Where Do Parents Rate?

Parents that have ever been on the receiving end of an investigation by social worker or agent of the local child services organization, or Department of Job and Family Services in Ohio, will describe their desperate feeling of helplessness.  The great amount of statutory extra-judicial authority given these departments is nothing short of shocking to parents confronted with demands from the child services agents.  They are exponentially outraged when they discovery their children have been interviewed by such agents without parental consent.

Child services across the nation are now re-evaluating their child interview practices in light of the decision of the Federal Ninth Circuit Court of Appeals in Camreta v. Greene. In the case, the Oregon Department of Human Services received a report of alleged abuse against a nine-year old child by a parent.  A department caseworker and local police officer decided to interview the child at school, without parental consent or a warrant. The charges against the child's father, Mr. Greene, were dismissed.  The family then filed a Section 1983 lawsuit against the caseworker and officer for violating her daughter's Fourth Amendment right against unreasonable search or seizure   The Ninth Circuit Court of Appeals found a violation by applying the traditional probable cause warrant requirement as opposed a reasonableness balancing test.  Camreta, the social worker, claimed the analysis should instead be the reasonableness balancing test which has been the analysis where the invasion is something less than an arrest, for instance a less intrusive Terry stop which only requires reasonableness.

It is certainly exciting that the United States Supreme Court had agreed to hear the case, in other words, it granted certiorari which is an order to the lower court that it shall review the decision.  Oral arguments were had before the high court on March 1, 2011.  The actual oral argument recording can be heard at http://www.oyez.org/cases/2010-2019/2010/2010_09_1454/argument.  Those hoping for an opinion from the Court on the merits, may be disappointed.  A great portion of the dialogue in the case addressed the question as to whether the opinion had an current justiciable claim or a live case or controversy. It seems the Greene family and the child had since moved from the state of Oregon.  Some members of the Court wondered how the Court might dispose of the case if there is no longer a case pending below as the lower court found in favor of sovereign immunity for the social worker.

Should the Court reach a decision on the merits, the opinion could be far reaching.  There were multiple questions which specifically inquired about at what length of time does an interview amount to a seizure and at what age a child has a capacity to consent to the seizure.  In Ohio, the police are permitted to interview children without a Miranda waiver executed by both the child and the parent, which is known elsewhere as the “independent advice/interested adult standard.”  If the Court issues an opinion on the merits, the reasoning of the Court will certainly have a remarkable effect on other such standards relating to investigations involving children.

Think Twice Before You Waive Your Preliminary Hearing, Then...Don't.

If there is one powerful tool in the defense of a criminal case that is more often overlooked than any other, it is the preliminary hearing.  Too often defense lawyers advise their clients to waive their right to a preliminary hearing because they estimate the likelihood of success on the merits to be low.   That should not be the deciding factor.  Admittedly, the standard of proof at a preliminary hearing is a mere probable cause, i.e. whether it is "more likely than not" that the offense was committed.  Nonetheless, in Ohio, Rule of Criminal Procedure 5(B) provides for the right to a preliminary hearing.  Although the Ohio Rules of Evidence do not except preliminary hearings from the evidentiary rules and Crim.R. (5)(B)(2) references "the rules of evidence prevailing in criminal trials generally," the rules of evidence tend to be rather fluid during a preliminary hearing.  But see, State v. Mitchell (1975), 42 Ohio St.2d 447. Still, the rule provides the defendant the full right of cross-examination.  The burden of proof remains, however, only "probable cause."

Even with the revisions to the discovery procedures in Ohio Rule of Criminal Procedure 16 to provide more open discovery, there is no substitute for the opportunity to hear the investigating officers or possibly a victim testify live and subject to cross-examination early in the matter.  Unlike some states, Ohio does not allow discovery depostions in criminal cases.  That is to say, a criminal defendant does not have the opportunity to take the sworn deposition testimony of an officer or other witness in preparation for trial. 

Heck, no witness - especially the police officer - is obligated to talk with the defense.  And, candidly, they will typically be advised by the prosecutor or the prosecutor's victim advocate department not to speak with defense representatives.  This is all the more reason an opportunity for a preliminary hearing mustn't be squandered.  I personally can recall a number of criminal defense matters we handled which ended in an acquittal or conviction of a much less significant offense only - and I mean only - because we took the prelminary hearing.  For instance, I can recall an officer testifying to a rape theory that was simply not supported under Ohio law leading to dismissal.  Or a matter wherein an officer had previously testified at the preliminary hearing to what the victim had described during the investigation only to hear the victim testify differently at trial and the officer claiming he didn't recall either way.  With the officer's preliminary hearing testimony, not only was the officer impeached, but so was the victim - only because we took the time to actually take the preliminary hearing.

Mind you, some court's make an effort to discourage the preliminary hearing due to the delays it might cause in a court's schedule.  That said, absent a substantive reason for waiving the hearing, defense attorneys that advise clients to waive preliminary hearings are doing so at the client's peril.  Unfortunately, if they don't take the preliminary hearing, they will never know how the client ultimately suffered.  That might be the larger tragedy.