2.Counselor Testimony Admissibility Hearing
18 linesTHE COURT: Mr. Young, we had a brief bench conference about some counseling records, calling a counselor of children. Tell me her name again.
BOYD YOUNG: Kimberly Fender.
THE COURT: Fender? So, Ms. Fender talked with two of the children that I have records on, Elias and Merah, correct?
BOYD YOUNG: Correct.
THE COURT: What's your -- the State thought we needed to, perhaps, hear some of this. The records may be protected under some fashion, they had concerns.
BOYD YOUNG: You know, the State elicited testimony from what Merah had told one of the babysitters, Christina Ehlke. This is -- would be statements both Tim and the children made to a counselor. It's the same facility where Tim was seeing Dr. April Hames at that time. And then Dr. Hames talked about recommending that he bring the kids in for counseling and he did bring Elias and Merah in.
THE COURT: All right.
BOYD YOUNG: I mean, I just don't understand how the State's allowed to elicit testimony from one witness but then trying to object to it from another. All of these statements are made for the purposes of treatment. They're all outside of the hearsay rules. And Ms. Fender should be allowed to testify as to what Tim and the kids told her about why they were coming there, what he was trying to get them help with, and what they said.
THE COURT: All right, Solicitor, what's the State's position?
RICK HUBBARD: The State's position is she was treating the two children, not Mr. Jones, and that is protected under 19-11-95. Mental health records of a patient are confidential by law. We also say that Amber Kyzer is a parent. She has as much right to say what is and is not to be waived with her children. And she is represented by an attorney. We reached out to her, she strenuously objects. We're trying to reach her attorney right now just to see what his position would be. So, Your Honor, I would suggest if they really want to pursue this, let's set it aside for right now so that you can hear from the other parent, either through her or by her attorney. I think they have a right to be here. They have a right to be heard. Basically, our concern is this, too, the Defendant was taking his kids to this therapist and our contention is going to be much of what they're going there for is because of what he told his children. So it's basically like getting in hearsay through the kids, but that helps him because of the position he's put these little children in. That's why I think Ms. Kyzer has a right to be heard on this by way of her attorney, if she chooses. But she's expressed to us she absolutely objects to this. These are her children. I think by law under section 19-11-95, she has a right to be heard on that.
BOYD YOUNG: They've had these records for over a year. They've known about it for over a year. Ms. Fender has been on our witness list for months. And to bring this up now is just a delay tactic.
RICK HUBBARD: It's not a delay tactic. Your Honor saw there were 300 plus witnesses. We didn't know who they were going to call. We find out today that after Dr. Lipman, they want to put her up. So Your Honor, this is the first time we've been put on notice she's actually being called. We object.
BOYD YOUNG: Your Honor, Amber was asked to read the letters that she had written to the children and that also--
THE COURT: Is there anything else we can do pending hearing from Ms. Kyzer's attorney? Can we do something else before lunch and then use the lunch break to just work on it, I can't say you can't do it. I don't want to sit here and squander time.
RICK HUBBARD: While they're looking at that, my second objection is going to be relevance for what the kids say about what's going on, something prior to this -- prior to their killings.
BOYD YOUNG: We have another witness here.
THE COURT: You got one? Let's bring the jury in and work until about 12:30 or so, break time and then we'll take lunch and then we'll address counselor's hearing today. (Whereupon, the jury came into open court at approximately 12:00 p.m.)
THE COURT: Call your witness, please.