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Univ. of South Carolina School of Law

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Friday, September 11, 2009

Identity: Court Of Appeals Of Texas, San Antonio, Finds Rule 803(4) Covers Statements Of Identification By Child Declarants

Like its federal counterpartTexas Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements 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. 

Generally, under this exception, a declarant's statements about the general source of an injury are admissible under this exception, but statements identifying the source of the injury. Thus a witness such as a doctor could testify that a patient told him, "I broke my arm when I was pushed down the stairs" but could not testify that a patient told him, I broke my arm when Dennis pushed me down the stairs." 

But what about when the patient is a child who lives with the alleged assailant? The identity of an assailant might not generally be "reasonably pertinent to diagnosis or treatment," but is the situation different when the patient is a child who presumably will return to live with the person who assaulted him? Courts are split on the issue, with the most recent court to weigh in being the Court of Appeals of Texas, San Antonio, in Little v. State, 2009 WL 2882932 (Tex.App.-San Antonio 2009).  
In LittleLeon Little was convicted of thirteen counts of indecency with a child by contact and aggravated sexual assault based upon acts that he allegedly committed against S.E., a thirteen year-old. After the death of he paternal grandmother, with whom S.E. had lived, S.E. moved in with an elderly neighbor, John Welch, and weeks after Little moved in with Welch as well, he allegedly began sexually assaulting S.E. 

One day while Little was sexually assaulting S.E., her cousins knocked on the door of Welch's home. S.E. put on her shirt to answer the door, but buttoned her shirt incorrectly. Her cousins left, then came back and told S.E. she needed to go with them to her aunt's house. When she got there, her aunt and cousins confronted her about what was going on; S.E. told them what was happening. Her aunt called the police. After S.E. spoke with police, she was taken to the hospital and examined by a Sexual Assault Nurse Examiner (SANE).

S.E. discussed the details of the sexual assaults with the SANE, Betty Mercer, who later read to the jury statements made by S.E. about the assaults, including statements identifying Little as the assailant. After Little was convicted, he appealed claiming, inter alia, that statements of identification are inadmissible under Texas Rule of Evidence 803(4). The court disagreed, noting that it had recently held that

Statements by a suspected victim of child abuse about the cause and source of the child's injuries are admissible under an exception to the rule against hearsay pursuant to Texas Rule of Evidence 803(4), which provides an exception to the hearsay rule for '[s]tatements made for the 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.' To qualify for this exception, the suspected child abuse victim must understand the importance of being truthful with medical personnel. Courts should therefore consider whether the child had an appreciation for why the statements were made when determining the applicability of this hearsay exception.

In response, Little argued that there was "no evidence S.E. understood the importance of being truthful when describing the sexual assaults to Mercer, and consequently the statements served only to bolster S.E.'s testimony." The court again disagreed, finding that

The record shows that when S.E. met with medical personnel following her outcry, she acknowledged she was there "because of Leon....he raped [S.E.]." She also acknowledged to Mercer that Leon told S.E. "he was going to get [her] protection because he did not want to go to jail by...getting [S.E.] pregnant." Additionally, S.E. testified she had been afraid to tell anyone about the abuse because she knew her father would blame her and hit her when he found out; nevertheless, she made the decision to talk to her family and Mercer about the sexual assaults. The examination took place in a hospital, Mercer identified herself as a nurse, and Mercer believed she told S.E. that she was there for diagnosis and treatment. Reviewing the entire record, we conclude the evidence is sufficient to support a finding that S.E., who was thirteen at the time of the assaults, understood the need to be truthful.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/09/like-itsfederal-counterparttexas-rule-of-evidence-8034-provides-an-exception-to-the-rule-against-hearsay-forstatements-mad.html

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