Robert P. Mosteller (*)
The purpose of this symposium is to examine the treatment of children as victims and witnesses in criminal trials, most frequently involving sexual abuse, over the last quarter of the twentieth century and, from that experience, to draw lessons. In this essay, I examine what we have learned about the hearsay exception for "statements for purposes of medical diagnosis or treatment." (1) Earlier, I studied this exception as applied in child sexual abuse prosecutions and found it being stretched beyond the bounds of its theoretical justification. (2) In this essay, I reexamine our national experience with the exception over the past decade and find both a maturation of the exception and at least a partial disintegration.
Briefly, the hearsay exception admits statements made by a person for the purpose of either receiving treatment or allowing a doctor to diagnose without any expectation of treatment. (3) The statements may concern the individual's present symptoms, medical history, or the general character of the condition or injury that prompted the medical visit. To be admissible, the statements must be "reasonably pertinent to diagnosis or treatment," apparently from the perspective of either the declarant or the medical expert. Although central to the exception, no definition of the term "medical" is provided in the rule itself or in the accompanying commentary. Finally, the availability or unavailability of the person who made the statement is irrelevant to admissibility.
The exception is applied in a relatively straightforward and uncontroversial manner in typical civil cases involving accidents, injuries, sickness, and treatment. Its use is far more debatable as applied in child sexual abuse cases when one of the key issues is whether a child's statements describing sexual abuse, particularly statements identifying the abuser, are admissible.
To illustrate how the use of the exception can, in my judgment, be very troubling, consider the following hypothetical case:
A four-year-old female child, in the care of a single mother and her current live-in boyfriend, is found by social workers to be malnourished and poorly clothed. She is also apparently emotionally withdrawn. A physical examination reveals irritation in the genital area that is suggestive of sexual abuse several days earlier, but could also be fully explained in other ways. When asked by the examining pediatrician about her genital area, the child responds with very little information and the best that can be determined is that "it hurt." Because of the conditions of her care, the child is temporarily taken from her mother's custody. While in emergency care, the child is interviewed several times by social workers trying to determine whether sexual abuse occurred. She provides no additional information that would suggest sexual abuse. The interviews are not recorded.
Investigators continue to suspect abuse because of an unproven but reported incident of sexual abuse of a child two years earlier by Buddy, the mother's live-in boyfriend. The child is sent to a pediatrician who works regularly with the Department of Social Services in detecting and treating sexual abuse. The doctor is briefed on all the information in the case and the suspicions regarding Buddy. He conducts no physical exam, because the symptoms are no longer present. Without any witness present or any recording made, and with very few notes, the doctor interviews the child. He reports that the child told him that "Buddy hurt her bottom with his pee pee," writing this quotation in his notes. The child never repeats a statement of this sort in later interviews.
Buddy is charged with child sexual abuse. The child is not called as a witness by the state; she is found incompetent to testify because she does not understand the oath. The trial judge rejects the defense's objection based on hearsay and Confrontation Clause grounds, and allows the pediatrician to testify to the child's statement to him under the "medical examination exception," the doctor explaining that the inquiry was pertinent to the child's placement in foster care, away from Buddy. …