and don't we have cases going either way but i think the cases that go our way over to kiran one of the most recent first district cases where the statements of medical students much older than the seven year old here was more credible than this rule and i'm also curious in this particular case what we do even if from the testimony of brianna could be introduced through hear say  sit through a medium rather than directly what are we going to do with the recount how do we treat her testimony do we treat her maybe we can cut to the chase if i may and it's not that i've struggled with this sound mind you we all but let's see if we can narrow down the issues so that we get at least of the some of the core issues that our troubles we have basically in this case to establish the specification which consist of primarily of the corporal punishment chart we have corporal punishment visa v briana and corporal punishment these of the law the witnesses to these this corporal punishment is just limited soley in terms of in court in appearing in the form to the testimony honest through her hearsay and we have boy through his direct testimony each of which they're both small children one of them systematic with some problems that may at least according to the testimony of lead i know cation to imaginary testimony are made up that's the money and the other is briana and they're in brianna not to the ground and into the water cooler so they don't agree on the facts of the case but there are only two small children there is no other  show no your honor because the statute states section thirty four eighty five states that conduct on the part of the teacher that's cruel the moral negligent criminal or in any way because the psychological harm to a student one student that's what the statute says is their immediate because it is there enough proof that such harm was perpetrated against one student in this case i just testimony is based upon reports from the the child are so is that is that what you're saying that her testimony was support for the  well first it's cruel and we don't have all that we don't you don't have to like you know never try to sell us on the notion that if a teacher if you anyway imposes corporal punishment on child  corporal punishment on a child but there there isn't are we i mean i can't because i think we all have our seven year old or anyway if there were truth to the allegations that there think it's not that's not really where where i'm headed here i'm not the words you know it's there is no point there's no need for you to spend any time to ingrain us with issue in this case is not whether proper real punishment is a proper subject of discipline including very likely terminations but the question is whether there is sufficient evidence for us as a reviewing court and going back down for the administrative agency to have reached the conclusion that  broke and that's where you ought to be spending your time it seems to me if i were in your shoes thank you one hundred the hearing officers heard lloyd testify and he heard she heard rule testify and she found that lloyd was open and direct and that he was consistent in the basic details of what was happening except for he gives his testimony conflicted with the report o that this very day now i think this is kind of critical you're saying this letter wasn't from that day so i thought i think it was dated that day but i think it was sent to the principal the next day ok the next day before the whole thing broke out i mean i think it was an e mail so i'm not sure at what time it was sent and then did the mother come in the very next day before this whole thing erupted and asked for him to be transferred yeah no what happened was the mother came in that morning and spoke with assistant principal average and told her that lloyd came home had come home and said that rules hit him in the head yeah so you're saying that it sounds like the teacher is is is perhaps trying to already put in place some kind of calm up and the mother's coming in the same day and she's already trying to put in place that something that her son was fit to see it all after that the very same moment but what i think happened is that ploy after that his mother came and picked him up and as soon as he came what she said and was there some reason that she would have said that that you know this is that because of his history that no other teacher was willing to accept him in their classroom but were the multiple documented incidents involving this particular child yes lloyd was a handful that's what the the different people testify to but that doesn't mean that the girls with that again that day no one did anything about this it did not move months now something happens better than happened at this time but at that time this wasn't handled how many are saying happen every day thousands no i didn't i didn't say i did we have situations of corporal punishment that happen  day yes and what and what a big number it you have it here i see probably three or four every day and we have four hundred thousand students instead i think it's than the brianna who was the alleged victim that's right ok now do we have the full content of that testimony none of these three students themselves appeared right right consistent in saying that that happened so i suppose that we can infer from that that she didn't accredit what the person in the office said ok or otherwise impact on the confidence or trustworthiness of the testimony and the fact that and everything else here comes in  didn't it and in her testimony jury members said that what she admitted to your honor was that when that she was talking to the people in the classroom the parents and the teachers about brianna's allegation that she hit her and telling her that she needed to be sure to tell the truth she admitted that she did that so is there is that respect is that a charge which the the the the this particular board  think well i did put it in there i'm sorry i didn't emphasize it to the extent they should have transcript but i would like to point out that i hope when you discuss this i think you will attempt to relate to the standard which controls our review namely the manifest weight of the evidence for which we don't look to the intermediate court to the circuit court but we look to the ministry say yes that's correct i understand well let's talk about your state because ward contends that you could not object under certain circumstances and it is absolutely incorrect that there were no objections made to the hearsay regarding the briana charges there were objections made over and over again and i'd like to call them to every report there was a letter from mrs everett those were those are three of the pieces and yet page c two ninety of the transcript of what exhibit thirteen which verges report of the incident the hearing officer of the world at that time we don't know for sure whether or not she will in fact be a witness i want to point out by the way that the subpoena the board did nothing to try to enforce that time she said i can be a little more specific she said i'll allow the sand based on the testimony of this witness that she saw it being written and it comes from the documents of the school district i will reserve judgment on the weight that i give to it after we get all the witnesses and you so what about that exception to the hearsay rule that these statements were coming in under the business records except well they can't come in under the business records exception because they don't meet the standard that the is here is are a couple things on the two things that need to be brought out and first i will respond to your question there's another aspect of mr witnesses report that i think needs to be considered first is th this is an administrative proceeding in which the hearing officer takes a very lax view toward the admission of evidence the the hearing officer stated in the course of the proceedings that she almost never rules out any evidence that's offered at the beginning and it would seek to thirty seven and following the transcript as detective wigan's was beginning his testimony there's a lengthy discussion on the record of hearsay and whether or not it's admissible in administrative proceedings there are three documents that they're talking about number two is the wiggins report and then number three is the incident report for colon school and wor me be a little more a little more clear about this the three and four are admitted by the hearing officer at that point and she explicitly says that they come in for the truth of the matter asserted so she's expressly admitting hearsay at that point the board doesn't move number comes to admitting a large group of documents and brought counsel makes global objections at that point he renews all of his prior objections and as i as i said the hearing officer said that it's rare that she excludes evidence that's at c three sixty seven of the proceedings and i will say that this is common practice in a lot of school proceedings where you have like this hearing officer here and i've been involved in maybe twenty five thirty school cases like this  of that prosy we can we need not be guided by the fact as to whether proper objections were made to the introduction of your say the yeah your honor what i'm saying is that what you're is that what you're trying to convey what i'm trying to say is is that given the way that these standards are applied clearly pump but it will will will that court nevertheless be prohibited from utilizing that hearsay if it's otherwise  following in the record there is a discussion at that point on the record with citation to the administrative rules and citation to case law by the board and accepted by the hearing officer as to whether or not your say is admissible in administrative proceedings and immediately after that the hearing officer states that those documents are accepted for purposes of administrative notice of their not made exhibits to the a standing objection well where where is that i'm going to have to find it but i have it here for you there was a standing objection to the testimony regarding verges  got the outcome of a hearing directly dependent on the credibility of witnesses and where it's there is conflicting testimony they've got a test in there and both of those are met here we've got our hearing officer saying the findings of fact in this matter are singularly dependent on the hearing officers assessment of the credibility of the testimony and evidence offered now where you have it singularly dependent according to the caring officer were meeting the first directly dependent on the credibility of witnesses secondly it's got to be conflicting and there can be no question here that there is widely conflicting testimony between the eye witnesses well i've got about two answers here and they vary between the two between the three charges in the first charge i submit to the court the first charges lloyd being slotted into the fishtank in the first charge i submit that that if you look at the record as a whole there was an objection that was made and the hearing officer has set up her own set of rules which she has discretion to do under the is the regulations that the hearing officer has set up her own set of rules where the parties did not have to make those kinds of objections so you're saying that there was a de facto standing  no no it wasn't a standing objection your honor it was an objection that was made at the conclusion she she deferred her ruling on the admissability to the conclusion of the board's case then she moved it up she said you know so that we don't get lost in  the process she moved it up to the conclusion of another witness and she went over and she admitted a large number of documents at that time she asked what the objections were he also made a global objection and said i knew my my previous objections and i think in that contest where you've got  hearing officer saying i let everything in that you've got a situation where that strict compliance is a constitutional matter you can't waive it because it would be it's just fundamentally unfair now respect to the two charges i maintain that their work consistent objections made all the way through to brianna's testimony to verges testimony to that incident report it was admitted the incident report and  letter were admitted over the objection of counsel and after detailed discussion on the record so for two of the three charges the evidence was properly objected to even under even under the formal rules of evidence that evidence was introduced but that they weren't all pervasive as you would have liked oh i don't have the specifics in front of me ah but i do if your opponent is that testimony about her recantation of the charge regarding her recantation is that once the documents came in and they came in at the beginning they were admitted they were formally admitted into evidence and the the ensuing testimony i'm off the clock what with ms rules op you know interpretation of that well what comes when you when you look at her testimony as a whole but she had to say was that she had working with the students who were meeting some additional reading support such as lloyd she was in that classroom and she saw off on a daily basis she observed her teaching this is a person with specialist experience and she testified that rule was a very good teacher that she used affective teaching strategies and that it was a kind of thing that would keep children in gauged and involved in their work we talked three year with this guy and where his behavior before this  yes that's correct and he was and there was on a daily basis i if i'm not answering your honest question why i thought there was an indication that he had been offended multiple times before the is it which if the teacher over foot i may be incorrect but my recollection is that he was that she that ms rule called the office on multiple occasions practically on a daily basis and that he was constantly being disciplined and that other people who dealt with him for example the librarian who dealt with him frequently and of the reading specialists as well had the same kinds of disciplinary problems solved when we're when we're dealing with the issue of no because it it suggests that there was maybe some kind of propensity but it doesn't show that that happened on that particular day and what the evidence shows is that that that most stories are sad coupled with the hiding not an independent charge but is it relevant in proving the charges that were in the status this particular this particular incident was used by the hearing officer to and that that was part of the internet for television and was one of the reasons that she up the charge so yes it came in as evidence with respect to the third charge and then that that evidence when it was offered by the board was vigorously objected racially the her students eight year olds to write these letters in which of the samples contained in the record showed that they could barely spell and barely by so to speak seeking their permission to use those letters as further evidence that this was being pressured by mis read from her eight year old students and if that was the case those that support the third child fully had it if we had testimony from the children as to all of the things that you've just said your honor that would be a very different story but i don't think that any of those inferences arise from the fact that that she had asked the children to draft what it was that they saw she couldn't control those those letters because they're there on grammatical the spelling is incorrect feel there's only letters there's no evidence in the record that he knew anything about those letters being drafted and similarly there was no evidence and the record what about the evidence offered all be from the initiative of the teacher the way that it is understood that you're on of the way that that letter that the thing that can trip that costs that was the green on i allegedly was complaining that when she tried to ask a question that nasrullah wasn't responding to work and that she told put her hands down again we get back to this question of whether it's a hand or a head she had put her hands down and then when she was it doesn't make sense but when she was a racing some material on her paper supposedly misrule came and hit her in the back of the head and we don't have any evidence in the record as to how hard this so called that was i mean was it a tad you know to catch  attention come on you know pay attention to what we're doing or you know did she bash well we don't have anything of course and one i don't think it's a matter of traditional notice but any physical contact of less of a physical contact general of between teachers and students are discouraged and any contact that's not right and particularly when it comes to context physicality involving somebodies head which neurologically is is more particularly vulnerable than contact with for example the shoulder well the idea of neurological vulnerability which i would certainly agree if there were any degree of force but there is the word policy is clear when it comes to the you know the punishment implies a certain amount of force in the context there's no blanket prohibition on contact and dealing with self there's a prohibition on corporal punishment that's correct all right so so you know but but the the recantation evidence comes via briana's mother verjee and at the testimony is not confident for one thing her writings are such that oftentimes we don't even know what she's saying because the language is not credibility of well we have we have a child she is very young we have a child saying that she lied her mother is saying that she lied she asks for forgiveness were there and the police investigated the situation and gave her a police report she said oh good now i can take the stuff arnie duncan who was the superintendent who was a chief executive officer at the time to try to get that transfer those two children were trying to get transferred out of her class so there was a clear motive for a falsehood and i would submit that with with this tangle of incompetent evidence in the record that it shouldn't come in with respect to the charge against this rule to the extent that it's called the tory evidence it should be considered anything for a couple things but i will give you two  these were documents that she was preparing on a daily basis to document pursuant to their agreement what was going on in the classroom they were very informal the document that had the date change was an e mail o told the contemporaneously lawyer told the social worker at the school about contacting the office by using the buzzer he said that at the beginning he said that at the end that he had done that he had contact put on a witness who testified she was there all the time and that she didn't get a call like that they did not put a witness on to corroborate lloyd that in fact that occurred that is an integral part of his story from the very beginning and it doesn't it doesn't stand up to scrutiny i have lots of other things to say but believe my time's up if you have any further questions i'd be happy  to use it's just the most other form of rank double hearsay so i mean you say there was no objection i guess we'll have to we'll have to really scour the record to see if there was an objection to this kind of testimony and do you agree with counsel that the hearing officer says she always lets everything in and then she figures out what she's doing later i can psyche the record so that you don't have to you need to because there's a serious debate here about what the record shows testimony was and the crucial issue is the manifest way and the only way you can really determine whether the manifest weights towards the hearing office fighting is to scour the record and truly review it to see whether the objections were really there or whether they weren't there or whether the hearing officer pretty much said the door is open and i'll figure it out i'll sort it all out if it's testimony taken in the presence of person really a deposition what the but the teacher's attorney was allowed to do was put in statements that he would tape recordings that he had made outside of the presence of nothing i don't take a position on what actually was the case but there was testimony presented that because of of his system the maalik making up stories was administrative agency of the administrator the hearing officer is is not doesn't didn't purport to possess the expertise of evaluating the courts the court's decision to dismiss or so that no other child is submit is subjected to rules cruel and well you know that very simple i understand that and i certainly as you as human beings as a court were not precluded from having human concerns about protecting other children but on the other hand up meet the school itself rejected the constant requests to