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Professor Jeanne Kaiser lead attorney in care and protection case

On April 9, 2018 the Massachusetts Supreme Judicial Court handed down a decision in the case of CARE AND PROTECTION OF M.C. (SJC-12339), which was argued at the SJC by Professor Jeanne Kaiser on behalf of the Children and Family Law Program (CAFL) of the Committee for Public Counsel Services (CPCS). Professor Kaiser prevailed in the case and the head of appeals for CAFL called the case a "historic contribution" to fifth amendment and privilege jurisprudence. The case involved parallel proceedings in the juvenile and criminal courts. Professor Kaiser represented the mother, who was trying to preserve her parental rights in juvenile court while facing criminal charges in the superior court. The question was whether the Commonwealth and the co-defendant father were entitled to review the otherwise impounded material from the juvenile court. The most noteworthy part of the case involved the court's ruling on the fifth amendment and psychotherapist's privilege. The case makes it clear that a parent who testifies at a care and protection trial retains her fifth amendment privilege not to testify at the criminal trial and that furthermore that the prior testimony is inadmissible in the criminal trial. This is a huge gain for parents because they previously faced an impossible choice--either waive the privilege or let the juvenile court draw an inference against them for not testifying. The case also provides that a parent does not waive her psychotherapist privilege when she allows the psychotherapist to testify at her trial. Another huge gain, because parents were previously deterred from entering helpful testimony from their therapists.

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