IS DISCOVERY ALLOWED IN A FAMILY OFFENSE PROCEEDING?

by: Mace H. Greenfield

It is important that a respondent serve a demand for a bill of particulars and combined demand (to obtain any evidence the petitioner will present, i.e., photos, recordings, medical reports, et. al.), yet this is rarely done. In the demand for a bill of particulars, it is essential to pin down the complainant to exactly which offense or offenses are being charged. With this information it can be determined whether each of the elements has been satisfied or if the petition will be subject to dismissal. The exact dates, times, injuries, and other information needed to fulfill each and every element of the offense or offenses alleged as defined the penal laws is crucial to elicit from the petitioner. The petitioner will be bound to this information. In Re Elliton J., the family court held that both the court and the respondent may rely on such a response, not only as an argument, but as a truthful statement of the petitioner’s position of what is intended to be proved.

In the combined demand, the opportunity to examine, in advance, the proof that will be used against the respondent avoids surprise at trial that can be fatal, and if the proof necessary to establish the charges are insufficient, again, a motion to dismiss is ripe for the making. If there are photos of the injuries, this should be known in advance because, in People v. Burris, the appellate court held that such photos are admissible at trial to prove the seriousness of the petitioner’s injuries sustained in the alleged attack. Further, in People v. Singleton, the appellate court held that hospital records are also admissible at trial pursuant to the business records exception to hearsay rule. Records, including portions which indicate that the petitioner was hit on a specific part of the body, and are relevant to diagnosis and treatment of petitioner’s injuries, will not be excluded. Such evidence may indicate the wisdom of consenting to the entry of an order of protection without admitting or denying the truth of the allegations, and avoid the prejudice of a judicial determination, especially if there is a possibility of a divorce being filed on the grounds of cruel and inhuman treatment.

© 1997 All rights reserved.