Anastasia Garcia, the Guardian Ad Litem for Gabe Shapiro, believes that hearsay should not apply to people in her profession. She even proposed the idea in a lawyer's journal.
Unshackling Guardians Ad Li... by mikekvolpe
"Commentators courts, and state legislators have reached an almost universal consensus recognizing the pivotal role played by Guardian ad Litem (GALs) in the administration of justice by protecting the vulnerable," Garcia begins in an essay from 2016.
Garcia, in the essay recognized the role of the hearsay rule but believed that GALs are so critical they should be exempt.
"The interests served by the hearsay rule, ensuring that inherently unreliable statements do not come into evidence, is critically important. However, this needs to be weighed against the necessity of the Guardian to bring to light for the Court, details of an investigation from collateral sources who are (sic) available to testify. This factor has been considered by some Courts."
She continues, "Moreover, in balancing these competing interests the fact that family cases are always heard by a Judge militates heavily in favor of admitting the GAL reports."
These GAL reports, produced by people like Garcia, are often a collection of interviews by people close to both the mother and father.
Often times, those interviewed for these reports have complained that their interviews were mischaracterized or otherwise twisted.
Chris Mackney is the subject of my book "Bullied to Death: Chris Mackney's Kafkaesque Divorce."
In that case, the custody evaluator, Stanton Samenow, who took on a similar role to a GAL claimed Mackney had no friends despite interviewing at least three of Mackney's friends. Mackney was in his 40s at time, and these friends, including Rich Ware, had been his friends since college.
But Garcia, like many court actors, has the full faith and confidence in the court.
"During a non-jury trial, it is presumed that the court is able to sift the wheat from the chaff and select only the legal evidence." Garcia quotes from a court decision.
Indeed, Garcia, like this decision, believe that the reason for the hearsay rule is to protect the simpletons who normally make up a jury. Since judges, who Garcia thinks are much smarter than juries, preside over custody issues, they will be able to spot the good hearsay from the bad.
She continues, "There is a way to address concerns about admitting potentially 'unreliable' statements through Guardian reports. As the current GAL statute requires the filing of a Guardian report 20 days before a final hearing if the time required for the filing of a report is extended to lets say 60 days, any lingering concerns about unreliable statements unduly influencing the court's decision-making process can be conclusively laid to rest."
In other words, give the lawyers enough times and they can re-interview every witness and make sure to challenge all the unreliable statements. Except, this means the lawyers are spending all their time figuring out if the GAL report has improper hearsay statements, rather than making sure to prepare for the case.
Ms. Garcia and I have wildly differing philosophies on GALs; I think GALs should be eliminated, while she thinks they should be given even more power.
Please find the interview with Gabe Shapiro below. Starts at approximately 38 minutes.
No comments:
Post a Comment