Wednesday, August 18, 2010
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.
So, does the exception only cover a statement made to a medical professional (or a statement made to a person with the intention that it be passed along to a medical professional), or does it also cover a statement made to a social worker? Most courts have found that Rule 803(4) covers statements made to social workers, which is what the Court of Appeals of Ohio, Ninth District, found in its recent opinion in State v. Evans, 2010 WL 2990871 (Ohio App. 9 Dist. 2010).In Evans, Joseph Evans was indicted on three counts of rape of a minor under the age of thirteen and one count of pandering obscenity of a minor, M.E.
Beckwith-Laube, a licensed social worker since 1989, testified that she has worked as a social worker at Children's Hospital Children At Risk Evaluation ("C.A.R.E.") Center for the past thirteen years. She met with M.E. based on a referral from Children's Services and interviewed M.E. to obtain a history from her before M.E. was examined by the nurse practitioner. Upon completing the interview, Beckwith-Laube informed the nurse practitioner of M.E.'s history to aid the nurse in performing her medical examination. In order to avoid having to repeatedly interview M.E. as to the offenses, personnel from Akron Police Department, Children's Services, and Victim Assistance were able to observe the interview from another room.
After he was convicted, Evans appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to object to Beckwith-Laube's testimony, which consisted of inadmissible hearsay. The Court of Appeals of Ohio, Ninth District, disagreed, first finding that "trial counsel's failure to make objections is within the realm of trial tactics and does not establish ineffective assistance of counsel." Moreover, the court found that it had "previously recognized the testimony of social workers falls well within the non-hearsay provision outlined in Evid .R. 803(4)."