Kenneth Ellman

In the Matter of Diane P. 110 AD2d 354 Kenneth Ellman

From Kenneth Ellman, email:ke@kennethellman.com,Phone: 9738968284.

All Mail: Box 18, Newton, New Jersey 07860

I could write a book about such cases and I shall, but here is a brief description.

In this Matter of Diane P., Kenneth Ellman conducted the proceedings as Article 10 Child Abuse Prosecutor and argued that the Exclusionary Rule did not apply on the facts of this case and that on the law the Exclusionary Rule cannot be used to suppress evidence of Child Abuse or Neglect. In part the argument at the time was that the interests of the child victim and of the community to prevent ongoing incidents of Child Abuse and Neglect outweighed the interests of the person or persons accused of Child Abuse to suppress such evidence. Further the consequences of suppression of Child Abuse evidence was of greater detriment than the introduction of supposedly illegally seized evidence. How can we live as a civilization allow our children to be denied Judicial Protection, which would mean denied our protection from continuing attacks and abuse?

The issues of fact were disputed as to whether there was any lack of consent in the taking of the evidence but the legal argument as to whether the Exclusionary Rule should apply in such Child Protective proceedings regardless of illegal seizure became the issue of significance.

Simply should the child victim be denied the protection of the law from past and future injury because the evidence of such crimes against the child may be contested on the basis of the Exclusionary Rule.

Strangely the County Attorney representing the Department of Social Services, entered the case as “Amicus” to support the arguments of the perpetrator/respondent that the evidence of the assault on the Child should be suppressed. For the Department of Social Services and the County Attorney to have taken such a position speaks volumes for the problems we had at that time in Child Protection. We frequently found ourselves with the DSS and their County Attorney as an additional opponent in Court. Keep in mind that the previous Reports of Abuse the Department of Social Services was trying to suppress and conceal were reports they had unfounded and expunged even though such attacks in fact occurred. It appears the Department of Social Services made a decision that it was more important to conceal and protect their error and failure than to protect a child from continuing abuse.

After extensive argument and briefing in the trial court, the Judge then suppressed the evidence. I asked for a plenary hearing with testimony subject to cross examination but the trial court denied such. My recollection at the time was that the law clerks and other staff (apparently following the lead of the Judge/Judges) in the trial court specifically confronted me and stated that my argument for allowing the evidence and inapplicability of the Exclusionary Rule was ridiculous and not worth of the serious consideration of the trial court. I do remember some of the confrontations vividly.

I took an interlocutory appeal and obtained a stay of the proceedings so they could not compel us to go forward without benefit of the evidence. The granting of the Stay was certainly a good sign. One of my arguments to the Appellate Division was the consequences of suppression of evidence of the crimes against the Child was too high a price to pay for the allegation of illegal seizure of evidence. The consequences of evidence suppression in all such cases might be continuing injury to a child as the perpetrator might regain control of the victim.

The Appellate Division took a very long time to make a decision. The case was initiated in September of 1983 in the trial court and the Appellate Division rendered its decision in October 1985. When we returned to the trial Court the Judge who suppressed the evidence said on the record that he would not obey the Appellate Court decision. I did not take him seriously but this goes to show you the emotional state that such case/cases bring on. I have seen such many times.

So, here common sense and humanity prevailed and the child victims had one little envelope of protection extended to them from high above.

This commentary is my opinion. The decision speaks for itself.

For any question contact: Kenneth Ellman, email:ke@kennethellman.com, Phone: 9738968284