Children and Statements for the Purpose of Medical Diagnosis or Treatment: A Challenge to Scientific RealityJean Z. Dickson*ABSTRACT: The medical diagnosis hearsay exception is based on the
assumption that the declarant's motive of obtaining improved health will
guarantee the statements' trustworthiness. While some state and federal
courts have applied this exception to admit statements made by young children,
its application in such situations often refutes the psychological
reality and the recognition by the Supreme Court that children are unable
to make medical decisions for themselves. The basic difficulty
with the medical diagnosis exception as applied to young children is
that its basic premise of reliability is inconsistent with the
scientific reality of children's competency. Alternatives must be
considered in order to find such evidence truly trustworthy. The hearsay rule on its face may appear simple and fair. Statements made by one not testifying in court that are offered into evidence to prove the truth of the matter asserted are not admissible.1 However, the courts and the legislatures have recognized many exceptions to this rule.2 These exceptions are primarily based on the premise that, under certain circumstances, hearsay statements nevertheless possess circumstantial guarantees of trustworthiness sufficient to justify the admission of the statement even without the declarant's presence.3 One such exception, embodied in Federal Rule of Evidence 803(4), provides for the admission of "statements made for purposes of medical diagnosis or treatment."4 Such statements may include the declarant's medical history, past pains, and general reflections as to the cause of such pain, provided that such statements are "reasonably pertinent to [such] diagnosis or treatment."5 The exception is based on the general notion that the declarants motive of obtaining improved health will guarantee the statement's trustworthiness.6 This additional guarantee of trust-worthiness eliminates other general hearsay concerns.7 This Note criticizes the application of this exception towards very young children,8 where the child's "motive in making a statement to a doctor becomes questionable.9 While state and federal courts have applied this exception to admit statements made by young children, its application in such situations often refutes the psychological reality and the recognition by the Supreme Court that a child is unable to make medical decisions for himself or herself.10 In 1974, Congress passed the modern version of
the Federal Rules of Evidence.11
Along with passing rule 803(4), Congress also considered many other
hearsay exceptions and rules of evidence.12
However, the lack of legislative history suggests little research and
analysis took place in the application of this rule to young
children. Generally, rule 803(4), along with other hearsay
exceptions, was proposed because of a perceived necessity and because of
the belief that such statements carried a certain indicia of
tmstworthiness.13 Rule
803(4)'s reputation for truthfulness was based on the premise that the
patient knows the kind of treatment he receives largely depends on the
accuracy of the information he gives to the doctor.14
Notes from the Judiciary Committee show no controversy in the passing of
rule 803(4).15 The
legislative history available also shows no specific discussion of how
these rules might apply to young children.16
Rather, Congress passed rule 803(4) based on the general presumption
that a patient giving medical information to a doctor17
is more likely to tell the truth.18 A History of Inconsistent Treatment by the Courts Rule 803(4) has been used countless times in admitting the out-of-court statements of young children. Treatment by the courts of this rule has varied tremendously. While some courts have found rule 803(4) statements to be as reliable as any other hearsay statements, other courts have questioned its reliability when applied to young children. As a result, the application of rule 803(4) by
the states has often been inconsistently applied to children.19
In reviewing the findings of the courts, it is necessary to understand
the separate "elements" of the rule. To come within the
rule 803(4) exception under federal and state law,20
two requirements must be met: (1) the statements must be made for the
purposes of medical diagnosis or treatment, and (2) the statement must
be "reasonably pertinent to diagnosis or treatment."21
Courts have analyzed rule 803(4) under both elements.22 Motive to Seek Treatment Part of the confidence in rule 803(4)'s inherent reliability is based upon the declarant's motivation to speak truthfully because he or she is speaking to a doctor and has an interest in improved health.23 However, with young children, the premise that children are more likely to speak truthfully in order to receive better medical care is questionable. A majority of the courts have found that either the child possessed sufficient motive, or corroborating evidence existed in order to admit to the out-of-court statements. One of the most prevalent cases is State v. Nelson, in which the Wisconsin Supreme Court found a four-year-old girl had the motive to speak truthfiilly.24 The child, T.N., had made several statements regarding alleged abuse to two psychologists.25 The court concluded, "a child is no less aware of the existence of emotional or mental pain than physical pain, and thus, is equally aware of the necessity and beneficial nature of therapy."26 The court believed T.N. was able to comprehend she was in the process of receiving medical attention based upon four factors: (1) the therapy sessions were "scheduled and conducted in a manner consistent with the provision of diagnosis and treatment," (2) T.N. had regularly scheduled appointments, (3) T.N. was aware that the psychologist was "not her peer,"27 and (4) T.N. was a "very intelligent child."28 However, the dissent in State v. Nelson urged rejection of these statements because of the lack of the child's motivation for truth-telling. The dissent pointed out there was absolutely no evidence in the record that the child knew the therapy sessions were for the purpose of medical diagnosis or treatment.29 The dissent noted the psychologist's technique of questioning the child involved play and "the affirmative evidence of reliability that would be induced by a consciousness of the fact of treatment was entirely absent."30 In sum, if the play therapy made the child feel completely at ease, it actually became less likely that the child would perceive the psychologist to be an authority figure and less likely that the child would feel compelled to speak truthfully.31 The dissent also believed the child's young age was a determinative factor.32 The North Carolina Supreme Court in State v. Smith recognized the children, ages four and five, were unable to independently seek out medical attention.33 However, the court further found the children had relied on their grandmother to receive medical treatment. As a result, the court held the testimony of the children's grandmother regarding her conversations with the children was admissible under rule 803(4).34 (The Smith court did find the similar testimony of two rape task force volunteers to be inadmissible under rule 803(4).) In W.C.L. v. State,35 the Colorado Supreme Court affirmed the lower court's finding that the application of the medical diagnosis exception was unreliable.36 The court found no evidence in the record that would show a three-year-old knew of the need to be truthful or that the victim understood the purpose of the questioning by the doctor.37 The district court had found the child was too young to understand the meaning of telling the truth, and thus rejected the assumption the child understood the need to be truthful with a physician.38 The Maryland Court of Appeals rejected the application of rule 803(4) to young children.39 In Cassidy v. State, the out-of-court declarant was a two-year-old, who, in response to the doctor's question, "Who did this?," answered with "Daddy."40 The court not only recognized the child lacked any motive to seek medical diagnosis or treatment, but also held a child of such a young age was unable to develop such a motive. In this case, the interviewing doctor testified: "I don't believe that a two-year-old is capable of understanding a concept like why somebody is asking questions." The court also found the child was not advanced enough to possess the physical self-interest which was at the "very core" of the rule.41 Such a young child was not mature enough to understand the "critical cause-and-effect connections between accurate information, correct medical diagnosis, and efficacious medical treatment."42 In State v. Boston, the Ohio Supreme Court also recognized the inherent difficulty in finding a young child actually had the motive to seek medical treatment.43 This court criticized other courts' application of the rule as being "result-oriented," and rejected a liberal application of rule 803(4).44 However, just three years later in State v. Dever,45 the Ohio Supreme Court found the approach in Boston had been overly restrictive. Although the court in Dever recognized a young child would probably not personally seek treatment, the court nonetheless found a child's statements relating to medical treatment should not be deemed untrustworthy. The court reasoned:
In these findings, the Ohio Supreme Court made several very significant assumptions about the cognitive capabilities of children. Finally, in White v. Illinois, the Supreme Court briefly addressed the reliability of rule 803(4) as it applied to a four-year-old child.47 The Court found the admission of statements under rule 803(4) did not violate the Confrontation Clause of the Sixth Amendment.48 In so holding, the Court focused on the probative value of the out-of-court statements made by the child. The Court found:
Unfortunately, although the declarant was only four years old at the
time she made the statement, the Court did not recognize the inherent
weaknesses of the above assumption when applied to young children. The Reasonably Pertinent Requirement The medical diagnosis exception also requires the statement be "reasonably pertinent to diagnosis or treatment."50 This requirement permits the admission of evidence in the form of statements which relate to medical history, past or present symptoms, or the general character of the injury's cause.51 Courts have admitted the statement by finding "a fact reliable enough to serve as a basis for a diagnosis or treatment is also reliable enough to escape hearsay proscription."52 The standard of what is "reasonably pertinent" has been applied by the courts from several angles. In United States v. Iron Shell, the Eighth Circuit Court of Appeals first addressed the issue of admitting the identification of the perpetrator under rule 803(4).53 In its analysis, the court pointed to the following illustration from the Advisory Committee's notes: a patient's statement that he was struck by an automobile would be admissible under this exception, but not his statement that the car had gone through a red light.54 In Iron Shell, the court admitted a physician's statement of what a nine-year-old girl said to him because it concerned what had happened, rather than who assaulted her.55 However, five years later, in United States v. Renville,56 the Eighth Circuit extended the reach of rule 803(4) and held statements which identified the alleged perpetrator were admissible under the rule. The court held statements made by a child abuse victim to a physician during an examination which identified the alleged perpetrator were reasonably pertinent to treatment.57 In Renville, the alleged child sexual abuse occurred between an eleven-year-old child and her stepfather.58 The court determined because the abuse was intrafamilial, the "exact nature and extent of the psychological problems which ensue from child abuse often depend[ed] on the identity of the abuser."59 Such treatment might include removing the child from the threat of future sexual abuse or providing further psychological treatment.60 In these cases, the courts have switched the source of the indicia of reliability from the declarant to the physician or other testifying party.61 That is, courts have admitted statements under rule 803(4) by examining what the doctor perceives as "reasonably pertinent." In her dissent in State v. Aguallo,62 Chief Justice Billings of the North Carolina Supreme Court noted the distinction between admitting evidence because the physician was aware of some diagnosis or treatment which would be reasonably pertinent and admitting the statements, and admitting evidence because the declarant was aware of the heightened need for truthfulness.63 Justice Billings warned of "adopting a mechanical rule [which would accept this evidence] ... so long as the recipient of an out-of-court declaration ha[d] a medical degree."64 The Ohio Supreme Court in State v. Boston expressed a similar concern: "Although it is understandable that courts would strive to admit these statements, many courts appear so result-oriented that they emasculate [rule] 803(4) or its federal or sister-state equivalent."65 When the Wyoming Supreme Court followed this trend,
the court defended its decision on grounds of public policy. The
court held "the function of the court must be to pursue the
transcendent goal of addressing the most pernicious social ailment which
afflicts our society ... child abuse.66
This court did not discuss the child's motive in making a statement, and
instead focused on the "reasonably pertinent" requirement.67
The court determined the doctor was involved in an attempt to treat the
victim's bruises, and therefore the identity of the perpetrator was
pertinent.68 However, the
dissent harshly criticized this decision, asserting the court had
"succumb[ed] to the temptation to stretch, expand and distort the
rules of evidence to rationalize a finding of guilt."69
The dissent rejected the finding that the doctor needed to know who caused
the bruises in order to treat the child's injuries.70
However, the dissent also failed to address the issue of whether the child
possessed a sufficient motive.71 The Reality of a Child's Motive Although the courts have admitted rule 803(4) evidence based upon a
finding of the child's motive to seek diagnosis or treatment, the Supreme
Court has challenged the ability of a child to make medical decisions for
himself or herself In addition, studies suggest the likelihood and
ability of a child to speak truthfully while seeking medical treatment are
no higher than in a situation in which a child makes a statement for some
other purpose. Much of this criticism stems from the rule's first
element which requires the statement be made for the purpose of medical
diagnosis or treatment.72 Judicial Treatment of a Child's Ability to Make Medical Decisions for Himself Although Parham v. J.R. did not address rule 803(4), the Supreme Court in this particular case found a child was unable to make medical decisions for himself or herself.73 In reviewing Parham, it must be considered: if the child does not have the ability or competence to make medical decisions, how can it be any more likely that the child will speak truthfully to a physician than to anyone else?74 Parham involved a class action brought by minor children alleging they had been deprived of their liberty without procedural due process by Georgia's mental health laws.75 Georgia law permitted the commitment of minors to mental health facilities by the consent of the child's parents or guardians.76 While Parham recognized the discretion of the State and of the child's parent or guardian to commit the children77 and recognized the child's due process right,78 much of the decision focused on a parent's authority to decide what is best for his or her child.79 In finding a parent had the authority to commit his or her child,80 the Court held "most children, even in adolescence,81 simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment ... [p]arents can and must make those judgments."82 The Court acknowledged a long-standing reliance upon the judgment of the parent, which included a "high duty to recognize symptoms of illness and to seek and follow medical advice."83 In a concurring opinion, Justice Stewart found "[f]or centuries it has been a canon of the common law that parents speak for their minor children.84 The findings of social scientists have been consistent with the reasoning of Parham. Ellis noted three justifications for forcing hospitalization on young patients:
Of most significant interest is the first justification, which is a
clear recognition that children may be unable to make statements for the
purpose of medical diagnosis and treatment. The Reality of Scientific Data Scientific research also has challenged the premise that a young child is more likely to be truthful when making statements for the purpose of medical diagnosis or treatment. Social scientists have not only questioned the ability of a child to make medical decisions themselves,86 but have also examined a young child's ability to understand and respond to questions which a doctor might ask of him or her. The reliability of a child's statements has been questioned by both legal scholars and social scientists for many years.87 A child may have difficulty distinguishing between the literal meaning of the message and what the speaker actually intends to convey by that message.88 In doing so, the child may not understand what exactly a doctor is asking. It is this lack of the child's understanding which must be considered in light of rule 803(4). As a young child processes a question which has been asked by a doctor, the child is less likely to understand the meaning intended, and more likely to experience difficulties in understanding the question because the child may make "unwarranted, problem-repairing inferences" about the doctor's intended meaning.89 In addition, a child is likely to answer a question no matter how illogical or confusing.90 Researchers have found children will answer questions which are logically unanswerable, such as, "Is milk bigger than water?"91 This research shows how a child will attempt to locate an answer, no matter how unanswerable the question.92 As a result of these observations, there has been significant analysis concerning the extent to which the suggestibility of questions asked may confuse a young child. Some studies have indicated the degree to which a person becomes confused from suggestive questioning depends upon age, and other studies have found age to not be a determinative factor.93 The more recent data, however, indicate young children are indeed more suggestible than adults and older children.94 The degree of a young child's suggestibility relates to the child's ability to recall memories.95 Research has demonstrated children have a lesser capacity to recall postevent information accurately.96 Consequently, a young child generally produces little information in free recall and the questioning adult must resort to specific questions.97 As children remember far less information than do adults, this too may result in a greater likelihood of being misled.98 If a doctor assumes abuse has occurred and asks a leading question, there is a greater likelihood of the child agreeing with the doctor's suggestion than there would be with an adult.99 The doctor or other investigator therefore is in a powerful position to influence the statements made by a child and the reliability of the statements is diminished. Finally, other studies have questioned the
cognitive and reasoning capacity of younger children as compared to older
children. For example, the American Academy of Pediatrics suggests
written consent be obtained for elective procedures for any minor age
thirteen or older, and that verbal consent to research procedures should
be obtained for children age seven or older.100
Such guidelines recognize younger children do not have the same cognitive
capacity to understand the significance of the recommendations and
procedures.101 Alternatives If the court finds a young child does not have a selfish interest in seeking medical diagnosis or treatment, then it is questionable whether rule 803(4) should be relied upon in admitting a child's statements made to a physician. Some courts have admitted these statements where there is "corroborating evidence" or some other indicia of reliability besides the fact the statements were made to a doctor. Also, rule 803(24) provides for a "catch-all" or residual exception. One of the most commonly suggested alternatives (as well as one of the most commonly used justifications for admitting evidence under the medical diagnosis exception) is the requirement of corroborating evidence.102 Corroborating evidence establishes the truth of the statement asserted.103 Its purpose is "to strengthen; to add weight or credibility to a thing by additional conforming facts or evidence."104 Where a child's statements and motive are in question, corroborative evidence may offer an additional degree of proof.105 However, such evidence does not necessarily make the statement itself more reliable as the strength of the evidence of a young child's incentive to tell the truth remains questionable.106 Not far from a requirement of corroborating evidence, a court may also require an independent finding of indicia of reliability before admitting such statements. "Indicia of reliability" includes factors (other than corroborative evidence) such as the age of the child, the relationship of the victim to the accused, the child's relationship to the persons to whom the statements are made, and the terminology used by the child.107 For example, in Roark v. Roark, the children's guardian argued requiring the children to testify would be too traumatic.108 However, the court found the traumatic effect to the children could not serve as a basis for admitting the children's out-of-court statements.109 Indiana law required a hearing which would establish the child's unavailability and determine whether the statement contained "sufficient indicia of reliability."110 In Idaho v. Wright, the Supreme Court further defined "indicia of reliability"111 and made the distinction between corroborative evidence and indicia of reliability.112 The Court addressed the question of the admissibility of out-of-court statements under the catch-all rule.113 Writing for the majority, Justice O'Connor stated the "relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief ... [The hearsay statement] must possess indicia of reliability by virtue of its inherent trustworthiness, not by references to other evidence at trial."114 In essence, the Supreme Court found corroborative evidence was not relevant to the issue of reliability.115 However, by relying upon the strength of corroborative evidence or some independent indicia of reliability, the problem becomes identifying at what point the indicia of reliability becomes more important than the statement itself. That is, if the indicia of reliability carries more evidentiary weight than a statement under rule 803(4), one must carefully question the value of admitting the statement at all. Lawyers and courts may also rely upon other available statutory exceptions in order to admit out-of-court statements by young children. Probably the most common alternative is the "catch-all" exception, rule 803(24). Rule 803(24) not only requires "equivalent circumstantial guarantees of trustworthiness," but also requires a finding of "actual necessity"116 For example, if a court finds a young child did not have the required "motive" of seeking medical diagnosis or treatment, then the "catch-all" exception would require two additional indicia of reliability-trustworthiness and necessity.117 Other courts have addressed the possibility of creating a separate "child victim" exception. For example, the Pennsylvania Superior Court recognized a "child victim" exception.118 This exception essentially admits a child's hearsay statement where it related to a question of abuse.119 However, the rule also required some additional indicia of reliability; and is not much different than rule 803(24). In the case of a statement identifying the
perpetrator, one court suggested the statements be admitted under rule
801(D)(1)(c).120 Under this
rule, the statement is by definition not hearsay.121
The rule excepts statements of prior identification of a person, provided
the circumstances demonstrate the reliability of the prior identification.122
The trial judge would be required to determine the reliability of the
surrounding circumstances under which the identification was made.123
However, this alternative would only apply where the statement in question
involved an identification,124 and
would not be applicable in questions of more standard applications of the
rule. Conclusion The medical diagnosis exception was based on the inherent reliability of statements made for purposes of medical diagnosis or treatment. Both Congress and the courts have accepted this premise. While some courts have addressed the question of its applicability to young children, other courts have refused to even recognize there is contested issue. Those courts often have expanded the use of this rule by admitting evidence which simply is not "reasonably pertinent to diagnosis or treatment" by traditional definition. The abuse of the medical diagnosis exception as applied to children is most prevalent when contrasted with the scientific realities of the competence and ability of children to have the motive to speak truthfully to a doctor for medical diagnosis or treatment. Alternatives must be considered in order to find such evidence truly trustworthy. The basic difficulty with the medical diagnosis exception as applied to young children is, quite simply, that its basic premise of reliability is inconsistent with the scientific reality of children's competency. For years, scholars have acknowledged this
inconsistency.125 In 1952,
Professor Cleary pointed out the crucial difference between scientific and
legal analysis: "Most substantive law is concerned with how people
should act."126
Conversely, science examines the empirical world, and where the data do
not support the theory, "the theory is discarded."127
In making an assumption of inherent reliability, this crucial distinction
cannot be overlooked.128 Endnotes
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