This legal guide describes a novel fraud making its appearance in integrated domestic violence courts. The entire procedure is done at bench side off the record. The only matters that appear on the record is the judge's decision and order as to issues presented at bench side.
1
Receive Important Report the Day of an Appearance
Blindsiding the defense is the first step in this fraud. Typically, an important report appears in court the day of the appearance. This deprives the defense of being able to prepare for its contents. Typically, the court reporter makes a record of the proceedings before the judge, but here, all parties sit silently as the report is read. So there is silence in the record for that portion of the appearance.
2
Called to Bench Side
Typically, the proponent of the report, the Law Guardian or Child's Attorney, asks for a bench side conference.
This means all lawyers go to the bench and confer with the court off the record. Typically, only administrative and ministerial discussions happen at bench side. With this fraud, however, the judge allows the case and its merits to be argued off the record. The attorney for the child may find a passage in the report that she feels is important for further investigation. Defense cannot properly respond because even if they had received the report days prior, there is a blockage to the flow of information that allows a cogent confrontation of evidence against the defendant.
For example, a child may have reported an assault. There is no way to corroborate this statement as any investigator is not required by law to record conversations with children. So, a case can be fabricated using the words of a child.
3
The Judge
Typically, the judge will have a copy of the report and will be reading it. This violates rules of evidence because the report is hearsay until it is properly admitted into evidence. This means putting the writer of the report on the stand, swearing him in and asking him whether he wrote the report. Then, the cross examiner asks leading questions to test the contents' accuracy, reliability, relevance and materiality.
In the bench side scenario, none of this happens. The judge simply gets a copy of the report from his bailiff and proceeds to read it while the law guardian runs the proceeding based upon its contents.
For example, the law guardian may say that the child's statement about how the father hit the mother with a rolled fist to a case worker was corroborated by the child's similar statement to the law guardian. No hit may have taken place, but the child's words could be manipulated and used to authenticate the case against the father.
4
The Outcome
The judge will follow the law guardian's judgment. So, if a forensic investigation is needed according to the law guardian, the judge will grant that. If the father cannot obtain visitation with his children, the judge will deny that to the father.
5
Impact Upon Justice
This is double fisted blow to the father. First, there is no way to prepare for the sudden production of an otherwise unfairly prejudicial report from an outside agency. Secondly, there is no way to appeal the judge's decision because all of its reasoning and information input was deliberately shielded from the record.
This makes this fraud into a special breed. It requires a judge's total complicity to accept hearsay documents and read them quietly. The judge has to allow facts of circumstance to be lost because of the lack of a record.
This is a big one and it must be eliminated.
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