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Editor: Colin Miller
Univ. of South Carolina School of Law

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Monday, August 20, 2012

Call The Doctor: Does Rule 803(4) Apply To Statements Made To The Sexual Assault Response Team?

Like its federal counterpartAlaska 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.

So, what happens when an alleged sexual assault victim makes statements to a person working as part of a quasi-medical, quasi-investigatory body? Are those statements made for purposes of diagnosis or treatment, or are they made for purposes of evidence-collection and prosecution? The answer is probably a bit of both, which is why, as I've noted, such statements have created problems for courts under Rule 803(4). This was certainly the case with the recent opinion of the Supreme Court of Alaska in Davison v. State, 2012 WL 3240111 (Alaska 2012).

In Davison,

Dennis Davison was convicted of sexually abusing his fourteen-year-old daughter, R.D. At trial, the doctor who performed a Sexual Assault Response Team (SART) examination of R.D. testified to statements R.D. had made during the examination.

Unfortunately, the opinion in Davison doesn't do a great job of explaining the specifics of SART, so here they are, from the Alaska Department of Public Safety website:

The Sexual Assault Response Team (SART) is a multi-disciplinary team developed to improve serv- ices to victims of sexual assault. The team is comprised of advocates from the local victim service center, law enforcement officers, and specially trained health care professionals. These team members provide a coordinated, efficient, and supportive response to victims. The benefit of the SART is the ability to provide a full range of comprehensive services to victims who have made the decision to report a sexual assault. This occurs by providing immediate crisis intervention, team interviews, forensic examination, and follow-up as needed. This coordinated response leads to a bond between the victim and the advocate, enables law enforcement to receive a foundation of facts regarding the case, and provides for forensic evidence for prosecution of the sexual offender. 

SART teams are established to:    

A. Meet the immediate needs of the victim with crisis intervention and support services.

B. Provide a joint, effective, sensitive approach to victims of sexual assault.

C. Conduct an investigation of the crime.

D. Document and preserve forensic evidence for prosecuting the perpetrator of the crime

As you can see from the above, SART serves several masters, some which would allow for the application of Rule 803(4) and some which would not. Moving to the specifics of Davison, here is how the SART examination of R.D. was conducted:

At the hospital, Dr. Deborah Flint–Daniel conducted the SART exam. Three other people were present during the exam: Trooper Abercrombie, a nurse, and an advocate from the Bering Sea Women's Group. Dr. Flint–Daniel explained that Trooper Abercrombie had requested the SART exam: “[T]he exam .... has to be requested by this officer here. You guys have already talked about that and she's asked that we go ahead and do this exam today.” The doctor also read R.D. a consent form explaining that the information gathered from the medical exam would be used for evidentiary purposes:

[H]ere, let me read [this consent form] with you. That you authorize [the hospital] to give information to—in this case it would be Alaska State Troopers.... And the information will be used or disclosed for an investigation and prosecution of any crime that may have been committed....

It says you understand that the health care providers are required to report to law enforcement agencies cases in which medical care is sought when injuries have been inflicted upon any person in violation of state law.... I understand that a separate medical examination for evidence of sexual assault ... can be conducted by a health care provider to discover and preserve evidence of assault. If conducted the report of the examination and any evidence obtained will be released to law enforcement authorities. I understand that the exam may include the collection of reference specimens.... Knowing this, I consent or give permission to a medical examination for evidence of sexual assault.

The form expressly described the examination as a forensic exam: “In order to facilitate services it is understood that the agencies involved in the team will be exchanging information about the forensic examination ... and the interview.”

Dr. Flint–Daniel then proceeded to collect a verbal history from R.D. R.D. had a very difficult time answering questions about the sexual assault and responded with silence to many of the doctor's questions. After several unsuccessful attempts to question R.D. about the assault, Trooper Abercrombie offered to relay what Tracy had told her about the incident. After the trooper told the doctor what Tracy had reported, Dr. Flint–Daniel asked R.D., “[I]s that pretty much on target?” R.D. responded, “Yeah.” Dr. Flint–Daniel then proceeded to ask R.D. a series of more detailed yes or no questions about the incident, to which R.D. responded. Later, over Davison's objection at trial, Dr. Flint–Daniel summarized what R.D. had told her: someone came into her room while she was sleeping, touched her breasts and genitals, licked her genitals, and penetrated her vagina with a finger and penis.

After concluding the verbal history portion of the SART exam, Dr. Flint–Daniel performed a physical exam. The physical exam showed that R.D. had two healing abrasions in her genital region. The doctor also obtained swabs from inside her mouth and genital area to test for various sexually transmitted diseases.

In addressing on appeal the question of whether Dr. Flint-Daniel's testimony about R.D.'s statements was admissible under Rule 803(4), the Supreme Court of Alaska noted that two questions have to be answered in the affirmative for the Rule to apply:

"'[F]irst is the declarant's motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis and treatment.'"

The Alaska Supremes then found the testimony was improperly admitted because it could not answer the first question in the affirmative. Instead,

the SART exam was conducted by a doctor, in a hospital, and R.D. was 14 years old. Davison concedes that at 14 years old R.D. was “old enough to understand that information she provided could affect the treatment she would receive at a medical exam.” But many other factors cause us to question whether her statements were made for the purpose of medical diagnosis or treatment: (1) R.D. had already received some prior medical treatment at the clinic in Elim; (2) Trooper Abercrombie arranged the interview, met R.D. and her mother at the airport, and drove them to the hospital; (3) the trooper and a women's advocate were present during the exam; (4) the trooper took an active role in questioning R.D. and prompted the responses that R.D. eventually gave; (5) Dr. Flint–Daniel emphasized the forensic purpose of the exam to R.D.; and (6) Dr. Flint–Daniel did not actually view and follow-up on the results of the lab tests she had ordered. These facts all suggest the exam was primarily forensic rather than medical. On balance, we cannot conclude that R.D.'s statements to Dr. Flint–Daniel regarding the assault were made for the purpose of medical diagnosis or treatment. Consequently, they lack the guaranty of trustworthiness underpinning the medical treatment exception and were not admissible under Evidence Rule 804(4). 

That said, because R.D. actually took the witness stand and testified regarding the acts that led to Davison's conviction, the Supreme Court of Alaska found that the trial court's error was harmless.

(Hat tip to Kevin Higgins for the link)

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/08/like-itsfederal-counterpartalaska-rule-of-evidence-8034provides-an-exception-to-the-rule-against-hearsay-for-statements.html

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