Child Competency and Hearsay Statements
The first big decision out of the Ohio Supreme Court last week was State v. Muttart, a case in which the defendant had been convicted of three counts of raping his four-year daughter. The trial court had allowed the doctors and nurses to testify to statements made to them by the daughter. The appellate court had reversed one of the convictions, holding that before the hearsay statements could be admitted, the trial court had to determine that the child was a competent witness under Evidence Rule 601(A).
There was some merit to that argument; back in 1994, in State v. Said, the Supreme Court had held that a competency determination was necessary before statements could be admitted under Evid.R. 807, which establishes a broad exception for hearsay by a child in sex abuse cases. The Court had also said, though, that admission of "excited utterances" by children didn't require a preliminary competency determination. The question was whether these statements -- falling under the hearsay exception of statements made for purposes of medical treatment or diagnosis, under Evid.R. 803(4) -- were closer to excited utterances or to the 807 statements.
When I'd previewed the case after oral argument in May, I'd said, "Given the language in the 1994 decision, I think the Court's going to be hard-pressed to distinguish 807 statements from those made under 803(4)." Yeah, right. In unanimously reversing the court of appeals, the Supreme Court not only had no trouble distinguishing statements under the two rules, but gave some reason to suspect that if it had to do Said over again, it'd come to a different conclusion.
All is not lost, however. Even if the statement was made for purposes of medical treatment and diagnosis, that doesn't mean admission under 803(4) a foregone conclusion; the trial court still has to determine whether it's reliable. The Court gives a helpful list:
The trial court's considerations of the purpose of the child's statements will depend on the facts of the particular case. At a minimum, we believe that a nonexhaustive list of considerations includes (1) whether the child was questioned in a leading or suggestive manner, (2) whether there is a motive to fabricate, such as a pending legal proceeding such as a "bitter custody battle," and (3) whether the child understood the need to tell the physician the truth. In addition, the court may be guided by the age of the child making the statements, which might suggest the absence or presence of an ability to fabricate, and the consistency of her declarations. In addition, the court should be aware of the manner in which a physician or other medical provider elicited or pursued a disclosure of abuse by a child victim, as shown by evidence of the proper protocol for interviewing children alleging sexual abuse.
That's a lot of "in additions" there, but it's helpful to have on hand so that you can persuade a trial judge that admission isn't automatic.
The other case yesterday was State v. Geeslin, which concerns the due process implications of police destruction of evidence. We'll delve into that tomorrow. See you then.