Saturday, November 8, 2008
Long-Term Care: Court Of Criminal Appeals Of Texas Addresses Admissibility Of Statements Made During Long-Term Therapy
In its recent opinion in Taylor v. State, 2008 WL 4724147 (Tex.Crim.App. 2008), the Court of Criminal Appeals of Texas addressed a fascinating question: Does the hearsay exception for statements made for purposes of medical diagnosis or treatment "provide for the admissibility of statements made to a licensed professional counselor in the context of on-going, long-term therapy?" And its answer, while complicated, I think was appropriate given the complexity of the issue.
In Taylor, Rashik Ali Taylor was convicted of the offense of aggravated sexual assault of a child younger than fourteen and sentenced to 10 years incarceration. The alleged victim, J.B., was 13 years-old at the time of the offense and the daughter of a friend of the defendant. In the wake of the alleged crime, the J.B. asked a school counselor, "[W]hat does rape mean?" J.B. thereafter disclosed her ordeal to the school counselor, who in turn reported it to Child Protective Services, and J.B. began to see a therapist "through Child Advocacy."
Apparently, J.B. was diagnosed as bipolar and with Post Traumatic Stress Disorder, and she began to see Denise Volet, "a licensed professional counselor, formerly with Child Protective Services and in private practice at the time of trial, with extensive experience counseling victims of sexual assault and abuse." And apparently, several months after the alleged crime, and after J.B. had been seeing Volet on a weekly basis, J.B. relayed the details of the sexual assault to her.
Over Taylor's objection, the trial court admitted Volet's testimony concerning J.B.'s description of the assault under Texas Rule of Evidence 803(4), which provides an exception to the rule against hearsay for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." The First Court of Appeal affirmed, prompting Taylor's appeal to the Court of Criminal Appeals of Texas.
That court noted that Taylor's first objection was that Vogel's qualifications as a medical professional were not shown to "conform to the rule." But it rejected that argument, finding that "[i]t is clear that the drafters of the federal rule did not think so, for they expressly designated that in order for the exception to apply 'the statement need not have been made to a physician....' Indeed, '[s]tatements to hospital attendants, ambulance drivers, or even members of the family might be included.'" (quoting the Advisory Committee's Note to Federal Rule of Evidence 803(4)).
Having rejected this objection, however, the Court of Criminal Appeals of Texas nonetheless found that for J.B.'s statements, which included statements identifying her assailant, to be admissible under Texas Rule of Evidence 803(4), "it [wa]s incumbent upon the proponent...to make the record reflect both 1) that truth-telling was a vital component of the particular course of therapy or treatment involved, and 2) that it is readily apparent that the child-declarant was aware that this was the case."
The court created this first requirement because
"reclining on a therapist's or psychiatrist's couch is not quite the same as sitting in the emergency room in the immediate aftermath of an injury or on the physician's cold examination table in the interest of diagnosing and curing some exigent disease or ailment. In the latter contexts, it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor's questions are designed to elicit accurate information and that veracity will serve their best interest....In the therapist's office, however, this tacit presumption is far less compelling. It is not always so readily apparent (indeed, it may not always be accurate ) in the mental-health context that truth-telling is vital. Not even an older, more mature child (maybe not even an adult) will necessarily recognize and appreciate the necessity (assuming there is a necessity) always to tell a mental-health provider the truth in order to assure the efficacy of treatment."
And the court created the second requirement because statements identifying an assailant early during the diagnosis/treatment process
"might be pertinent because it is important for a physician to discover the extent of the child's 'emotional and psychological injuries'-particularly when the perpetrator might be a family or household member and it is important to remove the child from the abusive environment....It is far less obvious [however] how that information will necessarily be pertinent, long after the fact of the abuse, in an on-going course of mental-health treatment or therapy. At that point, knowing who is at fault for the emotional or psychological trauma may not be critical to every treatment plan, especially if the perpetrator was not a family or household member. We think it is appropriate, therefore, to require that the proponent of the hearsay exception make the record reflect that it was important to the efficacy of the treatment that the mental-health professional know the identity of the perpetrator."
Applying this analysis, the court reversed, concluding that:
"The appellant was not a family or household member-he was, in fact, barely more than a stranger to J.B. It is not readily apparent that knowing the appellant's identity was pertinent to Volet's treatment of J.B. for the trauma of the sexual assault, and it seems unlikely to have aided Volet in any material way in treating the residual anger issues that J.B. had with her mother. This is not to say that Volet could not have testified to establish that appellant's identity was pertinent to J.B.'s treatment in a way that is not obvious to us. But she was never asked to do so during her testimony, and it is not otherwise apparent on the record how it might be pertinent. Moreover, there is nothing in this record that makes it readily apparent that J.B. understood that truthfulness about the identity of her assailant was important to the efficacy of her treatment for these issues. We cannot presume these predicate facts without effectively relieving the proponent of the hearsay evidence (here, the State) of its burden to establish the existence of a valid exception to the hearsay rule. On this state of the record, we conclude that the trial court abused its discretion to admit Volet's testimony of J.B.'s out-of-court declarations, at least to the extent that they identified the appellant as the perpetrator."
As, I said above, the court's analysis was complicated, but given the complexity of the issue, I think that requiring these on-the-record findings was the proper way to ensure reliability.