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Univ. of South Carolina School of Law

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Monday, February 3, 2014

Night Nurse: Indiana Court Finds Statements to Nurse by Child Victim Admissible Under Rule 803(4)

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

A statement that:

(A)      is made by a person seeking medical diagnosis or treatment;

(B)      is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(C)      describes medical history; past or present symptoms, pain or sensations; their inception; or their general cause.

Rule 803(4) is largely premised on the "selfish motive" rationale: that a patient is motivated to be honest/accurate when describing symptoms/causes to a doctor because inaccuracy could lead to misdiagnosis/mistreatment. Based upon this rationale, many litigants have attempted to argue that statements by young children should not be admissible under Rule 803(4) because such children do not realize the dangers of such inaccuracy. Most litigants are unsuccessful in this endeavor, as was the case in Fuentes v. State, 2014 WL 298938 (Ind.App. 2014).

In Fuentes, Raul Fuentes was charged with three counts of Class A felony child molesting and four counts of Class C felony child molesting. At trial, a nurse testified concerning statements one of Fuentes's victims -- his nine year-old granddaughter, I.F. -- made to her during her physical examination of the victim.

After he was convicted, Fuentes appealed, claiming, inter alia, that the prosecution failed to establish that I.F. knew the consequences if she lied/misspoke to the nurse. In response, the Court of Appeals of Indiana noted that the nurse provided the following testimony at trial regarding the procedure she followed when examining I.F.:  

Q Do you have a particular kind of process that you go through when you're going to be conducting an examination of a child?

A Yes.  

Q Okay. How do you start your—first of all, introductions? Do you introduce yourself to the child?  

A I do.  

Q How do you introduce yourself to the child?  

A I just shake their hand and tell them that I'm a nurse and I'm a special kind of nurse and that when we get to the room—well first of all I tell them I'm going to look at you from the top of your head all the way to your toes, front and back and I'm, going to look in the middle, everywhere in the middle. I don't do anything that hurts and that the special part about my job is that I don't have to give any shots.  

Q Okay. Did that relieve some kids?  

A Oh a lot of them yes.  

Q So you introduce yourself to the child. And then what's the process that you follow then, process that you follow?  

A Well I explain to the parents exactly what I'm going to do, parent or care giver.... Then I take the child back to the room, show them everything in the room, ask them if they have any questions and then I'll get their vital signs, I listen to their heart and then basically most times, especially the older children I'll just ask them if they know why they came to see me.  

 Q Did you ask [I.F.] why she was there?  

A Yes.    

Q When you asked [I.F.] why she was there what did she tell you?  

A She stated to me, my grandpa touches my cooch and my boobies, a couple of fingers he touches on the inside and outside of my cooch. His hot dog he puts on the outside and the inside of my cooch. He puts his mouth—excuse me—he kisses and does licking and sucking to both of my boobies. He puts his mouth and licks on the outside and the inside of my cooch. He makes me, he made me touch his hotdog

According to the court,

We conclude that [the nurse]'s above quoted testimony established the proper foundation for the admission of I.F.'s Hearsay under Evidence Rule 803(4)....I.F. knew she was going to be examined because of the molestation by Fuentes and understood Robinson's role in conducting the examination. This triggered I.F.'s motivation to provide Robinson with truthful information. The trial court did not abuse its discretion; I.F.'s Hearsay was admissible.

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/02/8034-fuentes-v-stateslip-copy-2014-wl-298938-tableindapp2014.html

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Comments

Aaaannddddd....this nurse is diagnosing &/or treating what? An injury, or a crime? And, "testimonial"????? Interesting case.

Posted by: fred moss | Feb 4, 2014 3:30:51 PM

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