Advisement of rights: Watch for new English/Spanish video version

37. Client Communication and Counseling, continued
Ethical Issues:
Client with disability: Rules of Professional Conduct 1.14
See “Representing the Mentally Retarded or Disabled Parent
in a Colorado Dependent or Neglected Child Action,” 11 Colo. Law (1982).
Determining whether client has a disability: Can client make reasoned decisions? Can client appreciate consequences? Can client take positions consistent with his or her best interests?
Remedial action
Consult with family members.
Request a GAL for parent
Impact
Weigh the pros and cons
Signals to court that parent may not be able to parent

38. Relationship With The Client:
Advocate for the client’s goals and empower the client to direct the representation and make informed decisions based on thorough counsel.
Provide the client with contact information in writing and establish a message system that allows regular attorney-client contact.

39. Relationship With Client, continued
Meet and communicate regularly with the client well before court proceedings. Counsel the client about all legal matters related to the case, including specific allegations against the client, the service plan, the client’s rights in the pending proceeding, any orders entered against the client and the potential consequences of failing to obey court orders or cooperate with service plans.

40. Relationship With Client, continued
Work with the client to develop a case timeline and tickler system.
Act in a culturally competent manner and with regard to the socioeconomic position of the parent throughout all aspects of representation.
Take diligent steps to locate and communicate with a missing parent and decide representation strategies based on that communication.
Be aware of the unique issues an incarcerated parent faces and provide competent representation to the incarcerated client.
Be aware of the client’s mental health status and be prepared to assess whether the parent can assist with the case.

41. Investigation and Discovery
Conduct a thorough and independent investigation at every stage of the proceeding.
Review the child welfare agency case file.
Obtain all necessary documents, including copies of all pleadings and relevant notices filed by other parties, and information from the caseworker and providers.

42. Adjudication Hearing
Factfinding
Trial

43. Before the Adjudicatory Hearing
Advisement hearing
Often the chance to enter a denial or an admission to the petition
Sometimes advisement hearings, or 1st hearings, are used as control dates for return of service for noncustodial parents.
Formal advisement
Opportunity to make an admission
RPC should very carefully weigh the advantages and disadvantages for the client to making an admission at the first hearing.
Advantages include proceeding more quickly to the treatment plan and receiving services and perhaps reunifying the family faster.
Disadvantages: no time for an investigation, no time to obtain records and discovery, and no time to create any possible defenses.  

44. Admissions Generally Admission includes waiver of factual basis
Request C.R.S. § orders to protect client’s statements.
A C.R.S. § (2) order is a protective order that says no professional can be called to testify about anything the respondent said during treatment in a subsequent criminal proceeding.
Consider seeking an interim treatment plan to obtain services as quickly as possible

45. Informal Adjustment When parties are before the court,
But before a D & N petition is filed,
Court may authorize an informal adjustment
Parents must be advised and are entitled to counsel
Parents admit facts necessary to establish prima facie jurisdiction: the admission, however, may not be used later if a petition is filed.
Informal adjustment may not last longer than 6 months.
C.R.S. §

46. Deferred Adjudication (delayed dismissal or continued adjudication)
When parties are before the court
And a D & N petition has been filed
Court may authorize deferred adjudication (delayed dismissal)
Requires:
Admission by parent
Consent of all parties
Conditions – similar to treatment plan
6 months plus 6 months
Governed by C.R.S. § (5)

47. Admissions No fault. C.R.S. §19-3-102 (1) (e):
Some jurisdictions routinely use “no-fault” admissions, as a way for the court to gain jurisdiction over the parties and enable the court to order a treatment plan.
One parent’s no-fault admission cannot be used against the other parent.
Impact:
Court has jurisdiction over parties and the subject matter and can enter orders against all parties.
Homelessness should not be used as the sole basis to sustain a petition of dependency.

48. Admissions Injurious environment C.R.S. §19-3-102(1)(c)
Waive or stipulate to a factual basis: agree to address all issues in treatment
Lacks proper care through acts or omissions C.R.S. § (1)(b)
Beyond control of parent C.R.S. § (1)(f)
Admission by one parent not enough to adjudicate against the other parent. Other parent still has a right to a trial.
People in the Interest of A.M., 786 P.2d 476 (Colo. App 1989).

49. Settlement Conference
Not used in all jurisdictions
Who runs it
Family court facilitator or magistrate
Issues
Negotiated settlement
Possible treatment plan
Fathers
Agreements
Some jurisdictions allow these to be
immediately entered on the record.

50. Pretrial Conference Pretrial issues Witness lists Jury instructions
Not always a hearing:
Some jurisdictions use case management/trial management orders

51. Local Practice District Plan Required
Details how to handle dependency and neglect cases, including procedures for jury trials
Where to find it
rt/Committees/Committee.cfm/Committee_ID/8

52. Pretrial Motions Motions for summary judgment
Purpose: Moving party can avoid trial when, as a matter of law, no disputed facts exist and the other party cannot prevail. Court grants summary judgment when clear and convincing evidence shows no triable issue of material fact exists.
C.R.C.P .56(c) controls, except for timing
Motion must include affidavit
RPC must respond, with specific facts, also supported by affidavit, to survive MSJ

53. Pretrial Motions, continued
Motions in Limine
Exclude evidence at trial
Exclusionary rule from criminal law does not apply.
While hearsay is admitted at many hearings (except adjudication and termination), remember that privilege may apply.
Child hearsay exception: C.R.S. §
Discovery
Controlled by C.R.S. § – not C.R.C.P. 26!

54. Jury Trial
Colorado permits jury trials for adjudication hearings - C.R.S. §
Entitled to jury of 6
Must request when petition denied, or waived C.R.J.P. 4.3(a)
Three peremptory challenges C.R.J.P 4.3(b) plus 1 for an alternate
Challenges for Cause C.R.C.P. 47(e)

55. Timing
Non-EPP: Within 90 days from service of the petition if child over 6
EPP: Within 60 days from service of petition if
any child under 6

56. Burden of Proof On Department to show child is dependent or neglected
Non-ICWA: By a preponderance
ICWA: Clear and convincing, as to certain factors, with expert testimony

57. Purpose
Purpose of adjudication is to determine the status of the child
Adjudication not made “as to” the parent
People in Interest of P.D.S., 669 P2d 627 (Colo. App. 1983)
Interest and welfare of the child control. Fulton v. Martensen, 129 Colo. 125 (1954)

58. Causes of Action: Abuse
Physical Abuse
Defined at C.R.S. § : Physical abuse is an injury:
a) that is not justifiably explained,
b) that is explained by an explanation that is at variance with the injury, or
c) the circumstances surrounding the injury indicate that it was caused by non-accidental means.

59. Causes of Action: Abuse
Sexual Abuse: Defined in the criminal code at C.R.S. § (9)
Emotional Abuse is defined as identifiable and substantial impairment or risk of impairment of a child’s intellectual or psychological functioning or development. The parent must have inflicted the abuse or allowed another to abuse the child. C.R.S. § (1) (a) (IV).

60. Causes of Action: Neglect
Abandonment
When the parent leaves the child and does not intend to parent the child for 6 months or more.
Lacking Parental Care
Injurious Environment
Neglect: when the parent fails or refuses to provide the child w/ proper or necessary:
Subsistence;
Education;
Medical care; or
Other care necessary for child’s health, guidance, or well being
A. Parent surrendered custody for 6 months or more, with no intent to resume custody or failed to make legal arrangements for child’s care

61. Cause of Action: Neglect
No fault
Beyond control of parent
Abused child’s sibling
Evidence of abuse of one child is admissible and sufficient to sustain a petition as to another child.
Prospective Neglect
The theory is that past behavior is indicative of risk to the child and this is enough to sustain a petition.

62. Dismissal Court fails to sustain the petition Case dismissed
Child released to parent
Parent released from prior orders
Department must expunge its records

63. Review Checklist Before the hearing During the hearing
After the hearing

64. Motions, Evidence, Expert Testimony
Thomas L. Kennedy
District Court Judge

65. JANE ALWAYS SUFFERED FROM PRE-TRAUMATIC STRESS DISORDER ON THE FIRST DAY OF TRIAL

66. Introduction
Proceedings are civil in nature and are governed by Colorado Rules of Civil Procedure (C.R.C.P.)
Unless Colorado Rules of Juvenile Procedure (C.R.J.P.) specifically APPLY

67. Colorado Rules of Evidence
C.R.E Rules of evidence apply to all courts in the State of Colorado
The rules generally apply to civil actions (which includes D&N)

68. Colorado Rules of Evidence Exceptions
Exceptions to application of rules of evidence:
Preliminary questions of fact under Rule 104
Privilege, qualifications, admissibility of evidence

69. Exceptions, continued
Temporary Custody Hearings – C.R.S. § (3.6)(a)(II)v
Any evidence having probative value may be received by the court, regardless of its admissibility under the Colorado Rules of Evidence

70. 95% of the lawyers give the rest of us a bad name

71. Topics JUDICIAL NOTICE EXPERTS HEARSAY EVIDENTIARY OBJECTIONS MOTIONS
OTHER TIDBITS

72. Scenario 1
At the beginning of proceeding, county attorney asks Court to take judicial notice of Court’s entire file.
IS THIS PROPER?

73. Judicial Notice Rule 201 Not subject to reasonable dispute
Generally known within jurisdiction of Court
Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

74. Judicial Notice
So what items from the Court file are appropriate for judicial notice?
If judicial notice does not apply, are there other ways to get in reports or documents from the file?

75. Scenario 2
Caseworker offered as expert in child protection based upon a B.A. in psychology, 80 hours of DHS training, and 3 months of work experience at DHS; No prior expert testimony
Should the Court qualify the caseworker as an expert?

76. Scenario 3
Same caseworker qualified as expert, questioned by county attorney regarding statements of child victim of abuse about the identity of her abuser
ADMISSIBLE THROUGH EXPERT?

77. Scenario 4
Same caseworker questioned about results of U.A. for respondent parent disclosing presence of methamphetamines
ADMISSIBLE THROUGH EXPERT?

78. Scenario 5
Same caseworker questioned about statements made by respondent parent
ADMISSIBLE THROUGH EXPERT?
ADMISSIBLE TO BOTH PARENTS?

79. Scenario 6
Same caseworker offers opinion that it is in the best interests of the child to terminate parental rights
ADMISSIBLE?

80. Rule 702: Expert Witnesses
If scientific, technical, or other knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

81. EXPERT WITNESSES MR. SCIENCE STANDARD I KNOW MORE THAN YOU
WHAT I HAVE TO SAY WILL BE HELPFUL TO TRIER OF FACT

82. Rule 703: Experts
IF facts and data are the type reasonably relied on by experts in the field, those facts and data need not be admissible, BUT
Facts or data that are otherwise inadmissible shall not be disclosed to the jury UNLESS the court determines their probative value substantially outweighs the prejudice.

83. Rule 704
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact

84. People ex rel. M.M. 215 P.3D 1237 (C.A. 2009)
“When the underlying basis for the expert’s opinion is not accepted as reliable by the court, the expert’s testimony is inadmissible.”
Polygraph case
Judge specifically stated did not rely on polygraph results
REVERSED

85. People in Interest of J.E.B. 854 P.2D 1372 (C.A. 1993)
Social services experts may rely on reports and other info in case which might otherwise be objectionable hearsay
C.R.S. § , for purposes of “proper disposition”, reports may be considered by the court
If requested the party who prepared the report must be available to testify
Reports may also be considered in termination hearing

86. People in Interest of A.E.L. 181 P.3D 1186 (CA 2008)
Exclusionary rule does not necessarily apply in D&N
Balance the deterrent benefits against the societal costs of excluding relevant evidence
So drugs seized illegally from parent’s home are admissible in D&N adjudicatory trial

87. A.E.L., continued
Approved social worker’s qualification as an expert in child welfare
Weight to be given that testimony is up to the jury

89. Scenario 7
Visitation supervisor testifies that respondent father appeared to be under the influence of drugs during visit
ADMISSIBLE?

90. Lay Opinions Rule 701: rationally based upon perceptions Helpful
Not based on specialized knowledge
Examples: intoxication, handwriting, mental confusion, sound of voice

91. Authentication Rule 901: The document is what the witness says it is
How does the witness know?

92. Self-Authentication Rule 902: Public records under seal
Certified copies of public records
Certified domestic business records

93. Hearsay Definition
Out of court statement offered to prove the truth of the matter asserted

94. Hearsay Steps
IS IT HEARSAY?
IS THERE AN EXCEPTION THAT APPLIES?

95. What Hearsay Isn’t Prior Statements by witness
Admission by party opponent
Not offered to prove the truth, but to explain subsequent conduct or relevant for other purpose

96. Scenario 8
Babysitter testifies that 8 year old girl told her that step-dad had touched her private parts
HEARSAY?
ADMISSIBLE?

97. Scenario 9
Father testifies that 4 year old son comes homes crying and says that 19 year old neighbor hurt his bottom
HEARSAY?
ADMISSIBLE?

98. Scenario 10
Police arrive at scene of alleged domestic violence incident. Mom has a black eye and tells police that dad just tried to kill her
HEARSAY?
ADMISSIBLE?

99. Scenario11
On-call caseworker testifies that the department received a call on the hotline reporting dad abused his son who is at the hospital
Caseworker proceeds to hospital
IS HOTLINE STATEMENT HEARSAY?

100. Exceptions C.R.S. §13-25-129: Child Hearsay Applies to D&N proceedings
Victim of sex abuse and domestic violence

101. C.R.S. §13-25-129 Hearing out of the presence of jury
Time, content, and circumstances provide sufficient safeguards of reliability
Child either testifies or is unavailable and there is corroborative evidence of the act described
REQUIRES LIMITING INSTRUCTION

102. Child Hearsay Expert testimony RE: Child victims
SHRECK, 22 P.3d 68 (Colo. 2001): relevant, reliable, helpful
FASY, 829 P.2d 1314 (Colo. 1992): victim suffered from PTSD
WITTREIN, 221 P.3d 1076 (Colo. 2009): avoid testimony of child’s truthfulness

103. Hearsay Rules Rule 803: Whether or not witness is available
Present sense impression
Excited utterance
Then existing condition
Statements of purposes of medical diagnosis or treatment
Business or public records

104. Present Sense Impression
A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event.

105. Excited Utterance
A statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.

106. People in Interest of O.E.P. 654 P.2d 312 (CA 1982)
Statements of 2 year old victim of sex assault to care provider and social worker admissible as excited utterances
Stress-inducing event
Lack of time OR capacity to fabricate

107. People v. Vigil 127 P.3D 916 (Colo. 2006)
Statements to father and father’s friend admissible as excited utterance
Statement to doctor that “butt hurt” admitted; no reference to who committed the assault

108. Then Existing Condition
A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health
Circumstances indicate sincerity

109. Medical Diagnosis
Statements giving history or describing symptoms or general character of cause or external source “insofar as reasonably pertinent to diagnosis or treatment.”
WHAT ABOUT A STATEMENT TO L.C.S.W.?

110. Medical Diagnosis, continued
Oldsen v. People, 732 P.2d 1132 (Colo )
Child’s statements to social worker, psychologist, and physician that dad sexually assaulted her not related to medical diagnosis and therefore not admissible under this exception
Superseded by CHILD HEARSAY statute

111. Medical Diagnosis, continued
Identity of perpetrator of abuse generally inadmissible under this rule, unless member of victim’s family or household WHICH ARE reasonably pertinent to the physician’s recommendations
U.S. v. Joe, 8 F.3d 1488 (10th Cir. 1993)

112. Business Records Report or data in any form
Made at or near the time of event
Made by person with knowledge
Regular practice to make report
Testimony by custodian or other qualified witness

113. Business Records, continued
People in Interest of R.D.H., 944 P.2D 660 (CA 1997)
Admissibility of social services records under C.R.S. § and C.R.E. 803(6)
Also discusses confidentiality of treatment records under federal regulations 42 CFR 2.63(a)

114. Business Records, continued
People v. Buckner, 228 P.3d 245 (Colo. App )
Data or information automatically generated by a machine is not hearsay
Involved record of incoming call on a cell phone

115. Rule 804 Witness Unavailable Refuses to testify Lack of memory
Incompetent: Child witness

116. Rule 804 Exceptions Former testimony Statement against interest
Statement of personal or family history

117. Miscellaneous
C.R.S. § (1): Admissibility in criminal case of evidence derived from compulsory process in D&N
Requires notice and hearing
Burden on DA to prove prejudice to prosecution

118. Miscellaneous
C.R.S. § (2): Statements made to professionals pursuant to court order are inadmissible in criminal case
No notice or hearing

119. Miscellaneous
C.R.S. § (3): No admission by respondent in open court or by pleading admissible in criminal case except for impeachment

120. Miscellaneous C.R.S. §19-1-307: Discovery of DHS records
Presumptively confidential for most purposes
Except if necessary for determination of issue before court

121. Miscellaneous People v. Jowell, 199 P.3D 38 (C.A. 2008)
Discovery of DHS records governed by this statute, NOT Rule 16
Describes process to obtain in camera review

122. Residual Exception Rule 807 More probative than other evidence
General purposes served by admission
Requires prior notice to opponent

123. In the future, please say “I object”, rather than “that’s total bullshit”

124. Most Common Objections
Leading
No foundation
Hearsay
Argumentative

125. Objections C.R.E. 103 Requires: Timely objection
Reversal only upon showing that affects substantial right of a party

126. Objections, continued When to make: Exclude prejudicial evidence
Disrupt opponent’s presentation
Sometimes an objection highlights evidence

127. Objections, continued How to make: Objection (hearsay, leading, etc.)
Avoid speaking objections in presence of jury
STAND UP!!!!

128. More Miscellaneous Rules
RULE 611(C): Leading questions on direct are permissible to develop testimony

129. Rule 612
Refresh recollection
Document need not be admissible

130. Rule 613 Prior inconsistent statement
Call attention to time and place of prior statement
“The exact language of the prior statement may be given”
If admitted, extrinsic evidence not admissible

131. Motions PRE-TRIAL Discovery Summary judgment Experts- when to use
Motions in limine
Directed verdict

132. Privilege
C.R.S. § : Traditional Privileges “Shall not be a ground for excluding evidence resulting from a report…of child abuse
But does not constitute a complete waiver, Dill v. People, 927 P.2D 1315 (Colo. 1996)

133. Other Tidbits Negative inference from silence
Baxter v. Palmigiano, 425 U.S. 308 (1976)
Chaffin v. Wallain, 689 P.2d 684 (Colo. App )

134. JUVENILE COURT

135. CASE LAW UPDATE
Survey of Case Law