While the purported intent of the legislature to dispense with the rules of evidence and allow otherwise inadmissible hearsay evidence appears dubious, it is conceded that it is settled law that GAL reports are admissible despite being strewn with evidence considered insufficiently reliable by virtually ever other court, in any other context. An objection is hereby made that allowing evidence that does not meet traditional notions of evidentiary reliability violates the Due Process clause of the United States Constitution (an unsettled issue), and its counterpart in the Massachusetts Constitution.
But even under the common law as it has developed, the use of GAL reports has its limitations. As the Massachusetts Supreme Judicial Court has stated:
In a custody proceeding, a judge makes a determination as to what is in the best interests of the child on the basis of facts presented at trial as well as facts gathered by the court-appointed investigators. The need for accurate, objective information is of foremost importance in this process. In order to determine adequately the reliability and accuracy of a report, we believe that, as a matter of sound judicial policy, the parties should have the opportunity to rebut the report, including the right to cross-examine the investigator. To promote a fair fact-finding process, cross-examination of the investigator should be permitted, subject to the rules of evidence, so that the credibility, bias, or prejudice of the investigator may be tested and the weight to be given to his report may be determined. This rule should prevail whether or not the parties consent to the investigation.
Gilmore v. Gilmore, 369 Mass. 598, 604-605 (Mass. 1976).
Gilmore was one of the earlier cases that allowed the report, but conceded that there may issues with hearsay. Here, the hearsay declarant was the GAL himself. But while traditionally one could not use a report and had to ask the witness himself unless there was some exception to the hearsay rule (thus showing reliability), it was acceptable to use a GAL report so long as the hearsay declarant, here the GAL, was available. This assured the “need for accurate, objective information” that the Gilmore court thought so important. A concession was made to the normal rules of hearsay evidence—put to protect the integrity of the trial, the out of court hearsay declarant (the GAL himself) had to be made available and subject to cross examination. Gilmore and its progeny, while carving a small exception in traditional hearsay rules, certainly did nothing to allow unfettered access to hearsay statements that cannot be rebutted.
As time went on, not only was the report by the GAL not barred by the hearsay exception, but also hearsay evidence used by the GAL himself. The Massachusetts SJC has ruled, “Guardian ad litem reports [themselves] may properly contain hearsay information.” Adoption of Ga., 433 Mass. 62, 68 (Mass. 2000). Thus you had hearsay (the GAL report) within hearsay (a statement made by an individual reported in the GAL report). Eventually, otherwise inadmissible hearsay upon inadmissible hearsay upon inadmissible hearsay upon inadmissible hearsay (repeated ad nassium) was to be admissible in a GAL report. It may have been a mistake to allow no end to the totem pole of hearsay evidence that may be allowed in GAL reports, but this does appear to be the law. It has also been held that GAL reports “have been held admissible even when multiple level hearsay (and clinical evaluations) have been contained therein.” Adoption of Ga., 433 Mass. 62, 68-69 (Mass. 2000).
However, this comes at a price. The safeguard for allowing all this material that has from the beginning of American jurisprudence been inadmissible is that there should at least be an ability to rebut the statements of the hearsay declarant. This does not mean just the ability to cross-examine the GAL, where the GAL is the hearsay declarant. It also includes the ability to rebut by cross-examination each level in the totem pole of hearsay statements included in the GAL report. Were this not to be the case, law would disintegrate into a star chamber of accusations without any ability to rebut. The adversarial system of justice (where the truth is brought out by two competing parties) would be disintegrated into an inquisitional form (where the state does its own inquisition and the parties do not have the opportunity to put forth their best arguments). Traditional notions of fair play and substantial justice demand that one party cannot have access to evidence that the other party cannot. This problem is particularly acute when the other party is the state itself, in the form of a GAL report.
Those that want to introduce a GAL report have a duty: “[T]he guardian ad litem [must] be available to testify at trial and that the source of the material be sufficiently identified so that the affected party has an opportunity to rebut any adverse or erroneous material contained therein.” Adoption of Ga., 433 Mass. 62, 69 (Mass. 2000). A meaningful opportunity adverse or erroneous material includes not only testing the GAL herself, but also testing the reported hearsay statements the GAL made in her report. The foolery is almost too obvious for explanation—were the rule otherwise, GALs could interview individuals that are themselves inaccurate (due to inability to observe, bias, hostility, or mendacity) and there would be no way to rebut the evidence.
As such, we object to the use of all testimony which is based upon evidence where there is no opportunity to rebut. Specifically, we ask for a ruling that unless any statement made by any party be made available, it be stricken from the GAL report. These statements include, but are not limited to:
[Here set forth the names of all witnesses listed in the GAL report, and also list children’s names.]
Other Massachusetts Courts vindicate the viewpoint that there must be an ability to cross-examine hearsay declarants in GAL reports:
An additional grievance which the parents have with the Hunt reports is that they include statements made by third persons to individuals whom she interviewed in the course of her investigation, i.e., totem pole hearsay. That the report of an investigator appointed under § 24 may contain hearsay is settled. Custody of Jennifer, 25 Mass. App. Ct. at 245, and cases there cited. The cases draw no distinction between levels of hearsay. It stands to reason that an investigator will talk to neighbors, teachers, social workers, mental health workers, relatives, and friends, and some of those persons will describe what they heard from third persons. The remedy is not to attempt to purge secondary hearsay from § 24 reports but to afford an opportunity to refute the investigator and the investigator's sources through cross-examination and other means. See Gilmore v. Gilmore, 369 Mass. 598, 604-605 (1976); Custody of Two Minors, 19 Mass. App. Ct. 552, 559 (1985). See also Duro v. Duro, 392 Mass. 574, 580 & n.9 (1984). The parents do not complain that their rights of examination were foreclosed in any way.
Custody of Michel, 28 Mass. App. Ct. 260, 266 (Mass. App. Ct. 1990). Note the Custody of Michel court’s use of Gilmore (the GAL in a custody case) to buttress the proposition that “The remedy is not to attempt to purge secondary hearsay from § 24 reports but to afford an opportunity to refute the investigator and the investigator's sources through cross-examination and other means.” The argument that the Gilmore court suggested that the “opportunity to rebut the report,” only including the right to cross-examine the GAL investigator and not the GAL investigator’s sources proves too much. Accord, Guardianship of Pollard, 54 Mass. App. Ct. 318, 323-324 (Mass. App. Ct. 2002) (holding GAL's report is ordinarily admissible and its use at trial should be anticipated. Such reports may contain hearsay, and "all that is required is that the guardian ad litem be available to testify at trial and that the source of the material be sufficiently identified so that the affected party has an opportunity to rebut any adverse or erroneous material contained therein.). Obviously, “the opportunity to rebut” if limited only to the cross-examination of the GAL and not the hearsay evidence that she relied upon would only amount to a hallow promise. It would even amount to an equal protection violation wherein the state would have access to certain types of evidence, and the parties who have a fundamental liberty interest in the society with their children would have none.
Other Massachusetts appellate courts have expressed their concern over the lack of the ability to cross-examine hearsay in investigator reports, including that of children, if the objection is clearly raised:
Hearsay statements of the children. At issue in this case was the admissibility in evidence of a portion of the guardian ad litem's report which contained statements made by the daughter to a physician that her father sexually abused her. Although the daughter never testified in this case, the judge made a finding that the daughter was abused by her father. As a result, the mother and father argue that the judge must have relied upon those statements for the truth of the matter and that because the child did not testify the judge could not rely on such statements without making certain required findings under G. L. c. 233, § 82. See Adoption of Carla, 416 Mass. 510, 514 & n.3, 623 N.E.2d 1118 (1993). The parents, however, overlook the fact that the daughter's statements of sexual abuse were contained in the G. L. c. 51A report admitted as an exhibit and a summary of the c. 51A report contained in the guardian ad litem's report, to which no objections were lodged. Because the judge's finding of sexual abuse could have rested upon this evidence admitted without objection, we conclude that any error in using the daughter's statements to a physician set forth in the guardian ad litem report as proof that her father sexually abused her would be harmless.
Adoption of Sean, 36 Mass. App. Ct. 261, 265 (Mass. App. Ct. 1994) The adoption of Sean court further explained:
Denial of request to call daughter as a witness. At the outset of the trial, the father moved to have his daughter appear as a witness for the ostensible purpose of refuting her statements that he had sexually abused her. The judge denied the motion during the trial on the grounds that there might be a problem in declaring the child competent to testify and that the probative value of her testimony might be outweighed by the harm to the child. Before so ruling, the judge did not conduct a hearing to determine whether the child was competent or was unavailable to testify. This was error.
HN2"Due process and fundamental fairness require that a parent should have the opportunity to rebut the evidence against the parent." Adoption of Carla, 416 Mass. at 514. The judge's reliance upon the hearsay statements of the child contained in the guardian ad litem's report and the c. 51A report of sexual abuse by her father without conducting a hearing to determine the child's unavailability as a witness under G. L. c. 233, § 82, denied the father the opportunity to rebut effectively this evidence. See id. at 514.
Adoption of Sean, 36 Mass. App. Ct. 261, 266 (Mass. App. Ct. 1994).
The unfairness is evident. Here, through the GAL, Ms. Green has been able to enjoy the benefit of numerous statements of individuals that Mr. Hunter cannot cross-examine. There is no justice in this, and it offends traditional notions of fair play and substantial justice. “Although the Confrontation Clause [of the United States Constitution] is not specifically applicable in civil cases, the right of a civil litigant to cross-examine the witnesses against him has historically been considered a fundamental component of a fair trial, and it may, in some circumstances, be a required element of procedural due process.” Smallwood v. State Dep't of Human Resources, 716 So. 2d 684, 689 (Ala. Civ. App. 1998); Accord; Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969); Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963); In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948). “There is no right to confrontation under the state and federal confrontation clause in civil proceedings, but such a right does exist under the due process clause.” People v. Otto, 26 Cal. 4th 200, 214 (Cal. 2001). Other states have applied this rule in the domestic relations context, where the right to companionship of one’s child is jeopardy:
However, in Adoption of Mary, 414 Mass. 705, 710, 610 N.E.2d 898 (1993), the court stated that, "Due process concerns and fundamental fairness require that a parent have an opportunity effectively to rebut adverse allegations concerning child-rearing capabilities, especially in a proceeding that can terminate all legal parental rights." See also Duro v. Duro, 392 Mass. 574, 580, 467 N.E.2d 165 (1984) (judgment awarding custody of two minor children was reversed because judge had received private oral reports from a probation officer, and parent had no opportunity to cross-examine probation officer). n6 Any opportunity to rebut such testimony is lost when the judge allows a witness to testify in a private session, such as occurred here.
White v. White, 40 Mass. App. Ct. 132, 141-142 (Mass. App. Ct. 1996). What is the difference between testimony in a private session, and testimony in a GAL report wherein the declarant cannot be cross-examined?
Due process concerns and fundamental fairness require that a parent have an opportunity effectively to rebut adverse allegations concerning childrearing capabilities, especially in a proceeding that can terminate all legal parental rights. See Duro v. Duro, 392 Mass. 574, 580 (1984); Custody of a Minor (No. 2), 378 Mass. 712, 723 (1979); Custody of Tracy, supra at 485-487; Custody of Michel, 28 Mass. App. Ct. 260, 265-266 (1990). J.B. had ample opportunity to rebut the evidence referred to in the reports and to test the reliability or accuracy of the investigator.
Adoption of Mary, 414 Mass. 705, 710 n3 (Mass. 1993) Mr. Hunter cannot rebut the evidence of the children (it is this courts policy not to let children testify), and many of the other witnesses are out of the state and cannot be subpoenaed. Alternatively, Mr. Hunter wishes to be able to cross-examine the children if the court insists on the use of the children’s statements by the GAL.
Confrontation of adverse evidence and adverse witnesses in civil cases has held to be an element of due process when substantial interest, such as the right to practice one’s profession, are in question. These are rights far less important than the right to custody of one’s children. As stated in by the United States Supreme Court Willner v. Committee on Character & Fitness, 373 U.S. 96, 103-104 (U.S. 1963).
We have emphasized in recent years that procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood. See Greene v. McElroy, 360 U.S. 474, 492, 496-497, and cases cited. That view has been taken by several state courts when it comes to procedural due process and the admission to practice law. Coleman v. Watts, 81 So. 2d 650; Application of Burke, 87 Ariz. 336, 351 P. 2d 169; In re Crum, 103 Ore. 296, 204 P. 948; Moity v. Louisiana State Bar Assn., 239 La. 1081, 121 So. 2d 87. Cf. Brooks v. Laws, 208 F.2d 18, 33 (concurring opinion). We think the need for confrontation is a necessary conclusion from the requirements of procedural due process in a situation such as this.
Confrontation is paramount when the custody of one’s children is on the line. The care and custody of one’s child is too fundamental a right to be parsimonious on procedural Due Process that may jeopardize that right, even if the context is civil and not criminal. As stated by the United States Supreme Court, “Confrontation and cross-examination under oath are essential, if the American ideal of due process is to remain a vital force in our public life. We deal here
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