The Rules of Evidence in Representing Children - ABA YLD 101 Practice Series

By Gloria M. Bruzzano

During child welfare proceedings grasping the rules of evidence is essential to proving a case of child abuse or neglect. As a young lawyer being able to prepare witnesses with their testimony and understanding the admissibility of evidence and certain points of the proceeding is extremely important. Witnesses and attorneys should be aware of hearsay and the exceptions to it. Please refer to Federal Rules of Evidence 801 (c).

The following is a brief overview of the common exceptions to the hearsay rule applied to child welfare proceedings:

  • The excited utterance exception:
    This exception allows an adult to testify regarding spontaneous statements that the child made to him/her referencing the abuse or neglect which took place close in time to the occurrence while the child was still in a state of excitement.
  • Statements made in the course of medical diagnosis and treatment
    When a child makes statements to a medical professional who is treating him/her the assumption is that the child is telling the truth thus those statements will be admissible to the court.
  • The tender years exception
    If an adult witness has had conversations with a young child victim the judge may use discretion and allow the adult witness to testify as to what the child said.
  • Business records
    This exception is very common as records kept by caseworkers, therapists and other mental health professionals are typically admitted under this exception. In order to assert the exception the case records and or reports must be proven to be regularly and systematically kept within the course of business.
  • Reliable Statement Exception
    Once again the judge may use discretion when a statement if viewed to be inherently reliable.
  • Expert Testimony
    An expert witness is allowed to provide opinion testimony based on her opinion on hearsay. This opinion is not to prove that the hearsay is true.

Various jurisdictions have additional hearsay exceptions to the Federal Rules. The young lawyer should of course familiarize herself with the state specific rules of evidence and prep the witnesses accordingly.


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About the Author

Gloria M. Bruzzano, Esq., serves as the 2006-2007 American Bar Association, Young Lawyer's Division Children and the Law Chair and as the 2006-2007 ABA, YLD representative to the Coordinating Council of Unified Family Courts. She has worked on over 200 child abuse and neglect cases as Special Assistant Corporation Counsel for the Commissioner of the Administration for Children's Services (ACS) in the South Bronx and in Manhattan. After two and a half years working for ACS, Ms. Bruzzano will be leading as child protection attorney for the nonprofit Sanctuary for Families, also in Manhattan, specializing in child welfare cases involving mothers who are victims of domestic violence. She currently serves on the NYC Mayor's Child Abuse Task Force, The Commercially and Sexually Exploited Children's Workgroup and is admitted to practice in both New York, New Jersey and Federal District Court of New Jersey.

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