Parents Right to Waive the Reading of the Petition Affirmed by Michigan Court of Appeals
Today, the Michigan Court of Appeals came out with a ruling that helps parent attorneys seeking to get a fair jury trial for their clients. The case is In re H. J. Decrosta, Minor and can be found here. Here is the problem that parents have been having: For years, Michigan CPS Petitions have been stuffing all sorts of inflammatory information in Petitions that would never be admitted into evidence at trial. This is because the trial is governed by the Michigan Rules of Evidence, which limit hearsay and requires that evidence be relevant. There is very little control over what goes into a Petition and that document is often full of hearsay and highly prejudicial statements that the judge would not allow at trial.
Most Michigan judges read the Petition to the jury, no matter what is in it. This is because we have a court rule (MCR 3.972(B)(2)) which states that the Court will read the allegations in the Petition unless waived. Unfortunately, the rule is silent as to who must or can waive the reading of the petition. In Decrosta, the parent attempted to waive the reading of the petition, which was stuffed with highly prejudicial statements, but the Court insisted on reading the entire petition over the objection of the parent.
For many years, trial attorneys have discussed the concept of “un-ringing the bell.” In the Decrosta case, the judge informed the jury that the Petition was not evidence and presumably told them to only consider the evidence. That would be a lot like ringing a bell and then asking a person to forget what it sounded like. The general concept is that there are some statements which are so prejudicial and so persuasive that they make a fair trial virtually impossible. If the jury is allowed to hear such inflammatory statements, it is difficult for the other side to recover from it.
In a thoughtful and rational opinion written by a two judge majority, the Court of Appeals ruled that the waiver was intended for use by the respondent (parent.) Further, the Court ruled that it was error for the trial court to read the Petition allegations after the respondent parent waived. Unfortunately for this parent, the Court ruled that the error was harmless in this case.
As a result, this case will only provide aid to future parents trying to get a fair trial but will provide no aid to this particular parent. Now we will have to wait and see if either the parent or the prosecution takes this issue to the Michigan Supreme Court. In the meantime, for the first time we have a clear ruling from a Michigan appellate court that parents (respondents) can waive the reading of the Petition allegations to the jury.