Lead Opinion
delivered the Opinion of the Court.
The People appeal the court of appeals reversal of Richard John Chard’s (the defendant) conviction on five criminal counts of aggravated incest. The court of appeals held that reversal was warranted because of the trial court’s failure to compel the seven-year-old victim to submit to involuntary psychological and physical examinations. We reverse.
I.
From June 20, 1986, until September 1, 1986, defendant’s daughter, R.S., visited with her natural father, defendant Chard, in Steamboat Springs, Colorado. R.S. was six years old at this time and lived in California with her mother and her stepfather. Shortly after her return to California, R.S. complained to her mother that her “tutu” hurt. R.S.’s mother examined R.S.’s vaginal area and found it to be “gapingly open.” She also noted that the area was “real bright red” or “bloody.” R.S.’s mother was concerned about R.S.’s condition, but decided not to take her to a doctor at that time.
In February 1987, after speaking with her attorney, R.S.’s mother took R.S. to a California pediatrician, Dr. Valerie Young. After examining R.S. thoroughly, Dr. Young noted that she had an abnormally deep vaginal area, a large hymenal opening, and increased vascularity and scarring in the vaginal area. In addition, R.S.’s rectum was enlarged and unusually loose. Dr. Young concluded that R.S. had been subjected to penile penetration of the vagina and anus over an extended period of time. Dr. Young referred R.S. to a California therapist, Suzanne Long, for counseling. Long interviewed R.S. twice and subsequently filed a child abuse report.
Thereafter, the defendant was charged With five counts of aggravated incest. On June 8, 1987, the defendant filed a motion to compel R.S. to undergo a second physical and psychological examination. The trial court held a hearing on thе motion on July 21, 1987, which consisted of testimony by the defendant and a local physician, Dr. David Wilkinson.
Dr. Wilkinson acknowledged that Dr. Young’s examination of R.S. was thorough, but he stated that there were two possible benefits to be derived from a second physical examination. First, a second examination would reveal if the sexual abuse was continuing. Second, some of the findings and measurements in Dr. Young’s report were subjective and might differ in a subsequent examination. Dr. Wilkinson conceded, however, that a physical examination could be traumatic or painful to R.S. and that some of her injuries may have healed since Dr. Young’s examination.
No expert testimony was presented regarding the requested psychological examination. The defendant testified that R.S. may have accused him of sexual abuse because she had watched material of a “bizarre and deviant sexual nature” on television. The defendant also stated that R.S. had “mischaracterized” certain things that had happened to her. On cross-examination, the defendant testified that R.S. was as “sharp as a tack” and knew the difference between truth and falsity.
From the evidence presented, the trial court concluded that any benefits that could be obtained from a second physical examination were too speculative. The court alsо denied the motion for a psychological examination on the basis that cross-examination of R.S. would establish sufficiently whether she was distorting the facts or whether she had been subjected to undue influence.
At trial, R.S. testified that the defendant had stuck his penis into her “tutu” and “bottom” numerous times while she was visiting him in the summer of 1986. Dr. Young testified that R.S. had been subjected to chronic penetration of the vagina with some object and to recurrent, long-term penile penetration of the rectum. Long testified that during her interviews with R.S., R.S. identified the defendant as the person that had sexually abused her. In
II.
We first address the defendant’s contеntion that the trial court abused its discretion by failing to order R.S. to undergo a psychological examination. The defendant claims that a second examination would have little or no traumatic effect on R.S. and that it would determine whether R.S. was competent to testify.
A.
A criminal defendant has a constitutional right to present evidence on his behalf, People v. Pronovost,
In deciding whether to grant a defendant’s motion for the involuntary psychological examination of a child sexual-abuse victim, the court must weigh the defendant’s right to a fair trial against the invasion of the victim's privacy interests. Moor v. State,
Many jurisdictions have sought to balance a defendant’s interest in a fair trial against the victim’s privacy interests by requiring the defendant to show a “compelling reason or need” before granting a motion for an involuntary psychological examination. See, e.g., Moor v. State,
Colorado has also adopted the “compelling reason or need” test with regard to involuntary psycholоgical examinations. In People v. Estorga,
B.
The defendant argues that he demonstrated a “compelling reason” for ordering a second psychological examination of R.S. The defendant’s attempt to provide a “compelling reason” in this case consisted of an affidavit and testimony that R.S. had mischaracterized occurrences in her past; that she had been exposed to bizarre, deviant behavior on television which could have caused her to fabricate some or all of thе accusations; and that she had been unduly influenced by her mother and other adults. The King court rejected these types of statements as being “conclusory in nature” and “devoid of specific factual recitation.” King,
III.
We next address the defendant’s argument that he demonstrated a compelling reason to order a second physical examination of R.S. and that the trial
A.
We first consider what the appropriate standard is for ordering an involuntary physical examination.
Although many of the policy considerations applicable to a psychological examination also apply to a physical exаmination, the purpose of each is not necessarily the same. Involuntary psychological examinations are usually ordered to determine the competency of the child victim to testify. See Lucero,
Under the common law, a trial court could not order an involuntary physical examination of a child victim because “discovery in criminal cases was unknown to the common law.” See Sergent v. People,
There is a split of authority with regard to a trial court’s power to order an involuntary physical examination of a child victim in the absence of statutory authority. Some jurisdictions, most notably North Carolina and Texas, have held that in the absence of specific statutory authority, a trial court may not order an unwilling witness to submit to a physical examination. See State v. Joyce,
We hold that a trial justice has discretionary power to require a witness in a criminal trial to submit to an independent physical examination only under the most compelling of circumstances. In situations in which the defendant has shown substantial need and justification and no violation of substantial rights will result, the trial justice has discretionary power to order the complainant to undergo a physical examination. The practice of granting physical examinations of criminal witnesses must be approached with utmost judicial restraint and respect for an individual’s dignity. In determining whether to order an independent medical examination, the trial justice should consider (1) the complainant’s age, (2) the remoteness in time of the alleged criminаl incident to the proposed examination, (3) the degree of intrusiveness and humiliation associated with the procedure, (4) the potentially debilitating physical effects of such an examination, and (5) any other relevant considerations.
Id. at 1062. In a similar case, the Alabama Court of Criminal Appeals held that a defendant must show an “extreme need” before the trial court will order an involuntary physical examination of a child victim. Lanton v. State,
It may well be doubted, in cases of rape and cognate offenses, whether the court has the power to make an order compelling the inspection of the private person of a prosecutrix in the event of her refusal to submit to such examination. If such right exists at all, we should hold it to be a matter of judicial discretion with the trial court, to be exercised only in cases of extreme necessity, and not a subject of rеview on appeal to this court.
Id. at 873-74 (quoting McGuff v. State,
The highly intrusive nature of a physical examination raises the same concerns about emotional trauma, embarrassment, and intimidation to the child victim that are present with regard to a psychological examination. These concerns must be balanced against a defendant’s right to
B.
The defendant contends that a second physical examination is necessary for several reasons. It would show the presence or absence of ongoing sexual contact and whether the contact was self-induced or induced by another; it would allow for additional examination techniques not previously utilized; and it would provide expert opinion as to the accuracy of the results obtained by Dr. Young. The defendant argues that these allegations are sufficient to establish a compelling reason for ordering the physical examination.
The trial court denied the defendant’s request for a second physical examination because the “benefits to be obtained from a further examination were too speculative in nature.” The defendant’s own еxpert witness, Dr. Wilkinson, testified that a physical examination is “frightening to children, [because] they perceive it as physically painful,, and to some extent it can be.” Dr. Wilkinson also testified that “the one potential benefit” to be obtained from a second examination “would be to determine if there were ongoing problems.” The trial court weighed the competing interests and concluded that the trauma and embarrassment to R.S. outweighed any benefits the defendant might obtain from the examination.
In People v. Nokes,
The exercise of discretion to refuse to compel a child victim to submit to a physical examination when the examination could at best produce results equivocal on a defendant’s “innocence” should not be disturbed unless the exercise of discretiоn has been so arbitrary and capricious that no reasonable court could have made such a finding.
Id., at 481,
The judgment of the court of appeals is reversed.
Notes
. The record indicates that the trial court recognized that the defendant’s right to discovery must be weighed against the victim's privacy interest. In weighing these competing interests, the court considered Dr. Wilkinson's testimony as to the nature of the examination and the possible benefits to be obtained, and concluded that the benefits were "not so pressing or persuasive” as to require the court to grant the motion. The court, in its denial of defendant’s motion, found:
[T]he benefits that could possibly be derived from another physical examination are one, speculative, and two, simply this Court does not believe that they would in fact show anything beneficial [to Chard] thаt could conceivably be presented at the time of the trial in this case.
Further, the Court is satisfied that upon cross-examination, properly conducted appropriate inquiry into this area could be made. And if, indeed, some third party has been perpetrating assaults on this child, this child presumably is articulate enough to let everyone know that.
Concurrence Opinion
concurring in part and dissenting in part.
Richard Chard was found guilty by a jury of five counts of aggravated incest. The trial court sentenсed Chard to fourteen years imprisonment. I agree with the standard created by the majority to determine whether a minor victim of a sexual assault can be required to submit to a physical examination and therefore concur in part. However, I dissent in part because the trial court did not apply the standard which this court has now created. I would remand for a new hearing to determine whether the denial of the defendant’s motion fоr a medical examination under the new standard should have been granted. If the motion is granted, a new trial is required.
R.S., the defendant’s daughter, lived with her mother and stepfather in California. The defendant father lived in Steamboat Springs, and had summer visitation privileges with R.S. in 1986. Not long after R.S. returned to California, she complained of pain in her “tutu” (vagina). Her mother found evidence of sexual abuse but did not take R.S. to a doctor for more than six months. When a medical examination was made, it was discovered that both the vagina and anal orifices were enlarged. This medical examination and a subsequent psychological examination resulted in the filing of charges against the defendant.
Prior to trial, the defendant filed a motion to require R.S. to undergo a second physical examination. The defendant denied that he had assaulted his daughter and contended that such an examination was necessary to-prepare his defense because the only examination of R.S. was conducted a full six months after the incident allegedly occurred. The defendant contended that the sexual assaults were committed by R.S.’s stepfather. A second physical examination may have produced evidence of whether R.S. was the victim of continuing sexual abuse, and would have been relevant to the question of whether the defendant or the stepfather had committed the abuse.
After hearing the testimony of an expert witness, the trial court denied the defendant’s motion, concluding that the benefits to be derived from the physical examination of R.S. were too speculative. The court did not, however, as the majority states, weigh the competing interests and conclude that the trauma and embarrassment to R.S. would outweigh any benefits the defendant might obtain from the examination.
The majority sets forth a new standard for determining whether a trial court should order an involuntary physical examination of a minor victim of a sexual assault at the request of the accused. The standard announced by the majority was not applied by the trial court. The court of appeals concluded that the denial of the defendant’s motion for a physical examination required reversal and a new trial. In my view, the nеw standard requires that we remand this case to the trial court for a new hearing on the defendant’s motion to have R.S. submit to a physical examination. We cannot speculate on how the trial court would have ruled if it had applied the newly created standard or test. Bond v. District Court,
I would therefore direct the court of appeals to remand the case to the trial court with directions to allow the defendant to present evidence demonstrating the compelling need for a physical examination of R.S. If the trial court concludes, applying the new standard, that the defendant is not entitled to have R.S. submit to a physical examination, the judgment and sentence should be affirmed. However, if the trial
Accordingly, I concur in part and dissent in part.