The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases
Date
2002
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Law and Contemporary Problems
Abstract
If the Supreme Court were to look at the country’s experience as it did in Lilly to give guidance to the existence of consensus on a “firmly rooted” hearsay exception, it is questionable whether consensus would exist as to statements identifying the perpetrator of abuse. Courts disagree sharply whether such potentially accusatory statements made during an investigative interview, even when conducted by a doctor, can be received under the medical examination
exception. Indeed, if what is required is consensus rather than majority view, that consensus is that, in criminal cases, statements identifying the abuser do not fit within the “medical examination exception.” Rather, to be admissible, they must either satisfy a “medical treatment” exception or demonstrate a modicum of trustworthiness through a specific examination of the declarant’s motivation or the circumstances surrounding the making of the statement. This reform could be accomplished by revising the rule to require a selfish treatment interest in all instances or through more modest but also somewhat more complicated remedies summarized below. A complicated formula for uniform admissibility in all jurisdictions would constitute an unreasonable proposal. It would also be unwarranted in doctrine and unsupported by national experience. Doctrine and our experience, however, are sufficient to yield several clear lines of demarcation guiding decisions on admissibility. Three principles should guide this determination. First, statements, including those identifying the perpetrator, made by children to physicians and those assisting them shortly after discovering the abuse should be admissible. Second, statements should generally be receivable if made during the course of actual treatment. Third, courts must avoid providing a “cookie cutter” method of transforming investigative statements into those made for treatment by mechanically assuming that the child’s motivation changes when the auditor informs the child
that answering questions will help with treatment. (Author Text)
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Keywords
child abuse, child sexual abuse, evidence, testimony, law, review
Citation
Mosteller, R. P. (2002). The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases. Law and Contemporary Problems, 65(1), 47-95.