1 / 24

USING EXPERT WITNESSES IN AN ICWA CASE:WHY, WHEN, WHO AND HOW?

USING EXPERT WITNESSES IN AN ICWA CASE:WHY, WHEN, WHO AND HOW?. MAGGIE HUMM AND MELONY LOCKWOOD ALASKA LEGAL SERVICES CORPORATION BIA PROVIDERS CONFERENCE, DEC. 5, 2013. WHAT IS AN WITNESS?. A witness is a person who makes a statement in court about what he or she knows or has seen.

zody
Download Presentation

USING EXPERT WITNESSES IN AN ICWA CASE:WHY, WHEN, WHO AND HOW?

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. USING EXPERT WITNESSES IN AN ICWA CASE:WHY, WHEN, WHO AND HOW? MAGGIE HUMM AND MELONY LOCKWOOD ALASKA LEGAL SERVICES CORPORATION BIA PROVIDERS CONFERENCE, DEC. 5, 2013

  2. WHAT IS AN WITNESS? A witness is a person who makes a statement in court about what he or she knows or has seen. Merriam-Webster Online, www.merriam-webster.com

  3. TYPES OF WITNESSES. The Alaska Rules of Evidence identifies two types of witnesses: • The Expert Witness • The Lay Witness

  4. WHAT IS AN EXPERT WITNESS? • An Expert Witness is: • Any witness with knowledge, skill, experience, training, or education in a particular field and • Whose knowledge assists the trier of fact in understanding the evidence or determining a fact In issue. Alaska Rules of Evidence, Rule 702(a)

  5. WHAT IS A LAY WITNESS? • A lay witness is • Any witness that is not testifying as an expert and • Whose testimony is limited to opinions or inferences which • Are rationally based on the perception of the witness and • Helps the trier of fact(judge)understand the evidence or determine a fact in issue. Alaska Rules of Evidence, Rule 701

  6. THE TRIBAL EXPERT WITNESS Someone with knowledge about the culture, customs, values, traditions, and beliefs of your tribe based on his or her experience, education, skills, and training. Whose knowledge can help a trier of fact(the judge) understand the evidence before him or her or determine a fact in issue.

  7. USING AN EXPERT WITNESS FOR ICWA CASES: WHY? • Make a record(Present evidence in open court so that it is available for consideration by the trial judge and by appellate courts) • Teach the decision maker about the culture of your Tribe. (Don’t assume the judge understands your Tribe’s customs!) • Make a record! • Actively involve the voice of the Tribe in the case. • Make a record!

  8. USING AN EXPERT WITNESS FOR ICWA CASES: WHEN? • When to use an Expert Witness: • determining “serious emotional or physical harm,” § 1912(e) and 1912(f) • deviating from placement preferences, § 1915(d) • defining Indian Custodian, § 1903(6) • defining extended family member, § 1903(2) • determining whether there is good cause not to transfer a case to tribal court, §1911(b) and CINA R. 23

  9. USING AN EXPERT WITNESS FOR ICWA CASES: WHEN? Under ICWA §1912(e) No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

  10. USING AN EXPERT WITNESS FOR ICWA CASES: WHEN? Under § 1912(f) A court may not order a termination of parental rights unless the court’s order is supported by evidence beyond a reasonable doubt, including the testimony of one or more qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

  11. USING AN EXPERT WITNESS FOR ICWA CASES: WHEN? §1915 Foster-care and Pre-adoptive and Adoptive placement preferences (d) provides: the standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.

  12. USING AN EXPERT WITNESS FOR ICWA CASES: WHEN? • Determining who is an Indian Custodian • § 1903(6): • Any Indian person who has legal custody of an Indian child under tribal law or custom or • Under State law • Or to whom temporary physical care, custody, and control has been transferred by the parent of such child • Determining who is an extended family member • § 1903(2) • Defined by Tribe’s law or custom • In the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first of second cousin or stepparent.

  13. USING AN EXPERT WITNESS FOR ICWA CASES: WHEN? • Deciding whether there is/isn’t good cause not to transfer a case from state court to tribal court ( §1911(b) and CINA R. 23) • 1911(b) of ICWA and CINA Rule 23 enables the child’s tribe, parent, or Indian custodian to petition the State Court to transfer the case to Tribal Court. • Upon receipt of a petition to transfer the State Court must transfer unless either party objects, the Tribal Court declines jurisdiction, or the State Court determines that good cause to the contrary exists for denying the Transfer

  14. USING AN EXPERT WITNESS FOR ICWA CASES: WHEN? • Is there good cause not to transfer? • No existing tribal court • Petition to transfer was filed when state case was at an advanced stage • Child 12 years or older objects to the transfer • The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or witnesses • The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe.

  15. GROUP ACTIVITY: 1 • Discuss with the people at your table examples when the State and/or OCS or any other organization has misunderstood or misinterpreted something about your culture, custom, traditions, or community. • Write your list of examples on the paper at your table. Discuss with the people at your table: • How could an expert witness help change the misperceptions and misunderstandings?

  16. USING AN EXPERT WITNESS FOR ICWA CASES: WHO? • A member of the Indian Child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices. • Any expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe. • A professional person having substantial education and experience in the area of his or her specialty. GUIDELINES FOR STATE COURTS; INDIAN CHILD CUSTODY PROCEEDINGS

  17. USING AN EXPERT WITNESS FOR ICWA CASES: WHO? • Someone with credibility: • Knowledgeable about the beliefs, norms, customs, and traditions existing in his/her tribal community and able to educate a non-native about these. • Others in the community would share the expert’s views about the community’s cultural beliefs, norms, customs, and traditions. • Doesn’t have a history of committing crimes against children or crimes involving dishonesty. • Doesn’t have any other history involving harm to children.

  18. USING AN EXPERT WITNESS FOR ICWA CASES: WHO? • Other considerations • Comfortable being asked questions. • Can handle being challenged on cross-examination. • Respected by members of his/her community.

  19. GROUP ACTIVITY: 2 List three people in your tribe who would/could be an expert witness in an ICWA case. Why? • Remember to consider the person’s knowledge, skill, experience, training, and/or education.

  20. USING AN EXPERT WITNESS FOR ICWA CASES: HOW? • Prepare your Expert Witness for the role he/she will play. • Make sure he/she understands what the issues are. • Make sure he/she understands the importance of his/her testimony. • Make sure he/she is prepared for direct examination and cross-examination (understands both the Tribe’s and state’s position on the issue(s)). • Practice and Roll play.

  21. USING AN EXPERT WITNESS FOR ICWA CASES: HOW? • Under CINA Rule 8(d) –If you intend to call an expert witness at trial you must give notice to all parties. (1) Retained Experts (no involvement with family) - The expert’s curriculum vitae; and - A written summary of the substance of the anticipated testimony of the expert, the expert’s opinion, and the underlying basis of the opinion. (2) Other Experts (involvement with family) - name - any report created by expert CINA Rule 8(d)

  22. USING AN EXPERT WITNESS FOR ICWA CASES: HOW? • At Trial: • Qualify your expert witness: • Knowledge • Skills • Experienceand/ or Education • Offer your witness as an expert

  23. Summary • What: Specialized testimony about your Tribe and its culture • Why: Help the decision maker make the right decision • When: assessing risk, placement, defining roles, transfers • Who: a knowledgeable, credible, respected member of the Tribe • How: give notice and prepare your expert

  24. ALSC Offices Anchorage (888) 478-2572 Barrow (855) 755-8998 Bethel (800) 478-2230 Bristol Bay (888) 391-1475 Juneau (800) 789-6426 Fairbanks (800) 478-5401 Ketchikan (877) 525-6420 Kenai (855) 395-0352 Kotzebue (800) 622-9797 Palmer (907) 746-4636 Nome (888) 495-666

More Related