*1
REMAND)
(ON
PEOPLE v CONN
7, 1989,
July
Lansing.
Docket No.
118777. Submitted
Decided
16,
January
appeal applied for.
1990. Leave to
Bobby
first-degree
S. Conn was convicted of
criminal sexual
and,
plea
guilty,
felony
on
conduct
of
of
a second
offender,
Court,
Lippitt,
Circuit
habitual
Oakland
Norman L.
J.
appealed, alleging
Defendant
inter
that the court
alia
erred
allowing
attending
testify
physician
statements
seven-year-old
affirmed,
Appeals
of
victim. The Court
(1988).
App
sought
appeal
171 Mich
leave to
Defendant
granting
appeal,
of
lieu
leave to
light
Mich 914
for reconsideration in
of
remanded
(1989).
People v
to the are not as an exception hearsay rule. Reversed. P.J., Sawyer, He would dissented. hold statements identifying perpetrator child sexual abuse victim are admis- physician during sible where the are made any part course of a or treatment not a of examination police investigation alleged perpetrator sexual abuse and the ongoing is a member of victim’s household or otherwise had unsupervised affirm. access to the victim. He would Hearsay Exception — — — Evidence Medical Treatment Rules Evidence. examining patient Statements made an as to origin symptoms patient’s as are not admissible (MRE 803[4]). rule Attorney General, Frank J. Kelley, Louis J. References 2d, 685, 683, Am Jur Evidence §§ Admissibility physician’s testimony patient’s as to statements or declarations, gestae, during other than res medical examination. 37 ALR3d 778. Opinion op the Court Patterson, General, L. Brooks Caruso, Solicitor Prosecuting Attorney, Chief, Williams, C. Robert Appellate Fischer, Division, Assistant and Paul people. Prosecuting Attorney, for the *2 Ziemba, for defendant. Carl
ON REMAND Kelly Sawyer, P.J., J. Before: and Michael JJ. Doctoroff, Following jury trial, defendant a
Doctoroff, conduct of criminal sexual was convicted 28.788(2). degree, He 750.520b; MSA first MCL pled guilty of- an habitual thereafter fender, offense, 28.1082. 769.10; MSA second MCL eighty twenty-five to He was sentenced to serve prison. appealed years and we af- Defendant People 55; Conn, Mich 429 v 171 firmed. (1988). applied thereafter Defendant NW2d appeal which, in Court leave to granting leave, Mich 914 re- lieu of Court for reconsidera- manded the matter to this light People LaLone, 103; 432 Mich tion (1989). NW2d original opinion alia, held, In inter concerning attending physician
testimony by an to him under examination of the victim were 803(4). must recon- MRE sider It is this issue which we light LaLone. that statements In the Court concluded the course made to psychological allegations following examination MRE under abuse were not admissible sexual 803(4). that the drafters The Court’s rationale was the victim’s the court rule did not intend Opinion op the Court naming of her assailant should be considered a description general character of the cause or injury. p external source of an 111. In reversing LaLone, the Court stated:
The outcome of a child sexual abuse case is often decided and a credibility contest. The narrow 803(4) specific wording represents of MRE effort to balance the desire for additional evidence protect damag- with the need to the accused from ing hearsay. If indeed that balance needs shifted to allow testimony describing nonmedical specific statements of tigations fault made after inves- begun, have then it can done best be amendment of the current rule. [432 117.] distinguishable LaLone is from this case on two First, bases. statement LaLone was made to physician, rather than to a a factor according suggested which, *3 However, statement complainant he less reliable. since seven-year-old child, this case is a psychologist/physician purposes distinction, reliability, is irrelevant. Second, the statement was made brought after the accusations had been and the investigation begun, and the Court reasoned complainant would offer consistent statements to a psychologist. Complainant in LaLone was the de- fourteen-year-old stepdaughter. fendant’s In La- timing Lone, was, thus, a factor in the Court’s dispositive. However, it Further, decision. was not reasoning complain- we find that the Court’s psychol- ant would offer consistent statements to a ogist appli- after the accusations were made is less complainant is, case, cable when the only as this years seven old. though
We conclude even this case deals with a and with statements made before Mich by Sawyer, P.J. compels made, our accusations had been LaLone conclusion that defendant’s conviction must deep regret note child reversed. We will have to endure a our this
replay trial. of defendant’s approaches Indeed, that to which kind abuse unwilling participants. However, we are bound Court’s decision. Reversed. Kelly, J.,
Michael
concurred.
(dissenting).
Sawyer,
dissent.
respectfully
majority,
Unlike the
I believe that
the distinc-
People LaLone,
tions between this case and
103;
the sexual abuse resulting disclosed, was in the authorities’ *4 contacted. respect distinction,
With to the first that LaLone psychologist physician, involved a the fact that rather than a psychologist can-
LaLone involved by Sawyee, Rather, not be dismissed out of hand.
decision indicates much very the Court was with the concerned fact the victim’s state- ments had been made to a psychologist of a psychological course evaluation or treatment. Indeed, one of primary bases for the Court’s was its made to a decision belief are less reliable than those psychologist inherently made to a physician: A treats dis- mental and emotional orders rather Lying than ones. to one’s provider health care symptoms about their and
general pa- causes would be detrimental tient, is, part, and it for this reason that we permit ments. the introduction of state- such It say is fair therefore while medi- patients descriptions cal may fabricate their general complaints and the causes character complaints, of these think it likely would less they psychological patients. that addition, will do so than although In tests, psychological there are physical complaints fabrications of would seem through empirical be far easier to discover tests might than fabrications which be heard Indeed, examining psychologist. statements which untrue, are knows examining which the untrue, may be nevertheless serve as diagnosis Thus, basis accurate and treatment. in the statements made course the treatment of psychological always disorders as relia- in the of the ble as those made course treatment of physical disorders. [432 109-110.] Moreover, places other least two at opinion, its found the note need to that LaLone involved a psychologist. Specifically, the Court addressed its concern of broadening the 803(4) nature contained in MRE in the context of psychological treat "particularly Second, in distinguishing . . .” ment . Id. *5 by Sawyer, P.J. Dissent Renville, 779 F2d in v the decision United States (CA 1985), again specifically noted 8, the Court in were made to a this case "the statements that psychologist than to a and this rather suggests in this that the statement be less reliable than a statement made case physician.” LaLone, 113-114. distinguishing the is that The second feature accusa- were made after investigation brought be- had tions gun, been in the case at bar the statements while investigation. again I initiated the believe what that played these factors a role the Court’s decision LaLone.
Specifically, that the LaLone Court noted meeting complainant’s "oc- with police authorities that her she told curred after investigation stepfather had her and the abused initi- into the truth of those accusations had been that ated.” Id. at 115. The Court further noted meeting and the that between of reliabil- "did not have the same measure victim therapy psychological ity normal as would even a already complainant had session, since that a case aware and she was the accusations against being prepared.” Id. the defendant was that, Further, if the defendant the Court noted her that the victim had fabricated was correct complainant surely story, had offered "then once police, story consistent she would offer Finally, in its Id. statements conclusion, psychologist.” opinion plurality *6 made victim nor a to a did the bright Court draw a line between state- investigation begun ments made before an those statements made afterwards. has and
Indeed, I ac- knowledge expressed many that of the concerns equally apply the Court in LaLone would to state- ments to a made which constitute the child’s accusation of well first abuse as as to po- made to statements lice a the investigation. However, I am mindful also purpose the tois allow the of introduction statements which a have sufficient degree reliability. supra of at In the surrounding bar, case at the circumstances the attending physician victim’s statements to the support finding that those were statements more present reliable Specifically, than circumstances LaLone. bar, in the case at the victim’s state- physician appear ments the first time she revealed fact that she was abused despite urging and were made her mother’s injuries bicycle she ascribe her a male a accident or to baby-sitter. Furthermore, the victim’s accu- partially physically sations were least confirmed by the fact that she suffered from labial irritation. See at 112. cognizant
While I am of the fact that the Su- preme place did Court not as much reliance on the supra, Renville, decision in or the need of an point psychologi also reinforces first distinction medical versus testimony. cal by Sawyer, attending physician the source of to ascertain patient protect from future abuse in order opinion in initial did in our as this Court abuse distinguishing fea- matter, I this believe justify and LaLone the instant case tures between applicable to the that LaLone is a conclusion again Accordingly, hold that I would case at bar. sexual of child identifying where, her abuser are abuse (1) physi- here, are made the statements as cian, (2) course of a part any not a examination or treatment investigation (3) alleged abuse, is the abuser or otherwise household a member of victim’s unsupervised ongoing, access to the victim.2 had affirm. would any course, other also have to consider a trial court would Of statements, reliability might such as a
factors which suggestion affect physi particular statement to the child to make cian. notes if testimony concerning statements of nonmedical investigations specific had fault "made after begun” admissible, it can be best then should evidentiary rules.1 addressed amendment testimony on this to nonmedical the court referred The fact Conn by Sawyer, opinion Thus, Id. at am of the the fact the statements made the victim LaLone lodged occurred after she her had accusations with important the authorities was an consideration Supreme Court’s decision. I am not unmindful that the Court did limit its decision to statements