Thursday, February 01, 2018 - credibility - review by factfinder who did not hear/see the evidence

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

Generally, “[d]eterminations as to credibility and evidentiary weight will not be disturbed on appeal absent an abuse of discretion.” F.V.C. v. DPW, 987 A.2d 223, 228 (Pa. Cmwlth. 2010). When the factfinder does not observe the testimony that is the basis of the evidence, a more thorough review of credibility determinations is required. See McElwee v. SEPTA, 948 A.2d 762, 774 n.10 (Pa. 2008). In McElwee, the Supreme Court stated that, “[t]he need for an articulated, reasoned basis for rejecting such testimony seems especially pronounced where, as here, the trial court did not observe witness demeanor but, instead, merely reviewed the deposition transcripts and documentary exhibits.” Id. A factfinder’s credibility determinations cannot be arbitrary. Id. 

child abuse - credibility - child's testimony tainted

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

Finding of abuse reversed where
            * on remand, ALJ made opposite findings from his initial findinds, based on same record
            * child’s testimony was tainted

Initial decision appealed and remanded, because of change in standard of proof from clear+convincing to preponderance, G.V. v. DPW, 91 A.3d 667 (Pa. 2014, GV II).  On remand, the same ALJ did a complete about face (or volte face, as the Court stated), without  any “articulated, reasoned basis” for doing so.  The intial objections to the child’s testimony (vague, conclusory, lacking in precision, etc.) were not obviated by the application of a different standard of proof.

In addition, the court held that the evidence showed that the child was not competent to testify because her testimony was tainted. 

“Examples of relevant factors showing “some evidence” of taint, are as follows: (1) the age of the child; (2) the existence of a motive hostile to the defendant on the part of the child’s primary custodian; (3) the possibility that the child’s primary custodian is unusually likely to read abuse into normal interaction; (4) whether the child was subjected to repeated interviews by various adults in positions of authority; (5) whether an interested adult was present during the course of any interviews; and (6) the existence of independent evidence regarding the interview techniques employed. Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (citing Delbridge, 855 A.2d at 41). The list is not exhaustive; further, the party asserting taint need not satisfy each and every factor.... The uncontroverted and accepted evidence of record establishes that every factor is applicable to this case.

and that “the Child’s testimony was tainted.  A witness whose testimony has been deemed tainted must be dismissed as incompetent.”