USING EXPERT WITNESSES IN AN ICWA
CASE:WHY, WHEN, WHO AND HOW?
MAGGIE HUMM AND MELONY LOCKWOOD
ALASKA LEGAL SERVICES CORPORATION
BIA PROVIDERS CONFERENCE, DEC. 5, 2013
WHAT IS AN WITNESS?
A witness is a person who makes a
statement in court about what he or
she knows or has seen.
Merriam-Webster Online, www.merriam-webster.com
TYPES OF WITNESSES.
The Alaska Rules of Evidence
identifies two types of witnesses:
•The Expert Witness
•The Lay Witness
WHAT IS AN EXPERT WITNESS?
• An Expert Witness is:
• Any witness with knowledge, skill, experience, training, or
education in a particular field and
• Whose knowledge assists the trier of fact in understanding
the evidence or determining a fact In issue.
Alaska Rules of Evidence, Rule 702(a)
WHAT IS A LAY WITNESS?
• A lay witness is
• Any witness that is not testifying as an expert and
• Whose testimony is limited to opinions or inferences
which
• Are rationally based on the perception of the
witness and
• Helps the trier of fact(judge)understand the
evidence or determine a fact in issue.
Alaska Rules of Evidence, Rule 701
THE TRIBAL EXPERT WITNESS
Someone with knowledge about the culture, customs, values,
traditions, and beliefs of your tribe based on his or her experience,
education, skills, and training.
Whose knowledge can help a trier of fact(the judge) understand the
evidence before him or her or determine a fact in issue.
USING AN EXPERT WITNESS FOR ICWA CASES:
WHY?
• Make a record(Present evidence in open court so that it is
available for consideration by the trial judge and by appellate
courts)
• Teach the decision maker about the culture of your Tribe. (Don’t
assume the judge understands your Tribe’s customs!)
• Make a record!
• Actively involve the voice of the Tribe in the case.
• Make a record!
USING AN EXPERT WITNESS FOR ICWA CASES:
WHEN?
• When to use an Expert Witness:
• determining “serious emotional or physical harm,” § 1912(e)
and 1912(f)
• deviating from placement preferences, § 1915(d)
• defining Indian Custodian, § 1903(6)
• defining extended family member, § 1903(2)
• determining whether there is good cause not to transfer a case
to tribal court, §1911(b) and CINA R. 23
USING AN EXPERT WITNESS FOR ICWA CASES:
WHEN?
Under ICWA §1912(e)
No foster care placement may be ordered in such proceeding in the
absence of a determination, supported by clear and convincing
evidence, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to the
child.
USING AN EXPERT WITNESS FOR ICWA CASES:
WHEN?
Under § 1912(f)
A court may not order a termination of parental rights unless the
court’s order is supported by evidence beyond a reasonable doubt,
including the testimony of one or more qualified expert witnesses,
that continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage
to the child.
USING AN EXPERT WITNESS FOR ICWA CASES:
WHEN?
§1915 Foster-care and Pre-adoptive and Adoptive placement
preferences
(d) provides:
the standards to be applied in meeting the preference requirements
of this section shall be the prevailing social and cultural standards
of the Indian community in which the parent or extended family
resides or with which the parent or extended family members
maintain social and cultural ties.
USING AN EXPERT WITNESS FOR ICWA CASES:
WHEN?
• Determining who is an Indian Custodian
• § 1903(6):
• Any Indian person who has legal custody of an Indian child under tribal law or custom
or
• Under State law
• Or to whom temporary physical care, custody, and control has been transferred by the
parent of such child
• Determining who is an extended family member
• § 1903(2)
• Defined by Tribe’s law or custom
• In the absence of such law or custom, shall be a person who has reached the age of
eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first of second cousin or stepparent.
USING AN EXPERT WITNESS FOR ICWA CASES:
WHEN?
• Deciding whether there is/isn’t good cause not to transfer a case
from state court to tribal court ( §1911(b) and CINA R. 23)
• 1911(b) of ICWA and CINA Rule 23 enables the child’s tribe, parent, or Indian
custodian to petition the State Court to transfer the case to Tribal Court.
• Upon receipt of a petition to transfer the State Court must transfer unless
either party objects, the Tribal Court declines jurisdiction, or the State
Court determines that good cause to the contrary exists for denying the
Transfer
USING AN EXPERT WITNESS FOR ICWA CASES:
WHEN?
• Is there good cause not to transfer?
No existing tribal court
Petition to transfer was filed when state case was at an advanced stage
Child 12 years or older objects to the transfer
The evidence necessary to decide the case could not be adequately
presented in the tribal court without undue hardship to the parties or
witnesses
• The parents of a child over five years of age are not available and the child
has had little or no contact with the child’s tribe or members of the child’s
tribe.
•
•
•
•
GROUP ACTIVITY: 1
• Discuss with the people at your table examples when
the State and/or OCS or any other organization has
misunderstood or misinterpreted something about
your culture, custom, traditions, or community.
• Write your list of examples on the paper at your
table. Discuss with the people at your table:
• How could an expert witness help change the
misperceptions and misunderstandings?
USING AN EXPERT WITNESS FOR ICWA CASES:
WHO?
• A member of the Indian Child’s tribe who is recognized by the
tribal community as knowledgeable in tribal customs as they
pertain to family organization and childrearing practices.
• Any expert witness having substantial experience in the delivery
of child and family services to Indians, and extensive knowledge of
prevailing social and cultural standards and childrearing practices
within the Indian child’s tribe.
• A professional person having substantial education and experience
in the area of his or her specialty.
GUIDELINES FOR STATE COURTS; INDIAN CHILD CUSTODY PROCEEDINGS
USING AN EXPERT WITNESS FOR ICWA CASES:
WHO?
• Someone with credibility:
• Knowledgeable about the beliefs, norms, customs, and
traditions existing in his/her tribal community and able to
educate a non-native about these.
• Others in the community would share the expert’s views about
the community’s cultural beliefs, norms, customs, and
traditions.
• Doesn’t have a history of committing crimes against children or
crimes involving dishonesty.
• Doesn’t have any other history involving harm to children.
USING AN EXPERT WITNESS FOR ICWA CASES:
WHO?
• Other considerations
• Comfortable being asked questions.
• Can handle being challenged on cross-examination.
• Respected by members of his/her community.
GROUP ACTIVITY: 2
List three people in your tribe who would/could be
an expert witness in an ICWA case.
Why?
• Remember to consider the person’s knowledge,
skill, experience, training, and/or education.
USING AN EXPERT WITNESS FOR ICWA CASES:
HOW?
• Prepare your Expert Witness for the role he/she will
play.
• Make sure he/she understands what the issues are.
• Make sure he/she understands the importance of his/her
testimony.
• Make sure he/she is prepared for direct examination and
cross-examination (understands both the Tribe’s and
state’s position on the issue(s)).
• Practice and Roll play.
USING AN EXPERT WITNESS FOR ICWA CASES:
HOW?
• Under CINA Rule 8(d) –If you intend to call an expert witness at trial you
must give notice to all parties.
(1) Retained Experts (no involvement with family)
- The expert’s curriculum vitae; and
- A written summary of the substance of the anticipated
testimony of the expert, the expert’s opinion, and the underlying
basis of the opinion.
(2) Other Experts (involvement with family)
- name
- any report created by expert
CINA Rule 8(d)
USING AN EXPERT WITNESS FOR ICWA CASES:
HOW?
• At Trial:
• Qualify your expert witness:
• Knowledge
• Skills
• Experience and/ or Education
• Offer your witness as an expert
Summary
• What: Specialized testimony about your Tribe and its culture
• Why: Help the decision maker make the right decision
• When: assessing risk, placement, defining roles, transfers
• Who: a knowledgeable, credible, respected member of the Tribe
• How: give notice and prepare your expert
ALSC Offices
Anchorage
(888) 478-2572
Barrow
(855) 755-8998
Bethel
(800) 478-2230
Bristol Bay
(888) 391-1475
Juneau
(800) 789-6426
Fairbanks
(800) 478-5401
Ketchikan
(877) 525-6420
Kenai
(855) 395-0352
Kotzebue
(800) 622-9797
Palmer
(907) 746-4636
Nome
(888) 495-666