Commentary on Legal Ethics #1 based on the esteemed Judge William Adams, James Ehler, Marie Haspil.
The law is not necessarily what it seems. The law is not so much what the statutes, constitutions, cases, and rules say. Rather, it is what actually happens in the Courts and other tribunals. This commentary will address legal ethics from this perspective. This commentary will focus on a few ethical super stars specifically James Ehler and Judge William Adams.
Child Testimony
Clearly, child testimony is ethical in some contexts but not others. This is called situational ethics. Alternatively, this is called asymmetric ethics. The trick is knowing when child testimony is ethical and when it is not. The written rules, statutes, and cases are not very helpful.
Rules, Statutes, and Cases
The rules clearly allow child testimony unless the child is incompetent. The applicable case law establishes a very low standard of competency. For example, in one case, a man was sentenced to life imprisonment based on the testimony of a child still in diapers (2 years old at the time of the alleged incident and 3 years old at the time of trial). This child had a mental handicap. The child was held competent to testify because he knew colors, his name, etc. Thus, according to this case, the standard for child competency is low. Essentially, absent extreme incompetency, the fact finder decides what weight to give the child's testimony. Of course, the Courts, CPS, Police, and others regularly believe children.
Real World Application of the Rules
It is evident though that the rules and the case law cannot be properly applied to all situations. For example, in the Jennifer Flores-Lamb case, her child was nearly 6 years old. He was highly intelligent and honest according to all witnesses who knew him. He told his mother that certain lawyers asked him to lie about her and say she touched him. Also, they told him to lie and say he saw her and her lawyer in bed together. He gave specifics like where this happened and when it happened. The child's statements to the extent possible were corroborated by independent third party witnesses.
For example, this happened at a restaurant, and the waiters at the restaurant confirmed the child was their with his father and the appropriate number of additional adults as described by the child, even at the table the child said. The child knew things he could not have know absent his statements being true. There was no contrary evidence other than conclusory denials by the people involved. The imminent expert on ethics Judge William Adams held it was frivolous for this mother and her lawyer to believe the child. The ethical gurus James Ehler and Marie Haspil concurred.
Clearly, this case cannot be distinguished from the more typical cases based on the language of the rules. This is an example of asymmetric ethics or situational ethics. Although the distinguishing factors have never been identified by Judge William Adams, James Ehler, or Marie Haspil, an analysis of these and other situations reveals the factors. It is impossible to set for the applicable factors and weights precisely, but the most important factors are:
The identity of the person accused of misconduct by the child.
If the child identifies a generic member of the public as guilty of misconduct, then the child's statements are near gospel, and this person is likely to be arrested and jailed on a high bond (as Judge William Adams acknowledges).
He may or may not have a chance to respond to what the child said, but even if he does have a chance to respond his statements will likely receive little weight. He is just given opportunity to respond hoping that his words will be useful in later prosecution of him by the State.
On the other the other hand, if the person accused of misconduct is the Judge's personal lawyer, then it is frivolous to believe the child and the person relying on the child's statements will be hurt. Be careful, it is not always known who is the judge's personal lawyer, and don't expect the judge or his lawyer to disclose this.
The identity of the person asserting the child's statements.
If you are lawyer seeking to take a child from a parent, you may assert a child's statements. You may rely on hearsay, and you can be vague. You are not required to have any substance to your assertion other than to claim that the child said the accusation. You can usually take full control of the child without a full hearing (an ex parte hearing will usually
be sufficient at least for a while and if the accused has little money forever).
If you are a lawyer who's client is being set up for a false accusation of sexual misconduct, you can never believe the child's statements. It is frivolous.
It doesn't matter than you have thoroughly investigated and that the child has repeatedly stated what happened or that all the circumstances and evidence support the child.
This rule overlaps with rule 1. If the lawyer who asked the child to lie is the judge's lawyer, then you really cannot rely on the child's statements (it is really frivolous).
A simple rule of thumb here is that child statements can be used to hurt people but not to help them. A child's statements will put you in prison but will never keep you out of prison. If a child seeks to tell the truth that his parent is not bad, the child can never be believed.
Don't ever get deluded into thinking that truth or justice has anything to do with anything. It might with some judges but you cannot count on this. It is important to know not only what factors are relevant but what factors are not:
1) The child's competence, intelligence, honesty, and coherence.
Actually, the Judge is likely to make a decision without ever meeting the child or watching videotapes of his statements. At this point, the Judge says something like All children are fantasize (there is no need for any evidence that this child did).
2) The importance of the matters at issue.
It doesn't matter whether the child's statements relate what he had for lunch at school or the fact that he is being asked to lie in a way that could put you in prison.
The factors important are who you are and who is accused.
If you are the target (the child says he is being asked to accuse you of sexual misconduct), you are in trouble. There is no hope just enjoy the ride. Prison food isn't that bad.
Practice Pointers
If you are a lawyer, you can use child statements if you work for the government whether the prosecuting attorney, CPS, or the police. Otherwise, unless you are friends of the judge, don't risk it. It is just too dangerous. This is not a good time to care about your client. Let your client go to prison if your client is the target, save your own you know what. Don't feel guilty if your innocent client goes to prison (or loses their child) based on a lie. You didn't make the law. You are just a cog in a large immoral system and don't ever think you are more.
Remember, people are not entitled to representation anymore. They are just entitled to the appearance of representation. They wants you to "roll over" and you will be rewarded for doing that.
If you are the client and your child is being asked to lie in ways that could send you to prison, you should understand if your lawyer refuses to represent you in a meaningful way. Your lawyer is probably familiar with Judge William Adams, James Ehler, and Marie Haspil. He knows that he will be attacked if he actually represents you. He cannot be expected to throw himself under the train on your behalf.
It is clear to him that he is not allowed to really represent you. He is not supposed to believe you or your child. He is supposed to just pretend to represent you. He is not supposed to have a conscious. If you opposing counsel works for the government or is the Judge's friend, you are supposed to go to prison. Just accept it. Remember, how the contestants in "Hunger Games" accepted their fates without much objection. You do the same.
You should pack your toothbrush, report for prison when instructed, and just be happy that Judge William Adams doesn't beat you. Consider yourself lucky if you just lose your child.
0 comments