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Monday, December 27, 2010

Diagnosis Rape: Court Of Appeals Of Mississippi Finds Statements Made To Social Worker Admissible Under Rule 803(4)

Similar to its federal counterpart, Mississippi 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, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical" refers to emotional and mental health as well as physical health.

As the recent opinion of the Court of Appeals of Mississippi in Cox v. State, 2010 WL 5093619 (Miss. 2010), makes clear, however, statements do not need to be made to a diagnostician (or even a medical professional) to be admissible under this Rule.

In Cox,  

J.R., while filling her car with gas, was approached by a man, later identified as the defendant, [Patrick] Cox, who threatened to kill her if she did not do what he said. Cox forced J.R. into the backseat of her Chevrolet Equinox, and as she pleaded for him to release her, Cox drove away from the gas station. J.R. remembered she had her cell phone in her back pocket, and as discretely as possible, she dialed numbers in an effort to be rescued. She first dialed 911; not knowing if her call had been received, she then dialed her friend, Maria Wright, and then her ex-husband, Gregory Young. J.R. left the phone on while she continued to plead with Cox to let her go.

Cox eventually pulled the car over and got into the backseat with J.R. and demanded that she remove her clothes. J.R. testified that Cox began to lick her neck and breast, and once J.R. removed her clothes, Cox raped her. Fortunately, as Cox was distracted by another vehicle passing by, J.R. was able to escape from her backseat and run to a BP gas station operated by Willie Harris. Harris let J.R. into his store, found her something to cover up with, and called the police.

J.R. was then taken to the University of Mississippi Medical Center (UMC). While at the hospital, J.R. was interviewed by Martha Pentecost, a UMC social worker, and Patty Welch, a UMC registered nurse. Jackson Police Officer Taafee N. Hughes and Detective Kimberly Brown were also present for the interview. In the interview, J.R. told Pentecost and Welch that she had been kidnapped and forced into her car against her will. She further testified that she was raped, and a rape kit was then prepared to test J.R.'s person. Welch also noted that she found "redness" on J .R.'s labia minor.

At trial, Pentecost testified regarding J.R.'s statements (although the opinion of the Court of Appeals of Mississippi doesn't no reveal the exact nature of Pentecost's testimony). After Cox was convicted of carjacking, kidnapping, and the forcible rape, he appealed, claiming, inter alia, that Pentecost's testimony was inadmissible under Mississippi Rule of Evidence 803(4) because Pentecost was not a diagnostician.

The Court of Appeals of Mississippi disagreed, concluding that Rule 803(4)

states that if the trial court finds the circumstances surrounding the statement indicate substantial trustworthiness, the statement can be admitted regardless as to whom the statement was made. The trial court found that because the statements were made after J.R. had just been brought into the hospital and because they were made in the company of a nurse and a police officer, there was enough trustworthiness to admit the statements. Furthermore, Pentecost's testimony was corroborated by a UMC registered nurse, Welch, and J.R. herself.

The more interesting question to me, which the court did not address, is whether J.R.'s statements were "testimonial" and violative of the Confrontation Clause in the event that she did not testify (the court's opinion does not make clear whether J.R. testified). The fact that a police officer and detective were present for the interview of J.R. make me think that her statements would indeed be "testimonial."

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/12/8034-patrick-william-cox-appellant-v-state-of-mississippi-appellee-so3d-2010-wl-5093619miss2010.html

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