Children and Statements for the Purpose of Medical Diagnosis or Treatment: A Challenge to Scientific Reality

Jean 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:

Once the child is at the doctor's office, the probability of understanding the significance of the visit is heightened and the motivation for diagnosis and treatment will normally be present.... Absent extraordinary circumstances, the child has no more motivation to lie than an adult would in similar circumstances.  Everyday experience tells us most children know that if they do not tell the truth to the person treating them, they may get worse and not better.46

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:

a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony.49

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:

(1) Children are not old enough to make a mature judgment about whether they need treatment or not, and therefore someone else must make it for them.  (2) Children are subject to the decisions made for them by their parents, and a commitment decision is within the scope of parental authority.  (3) Mental disorders are much more treatable when the patient is young, and therefore there is a greater state interest forcing treatment on mildly ill young Persons than on mildly ill adults.85

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

1 Fed. R. Evid. 802.  [Back]
2 See Fed. R. Evid. 80304.  [Back]
3 56 F.R.D. 183, 303 (1973).  [Back]
4 Fed. R. Evid. 803(4).  [Back]
5 Id.  [Back]
6 State v. Nelson, 138 Wis.2d 418, 435, 406 N.W.2d 385, 392 (1987).  [Back]
7 See Wigmore on Evidence, 1362 (Chadbourn rev. 1974) (listing 'trustworthiness" as a major deficiency of hearsay).  [Back]
8 For the purposes of this Note, assume "young children" to be defined as children who are functional below age six or seven.  This guideline, of course, is by no means absolute.  [Back]
9 The rule 803(4) exception goes far beyond statements made to a doctor.  See State v. Smith, 315 N.C. 76, 84, 337 S.E.2d 833, 840 (1985) (court admitted statements made by a four-year-old and five-year-old to their grandmother because the statements "resulted" in their receiving medical treatment).  For further analysis of this case, see Paul F. Herzog, Child Hearsay Vs The Confrontation Clause. Can The Sixth Amendment Survive?, 1 Issues in Child Abuse Accusations 17 (Fall, 1989).  Also, courts have generally admitted the evidence of other professionals.  See In re Appeal in Pima County Juvenile Dependency Action No. 92690, 162 Ariz. 601, 605, 785 P.2d 121, 125 (1990) (court admitted statements to psychiatric social worker as defendant provided no basis for distinguishing the type of therapy and the information obtained from the child was critical to effective diagnosis and treatment).  [Back]
10 See Parham v. J.R., 442 U.S. 584, 603 (1979) (the Supreme Court recognized the inability of children to make "sound" judgments concerning medical care or treatment).  [Back]
11 Federal Rules of Evidence: Hearings on H.R. 5463 before the Senate Committee on the Judiciary, 93rd Cong., 2nd Sess. (1974) [hereinafter, Congressional Hearings).  [Back]
12

See generally Congressional Hearings.  Congress debated a wide range of other evidentiary rules (including, among others, rules relating to writings used to refresh and judicial notice).  Id. at 240, 322.  [Back]

13 Id. at 114.  [Back]
14 Id. at 165.  [Back]
15 Id. at 165.  [Back]
16 At no point in the discussion surrounding the medical diagnosis exception was any reference made to its specific applicability to children.  See generally Congressional Hearings, supra note 11[Back]
17 Rule 803(4) also includes statements made to persons other than a doctor.  See supra note 9[Back]
18 Id. at 175.  [Back]
19

The federal rule has provided the model definition of this exception in the majority of American states (Alaska, Arizona, Arkansas, Colorado, Delaware, Hawaii, Iowa, Maine, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oregon, South Dakota, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming).  Seven states adopted a slightly modified version (Florida, Idaho, Michigan, Oklahoma, New Hampshire, Rhode Island, and Vermont).  Robert P. Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis and Treatment, 67 N. C. L. Rev. 257, n.2 (1989) (citing J. Weinstein & M. Beiger 803 (4) [02], [03] (1987 & 1988 Supp.).  [Back]

20 See Mosteller, supra note 19[Back]
21 Id.  [Back]
22 For a specific breakdown of these two elements in relation to eases involving child sexual abuse, see Mosteller, supra note 19, at 257.  Mosteller identifies two separate rationales behind the rule: "First, a patient has a selfish interest in providing truthful information in order to obtain treatment.  Second, a statement is reliable if a medical expert uses it to form a basis for diagnosis or treatment."  In his analysis, however, Mosteller focuses on the confusion of the two rationales, and not so much on the question of whether the assumptions behind rule 803(4) comport with scientific reality.  Id, passim.  [Back]
23 See See Congressional Hearings, supra note 11[Back]
24 State v. Nelson, 138 Wis.2d 418, 406 N.W.2d 385 (1987).  [Back]
25

Id. at 42227.  This rule has been extended far beyond medical doctors.  Here, the rule was extended to include those statements made to psychologists.  [Back]

26 Id. at 432.  [Back]
27 Id.  [Back]
28 Id.  [Back]
29 Id. at 448 (Heffernan, CJ., dissenting).  [Back]
30 Id.  [Back]
31 Id.  [Back]
32 Id.  [Back]
33 State v. Smith, 315 N.C. 76, 84, 337 S.E.2d 833, 840 (1985).  [Back]
34 315 N.C. at 84. It has long been recognized in the application of rule 803(4) that a statement may still be admitted regardless of whether it is made to a doctor, as long as it is made for the purpose of seeking medical diagnosis or treatment.  For an even more extreme application of this rule, see State v. Justiano, 48 Wash. App. 572, 581, 740 P.2d 872, 878 (1987) (court found the testimony of the investigating doctor regarding what the alleged victim's mother said the child had said to be the equivalent of statements made to a doctor under rule 803(4), because children of tender years were "incapable of expressing their medical concerns to physicians" (emphasis added)).  See also note 9[Back]
35 W.C.L. v. State, 685 P.2d 176, 181 (Colo. 1984).  [Back]
36 Id. at 181.  [Back]
37 Id.  [Back]
38 Id. However, the Court did not hold the child's statements were absolutely unreliable.  Rather, it discussed admitting the statements under another exception, the "residual" exception.  [Back]
39 Cassidy v. State, 74 Md. App. 1, 25, 536 A.2d 666, 678 (1988).  [Back]
40 Id. at 6.  [Back]
41 Id. at 30.  [Back]
42 Id.  [Back]
43

State v. Boston, 46 Ohio St. 3d 108, 120124, 545 N.E.2d 1220, 123436 (1989).  [Back]

44 46 Ohio St. 3d at 124.  [Back]
45 State v. Dever, 64 Ohio St. 3d 401, 596 N.E.2d 436 (1992).  [Back]
46 Id.  [Back]
47 White v. Illinois, 112 S. Ct. 736 (1992).  [Back]
48 Id. at 739.  [Back]
49 Id. at 743.  [Back]
50 Fed. R. Evid. 803(4).  [Back]
51 Id.  [Back]
52

United States v. Renville, 779 F.2d 430, -436 (8th Cir. 1985) (citing 4 J. Weinstein & M. Berger, Weinstein's Evidence 129 (1979).  [Back]

53 United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980).  [Back]
54 Id. at 84, n.10.  [Back]
55 Id. at 84. In Iron Shell, the child was nine years old.  [Back]
56 Renville, 779 F.2d 430.  [Back]
57 Id. at 439.  [Back]
58 Id. at 432.  [Back]
59 Id. at 437. For further discussion, see Mosteller, supra note 19, at 276.  [Back]
60 State v. Boston, 46 Ohio St. 3d 108, 123 (1989) (citing United States v. Renville, 779 F.2d 430, 43738 (8th Cir. 1985)).  [Back]
61 See generally, Paul F. Herzog, Child Hearsay Vs The Confrontation Clause. Can The Sixth Amendment Survive?, 1 Issues in Child Abuse Accusations 19 (Fall, 1989) (discussing Justice Billing's opinion).  [Back]
62 318 N.C. 590, 350 S.E.2d 76 (1980).  [Back]
63 Id. at 601 (Billings, C.J. dissenting).  [Back]
64 Id. at 60001.  [Back]
65

46 Ohio St. 3d at 124.  But see State v. Dever, 64 Ohio St. 3d 401, 596 N.E.2d 436 (1992) (court rejected restrictive approach in interpreting rule 803(4) which the court had previously taken in Boston).  [Back]

66

Goldade v. State, 674 P.2d 721, 725 (Wyo. 1983), cert. denied 476 U.S. 1253 (1984).  See also Case Notes, Evidence - Hearsay - Child Abuse and Neglect - A Child's Statements Naming an Abuser Are Admissible Under the Medical Diagnosis or Treatment Exception to the Hearsay Rule - Goldade v. State, 672 P.2d 721 (Wyo. 1983), 53 U. Cin. L. Rev. 1155 (1984).  [Back]

67 Goldade, 674 P.2d at 725.  [Back]
68 Id.  In fact, the court later stated "in a series of cases this court has recognized that opportunity (that is, the hearsay exception), together with injuries consistent with child abuse, is sufficient evidence to support a conviction for homicide."  Id. at 727.  The court recognized it as a "minimal" standard of proof, but as one which is necessary to protect children from such violence.  Id.  [Back]
69 Id. at 728 (Brown, J. dissenting).  [Back]
70 Id. at 72930.  [Back]
71 Id. at 728.  [Back]
72 The discussion following focuses only on the first element of rule 803(4).  Theoretically, if the court is unable to find that the child had a motive to speak truthfully, the second element of whether the statement was reasonably pertinent to diagnosis or treatment would not be reached.  [Back]
73 See Parham v. J.R., 442 U.S. 584 (1979).  [Back]
74 Note there is also a related question of the second requirement under the medical diagnosis rule.  After all, if the child does not have the ability to make medical decisions for him or herself, this may also affect the question of just how "reasonably pertinent" the information would be to a physician.  [Back]
75 Parham, 442 U.S. at 587.  [Back]
76 Id. at 590.  [Back]
77 Id. at 604  [Back]
78 Id. at 600.  [Back]
79 Id. at 604.  [Back]
80 Id. at 620.  Note that this right is in no way absolute, as the statute also required the superintendent of each hospital to independently assess the child's case.  Id. at 605.  [Back]
81 This Note only addresses the medical diagnosis exception's applicability to young children.  There is a significant distinction between young children and adolescents.  [Back]
82 442 U.S. at 604.  [Back]
83 Id.  [Back]
84 Id. at 621 (Stewart, J. concurring).  [Back]
85

Elliot M. Silverstein, Civil Commitment of Minors: Legal and Clinical Issues After Parham v. J.R., in Psychology, Psychiatry, and the Law: A Clinical and Forensic Handbook (Paperback) 186 (C. Ewing ed. 1985) (citing J.W. Ellis, Volunteering Children: Parental Commitment of Minors to Mental Institutions, 62 Calif. L. Rev. 840916 (1974)).  [Back]

86 Silverstein, supra note 85[Back]
87

See Robert M. Hutchins & Donald Slesinger, Legal Psychology, 35 Psychological Review 25 (1929) (as early as 1929, scholars recognized a "skepticism of the evidence of infants").  This study included an analysis of other hearsay exceptions, including the "spontaneous exclamation" and the significance of "self-interest "in hearsay exceptions.  Id. at 17, 24.  [Back]

88

Carole R. Beal & John H. Flavell, Development of the Ability to Distinguish Communicative Intention and Literal Message Meaning, 55 Child Development 920 (1984).  [Back]

89 Beal & Flavell, supra note 88, at 92627.  [Back]
90

Martin Hughes & Robert Grieve, On Children Asking Bizarre Questions, in Early Childhood Development and Education: Readings in Psychology (Out of Print)(Out of Print) (M. Donaldson, R. Grieve & C. Pratt eds.) 104 (1983).  [Back]

91 Id.at 10414.  [Back]
92

Id. at 113.  The article further warned "[All ... who rely on questioning young children ... can no longer treat the child as merely a passive recipient of questions and instructions, but must instead start to view the child as someone who is actively trying to make sense of the situation he is in - however bizarre it may seem.  Id. at 114.  [Back]

93 Gail Goodman, Children 's Testimony in Historical Perspective, 40 Journal of Social Issues 9 (1984).  [Back]
94

Stephen J. Ceci, David F. Ross & Michael P. Toglia, Age Differences in Suggestibility: Narrowing the Uncertainties, in Children's Eyewitness Memory (Out of Print) (S. Ceci, D. Ross & M. Toglia eds.) 79 (1987).  [Back]

95 Stephen J. Ceci, David F. Ross & Michael P. Toglia, Suggestibility of Children's Memory: Psycholegal Implications, 116 Journal of Experimental Psychology 38 (1987).  [Back]
96

Id.  See also Elizabeth Loftus, Nancy Korf & Jonathan Schooler, Misguided Memories: Sincere Distortions of Reality, in Credibility Assessment (Hardcover) 155 (J. Yuille ed.) (1989) (susceptibility to altered memory in general).  [Back]

97

David Raskin & John Yuille, Problems in Evaluating Interviews of children in Sexual Abuse Cases, in Perspectives on Children's Testimony (Hardcover) (S. Ceci, F. Ross & M. Toglia eds.) 184 (1989).  [Back]

98 Id. at 47.  [Back]
99

Ralph Underwager & Hollida Wakefield, The Real World of Child Interrogations (Hardcover) 30340 (1990).  [Back]

100

Michael A. Grodin & Joel J. Alpert, Informed Consent and Podiatric Care, in Children's Competence to Consent (Hardcover) ( G. Melton, G. Koocher & M. Saks eds.) 95 (1983).  [Back]

101 See Lois A. Weithorn, Involving Children in Decisions Affecting Their Own Welfare: Guidelines for Professionals, in Children's Competence to Consent (Hardcover) ( G. Melton, G. Koocher & M. Saks eds.) 246 (1 983) (author points out that while young children may have some ideas and preferences about what happens to them, children younger than seven years of age are not generally considered competent to make decisions regarding their health care).  [Back]
102

See State v. Boston, 46 Ohio St.3d 108, 127, 545 N.E.2d 1220, 1238 (1989) (court held where the child declarant's statements meet the rationale and policy of a firmly rooted exception to the hearsay rule (such as rule 803(4)), the out-of-court statements are admissible but required an "indicia of reliability," such as corroborative evidence).  But see note 65 (regarding the subsequent restrictions on this holding).  [Back]

103 See In re Tammy M., 555 N.Y.S.2d 176 (1990) (sufficient corroboration where evidence showed defendant had subjected his daughter to at least three beatings, at least one where she was rendered unconscious); State v. Boston, 46 Ohio St. 3d at 127 (the court recognized the presence of physical evidence).  [Back]
104 State v. Higginbottom, 312 N.C. 760, 769, 324 S.E.2d 834, 840 (1985) (citations omitted).  [Back]
105 See Wigmore, supra note 7, at 1420.  "If a statement has been made under such circumstances that even a skeptical caution would look upon it as trustworthy (in the ordinary instance) in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured."  Id.  But see State v. Smith, 315 N.C. 76, 82, 337 S.E.2d 833, 838 (1985) ("The law of this State is that an instruction limiting admissibility of testimony [such as testimony under the medical diagnosis exception] to corroboration is not required unless counsel specifically requests to such an instruction.").  [Back]
106 For a general discussion of why children may not be likely to tell the truth, see Wakefield & Underwager, supra note 99[Back]
107 State v. Boston, 46 Ohio St.3d at 127. But see note 65[Back]
108 551 N.E.2d 865, 869 (Ind. App. 1990).  [Back]
109 Id.  Necessity alone is not enough to justify the admission of hearsay.  For further discussion, see Wigmore, supra note 7[Back]
110 Ind. Code 316153 (1988).  [Back]
111 Idaho v. Wright, 110 S.Ct. 3139 (1990).  [Back]
112 Id. at 3148.  [Back]
113 Id. at 3144.  The "catch-all" rule has a requirement of a finding of trustworthiness.  In comparison, Rule 803(4) assumes such trustworthiness and reliability is inherent in the exception itself.  [Back]
114 Wright, 110 5. Ct. at 3148 (emphasis added).  [Back]
115 For one court's treatment of this decision, see In re Linda S., 560 N.Y.S.2d 181, 184 (Fam. Ct. 1990).  [Back]
116

Rule 803(24) will admit such evidence, if, along with equivalent circumstantial guarantees of trustworthiness, the court determines:

"(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence."  Id.  [Back]

117 For one court's thorough analysis of the application of this rule, see State v. Smith, 315 N.C. 76, 9098, 337 S.E.2d 833, 84348 (1985).  However, the "catch-all" exception has not been without criticism.  See Cassidy v. State, 74 Md. App. 1, 10, 536 A.2d 666, 670 (1988) (court criticized the harmfulness and confusion which may arise through the application of this rule, and how it merely created an uncertainty regarding the application of the hearsay exceptions); W.C.L. v. State 685 P.2d 176, 186 (Colo. 1984) (court rejected application of rule as it "injected too much uncertainty into the law of evidence and impaired the ability of practitioners to prepare for trial").  [Back]
118 In re Tina K., 390 Pa. Super. 94, 98, 568 A.2d 210, 213 (1989).  [Back]
119

42 Pa. Cons. Stat. 5986 (1986) provides:

"A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible in evidence is a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child's family, if a court finds that the time, content and circumstances of this statement provide sufficient indicia of reliability."  [Back]

120 State v. Boston, 46 Ohio St.3d at 124.  But see note 65[Back]
121 Federal Rule of Evidence 801 (D)(1)(c) defines "statements which are not hearsay."  [Back]
122 Fed. R. Evid. 801(D)(1)(c).  [Back]
123 Boston, 46 Ohio St.3d at 124.  But see note 65[Back]
124

The rule explicitly provides for such an exception of a statement "of identification of a person soon after perceiving him." Fed. R. Evid. 801(D)(1)(c).  [Back]

125 Edward W. Cleary, Evidence as a Problem in Communicating, 5 Vand. L. Rev. 277 (1952).  [Back]
126 Id. at 278.  [Back]
127 Id.  [Back]
128 As Professor Cleary stated: "In the realm of honest searching after facts, nothing could be further removed from scientific method than the rules governing procedures used in courts."  Id. at 277.  [Back]

  

* Jean Z. Dickson is an attorney and a judicial clerk for the Iowa Court of Appeals in Des Moines, Iowa.  [Back]

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