Tuesday, October 25, 2011
Undiagnosed: Court Of Appeals Of Iowa Finds Granddaughters' Statements Inadmissible Under Rule 5.803(4)
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, let's say that four granddaughters tell a forensic interviewer and a child protective worker that their grandfather physically and sexually abused them. Would these statements qualify as statements for purposes of medical diagnosis or treatment? According to the recent opinion of the Court of Appeals of Iowa in State v. Moore, 2011 WL 4950180 (Iowa App. 2011), the answer is "no," at least based upon the facts before it.
In Moore, the facts were as stated above, with Jerry Moore being convicted of two counts of second-degree sexual abuse, one count of indecent contact with a child, and four counts of child endangerment. Before Jerry Moore was charged, David Moore, Jerry's grandson, and his wife Kandice,
invited [Jerry]'s granddaughters to their house the following week. The girls spent the night and told David and Kandice they were being sexually and physically abused by their grandfather. Kandice called the Iowa Department of Human Services (Department) the next morning, on February 14, and reported the abuse. A child protective worker with the Department and a police officer arrived at David and Kandice's house later that afternoon. All of the children, except A.M., reported that Moore had touched them inappropriately and hit them. They also said Moore showed them pictures of naked women and people having sex on the computer and in magazines.
Each of the girls was interviewed by a forensic interviewer at a child advocacy center. [At trial,] [o]ver defense counsel's hearsay objections, the interviewer was allowed to testify about statements the children made to her during the interviews, as were the child protective worker and police officer that interviewed the children at the beginning of the case.
The district court allowed for the admission of the granddaughters statements to the child protective worker, the forensic interviewer, and others as prior consistent statements under Iowa Rule of Evidence 5.801(d)(1)(B). In response to Jerry Moore's appeal after he was convicted, however, the State acknowledged that these statements were improperly admitted under this Rule.
The State claimed, however, that these statements alternately could have been admitted as statements made for purposes of medical treatment or diagnosis under Iowa Rule of Evidence 5.803(4). The Court of Appeals of Iowa quickly disagreed, curtly concluding, "We question this premise, especially with respect to the forensic interviewer and the child protective worker, as there was minimal evidence showing the children's statements to these witnesses satisfied the two-part test for admissibility detailed in State v. Tracy, 482 N.W.d 675, 681 (Iowa 1992).
In Tracy, the Supreme Court of Iowa had held that statements are only admissible under Iowa Rule of Evidence 5.803(4) if two conditions are satisfied:
"first the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis."