More details to this question:
My former wife ("mary") received a 209a order with my son on it, my son was not present. The only evidence presented that he was in fear of me was mary told the judge "He (the child) is afraid of me". Unfortunately I did not object. My question is on appeal can I make the argument that the hearsay evidence cannot properly be relied on to extend this order? ie Plain Error argument
1 ANSWER
The evidence is not hearsay. Mary did not say "he said that he was afraid of his father." If she had, the testimony would still likely still have been admitted to show the boy's state of mind and/or under an exception to the hearsay rule, such as present sense impression.
Mary's testimoney was a conclusion. It would have been more proper if she had testified to the factual basis for that conclusion, i.e. something along the lines of "Several times I saw him hide in the garage when his father came home." Thus, the testimony may have been objectionable, but I don't think it was plain error to allow it - evidentiary rulings rarely are. I also don't think that your attempt to raise the issue on appeal, contending that it was plain error to allow the testimony, is frivolous, so it is perfectly proper for you to raise it, although I do not think you will succeed. You have nothing to lose.
Answered on Feb 13th, 2014 at 1:34 PM