On March 31, 2010, the New Jersey Supreme Court issued its ruling in Division v. M.C. III., reversing the Appellate Division’s pro-defense ruling in October 2008 that certain hearsay documents are not permissible to be entered into evidence in DYFS matters.
The high Court noted that they cannot tell from the trial record whether or not the Screening Summary or the medical record completed by the treating physician should have been admissible in evidence — the fact that the defendant’s attorney did not object barred the defendant from objecting on appeal. Nothing particularly shocking there.
However, the Court went on to provide guidance in future proceedings. As to the Division’s Screening Summary, the Court said DYFS can satisfy the burden of admitting this evidence by taking testimony that the Screening Summary is kept in the ordinary course of business. Justice Wallace also alludes to this notion that had defense counsel objected, DYFS could “shore up” its record by producing a witness to testify. Of course, oftentimes objections to DYFS evidence are not made until after the Division has rested its case, causing one to query whether the Court is suggesting that the Division be granted unfettered authority to call witnesses – even after resting its case – to correct trial deficiencies warranting the exclusion of evidence.
As to the medical form prepared by the treating physician, the Court writes, “The Division’s use of a disinterested treating physician is not inconsistent with the purpose of the Rule” (referencing R. 5:12-4(d), which allows admission of forms from medical consultants of the Division). This broad language appears to open the door for the Division to offer any hearsay notation by any medical provider, instead of its paid consultants, as has typically been required.
Defense counsel must always be mindful of the cautionary language in the seminal case of In re Cope – “evidence upon which judgment is based [must] be as reliable as the circumstances permit and the answering parent [must] be given the fullest possible opportunity to test the reliability of the [State’s] essential evidence by cross-examination”. This proviso is the cornerstone of a fair judicial proceeding and can never be forgotten.
