To be a zealous advocate for Mr. Lee, I would need to advise him of his 6th Amendment right to confront his accusers, and, his liberty rights under the Constitution, to parent his children.
The liberty of parents to direct the upbringing, education, and care of their child is a fundamental right. Troxel v. Granville, 530 U.S. 57 (2000). However, I would need to inform Mr. Lee that these rights are not immune from State intervention. If a person is found to be an unfit parent, the State need not suffer custody of a neglected or abused child to remain with that person. "The State as parens patriae may act to protect minor children from serious physical or emotional harm. In some instances this may require a partial or complete severance …show more content…
Lee does have a constitutional right to confront his accusers in his criminal case. However, he may not be afforded the opportunity to do so, if the children are deemed unavailable to testify. Therefore, I would need to discuss with Mr. Lee, how and when a court may determine that, a child is unavailable to testify. The Commonwealth must show by more than a preponderance of the evidence, that there is a compelling need for the use of no face-to-face testimony by the children. Commonwealth v. Johnson, 417 Mass. 498. The court, with the advice of the expert testimony of a treating psychologist, could determine that having the children testify would be a detriment to the children, and would cause psychological or emotional trauma to the children. Id. In that case, the children would be considered as unavailable to …show more content…
Lee that if his criminal case is heard before his civil case, and he is convicted of child molestation, the evidence from that case could be introduced as a factor in the Child Protection case against him. Oscar v. Worcester, 412 Mass. 38 (1992). Likewise, any out-of-court statements made by his children under the age of ten can also be admissible in his Care and Protection case as substantial evidence under G.L. Chapter 233, Sections 83. Furthermore, any out of court statements made by Mr. Lee could be used against him in both of his cases, to prove the truth of the matter asserted
The liberty of parents to direct the upbringing, education, and care of their child is a fundamental right. Troxel v. Granville, 530 U.S. 57 (2000). However, I would need to inform Mr. Lee that these rights are not immune from State intervention. If a person is found to be an unfit parent, the State need not suffer custody of a neglected or abused child to remain with that person. "The State as parens patriae may act to protect minor children from serious physical or emotional harm. In some instances this may require a partial or complete severance …show more content…
Lee does have a constitutional right to confront his accusers in his criminal case. However, he may not be afforded the opportunity to do so, if the children are deemed unavailable to testify. Therefore, I would need to discuss with Mr. Lee, how and when a court may determine that, a child is unavailable to testify. The Commonwealth must show by more than a preponderance of the evidence, that there is a compelling need for the use of no face-to-face testimony by the children. Commonwealth v. Johnson, 417 Mass. 498. The court, with the advice of the expert testimony of a treating psychologist, could determine that having the children testify would be a detriment to the children, and would cause psychological or emotional trauma to the children. Id. In that case, the children would be considered as unavailable to …show more content…
Lee that if his criminal case is heard before his civil case, and he is convicted of child molestation, the evidence from that case could be introduced as a factor in the Child Protection case against him. Oscar v. Worcester, 412 Mass. 38 (1992). Likewise, any out-of-court statements made by his children under the age of ten can also be admissible in his Care and Protection case as substantial evidence under G.L. Chapter 233, Sections 83. Furthermore, any out of court statements made by Mr. Lee could be used against him in both of his cases, to prove the truth of the matter asserted