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Constitution: Due Process Right to Hearing to Assess Credibility of Witness

Posted by Ted A. Schmidt | Dec 31, 2020 | 0 Comments

Constitution: Due Process Right to Hearing to Assess Credibility of Witness

Solorzano v. Jensen, 1 CA-CV 19-0772 (App. Div. I, December 29, 2020) J. Winthrop

IN DECIDING ISSUE REQUIRING ASSESSMENT OF CREDIBILITY OF WITNESS DUE PROCESS REQUIRES COURT ALLOW SWORN LIVE TESTIMONY

Father petitioned to modify child support and the parties agreed to submit the issue to the  court on the briefs with affidavits and documents in lieu of live testimony. The version of the “facts” presented by the Mother and Father were vastly different requiring an assessment of the credibility of the parties in deciding the issue. The trial court found for the Mother stating it found the Father “not credible” and believed the Father was “attempting to hide his actual income.” Father sought post-trial relief on the basis the court had “failed to allow testimony to resolve the issue of credibility.” The trial court denied this motion and the Father appealed. The Arizona Court of Appeals vacated and remanded.

Despite the fact the Father had agreed to limit his presentation to briefs, affidavits and documents, particularly where the interests of a child are at issue, due process requires the court allow sworn oral testimony when assessing credibility of witnesses.   

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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