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Recent Mississippi Supreme Court opinion reads like a U.S. Supreme Court opinion

By Robert M. Kisselburgh, Esq.

What can a Guardian Ad Litem testify to in a hearing in Mississippi?

For over twenty years in reading modern U.S. Supreme Court decisions, many times I find it necessary to chart out the Court's opinion to see how many justices agreed with each portion of the opinion. What at first blush might be considered a majority opinion turns out only a majority for Part I and II of the decision, while the concurring or dissenting opinion carries a majority on the remainder of the opinion. In that respect, an opinion handed down by the Mississippi Supreme Court on Thursday is reminiscent of a U.S. Supreme Court decision.

In a child custody case out of Rankin County, Mississippi, the Mississippi Supreme Court wrestled with the normal issue of whether the Chancellor made the proper decision on which parent should have custody of the children. However, the more interesting aspect of the opinion concerns the Guardian Ad Litem.

The Guardian Ad Litem in the case testified during the hearings concerning his findings, which included testifying to what third-party witnesses told him during his interviews. Usually, testifying in court to what someone told you is hearsay--an out of court statement offered for the truth of the matter asserted. Courts do not allow a witness to testify what some third party said to them unless an exception to the hearsay rule applies. The reason is that such evidence is not reliable and trustworthy unless it is subject to cross-examination. While the attorney can cross-examine the person testifying, the attorney is robbed of the ability to cross-exam the third party whose statements are being repeated in court by the witness.

That was the complaint in this case. The Guardian Ad Litem had interviewed several witnesses (who did not testify at the hearing) and in his testimony he testified as to what certain third parties told him about the children. The question was whether a Guardian Ad Litem should be allowed to testify in court as to what third-party witnesses told him. While the "majority opinion" appears to rule that the issue was moot or the complaining party failed to object at the time of the hearsay evidence was offered, a closer look at the opinion shows this section of the opinion is not the majority. Rather, the concurrence by Justice Dickinson was joined by Justices Carlson, Randolph, Lamar and Chandler, making Justice Dickinson's concurrence the majority opinion on this issue. So what is the rule? In Justice Dickinson's great verbiage,

"Chancellors should not decide the fate of children based on pure, rank, un-cross-examined hearsay."

While he agrees that Guardians may rely upon hearsay evidence to formulate their opinion, given they are qualified as experts under the Rules of Evidence, it does not give them the green light to testify as to what some third-party told them out of court.

Justice Dickinson's greatest line comes at the end when he said,

"And if we believe enforcement of the rule against hearsay is appropriate and necessary to protect the rights of murderers, rapists, and pedophiles, surely we think it necessary to protect the rights and interests of children and their parents."

So what can attorneys and judges take from this part of the decision. I think a majority of the Court agrees that Guardian Ad Litems are akin to expert witnesses and can rely on hearsay evidence to formulate their opinions, but a Guardian Ad LItem cannot testify to what a third party said to them unless there is an exception the the hearsay rule that applies.

You can read the opinion here.

Full post as published by Mississippi Family Law Blog on June 20, 2010 (boomark / email).