*1
STATE OF MONTANA,
Respondent,
Plaintiff
v.
KATHRYN HARRIS,
Appellant.
Defendant
No. 89-226.
Submitted on briefs December
1990.
As corrected Feb.
1991.
Decided Jan.
1991.
Gary Wilcox, Billings, appellant. E. for defendant and Racicot, Gen., McCarter, Atty. Dorothy Atty. Gen., Marc Ass’t. Helena, Donaldson, intern, Carol A. legal Gerry Higgins, Sp. M. County
Deputy Atty., County, for Ryegate, plaintiff Musselshell for and respondent. of Opinion
JUSTICE HUNT delivered the the Court. Harris, A defendant, Kathryn guilty found two counts of of felony appeals. sexual assault. We and remand Defendant reverse for a new trial.
We frame issues as follows: improperly
1. on the Did the State’s witness comment credibility alleged an who testified at trial? of victim expert witness allowing the State’s Court err
2. Did the District alleged crimes as the identify defendant alleged victims to her made testifying as therapy? during the course of to have jury’s request granting err in Did the District Court
3. the case had been read to it after an victim jury? submitted to the a full-time employed as defendant was
During the fall of Doe,” and a “Janey to as three-yеar-old girl, referred babysitter for a “Robby Beginning about Roe.” boy, referred to five-year-old that her began complaining year, Janey of that mid-September 18, 1987, complained she of stomach hurt. On November bottom stairs, cried and moaned evening, she fell on problems. Later that mother, Doe, wondering what sort Mrs. Janey’s hurt. vagina that her a thick Janey and discovered examined vagina, hurt her of fall could wiped the area Mrs. Doe vaginal area. When glob mucous in the Mrs. Doe pain. washcloth, Janey cried and screamed with a warm with vagina was streaked Janey’s lip then noticed right Janey’s lower noticed a bruise on She also blood-like blisters. vagina. pediatrician her Janey took following day, Mrs. Doe abuse, trained sexual who was pediatrician,
examination. along with abrasions Janey’s vagina, outside of discovered a bruise as non-accidental injuries vagina. She labeled on the side of the abuse. with sexual and consistent Sandi sessions with 25, 1987, Janey began therapy
On November During in child sexual abuse. specializing Burns, psychotherapist put had sessions, Bums that defendant Janey told the course vagina her vagina and hit finger in her vagina, placed a a stick in her addition, Burns that Janey told In or a stick. with her hands vagina. in her Cates, penis his husband, stuck Eric Harris defendant’s sexually abused Roe had also been Robby Janey indicated February Subsequently, and her husband. defendant *4 of sexual to Bums stories Robby related Robby. Burns examined her husband. by defendant and abuse of two counts charged with 26, 1988, was February defendant On in violation of children the minor against felony sexual assault time at the same husband, Cates, charged was 45-5-502, Her MCA. § Janey against one sexual without consent with count of intercourse alternative, assault, Doe, or, felony one count sexual of against Robby assault Roe. sexual granted motion for separate District Court defendants’ July, 1988,
trials. Cates’ trial was held in in the Fourteenth Judicial Court, County, county District Musselshell in which the offenses jury guilty A found of one sexual occurred. Cates count of intercourse without consent and one of sexual On this appeal, count assault. conviction, Court overturned the sexual intercourse without consent holding that the evidence insufficient to sustain the conviction. (1990). Cates, v. 241 Mont. P.2d State trial, Due publicity engendered by to the the Cates defendant granted change County Harris was a venue from Musselshell County. trial, Gallatin Prior to defendant filed motion in limine seeking to exclude by Janey any statements made State sought witness. Defendant also to prohibit Burns, Sandi therapist, testifying children’s from that the sexually children were they truthful, assaulted and that were credible consistent. The motions were denied.
Trial on Janey commenced testify, November 1988. did not having incompetent by been found Court prior District however, Robby, testify, Cates trial. psychotherapist did аs did the the Bums. 16, 1988,
On November guilty found defendant two counts of felony sexual Defendant years assault. was sentenced to 14 imprisonment count, each years suspended, with seven both concurrently. appeal sentences to run This followed.
I. Did the State’s improperly witness comment on the credibility alleged of an victim testified who at trial? trial, Bums,
At psychotherapist Sandi who examined both Janey Robby, Robby little, honest, testified open was “a country boy pretty trustworthy very [H]e’s [He] .... child .... honest.” argues Defendant im- constituted an proper Robby’s credibility. comment on credibility question of an victim lies exclu sively province jury. Expert testimony within the regarding credibility jury’s stamp improperly placing invades the function Therefore, scientific legitimacy allegations. on the victim’s *5 410 not an witness to comment on credi
generally expert will allow Brodniak, 212, 222, v. 221 Mont. 718 bility alleged of an victim. State (1986). 322, P.2d 329 exception to this rule. In cases involv
We have carved out one child, expert tеstimony will allow on ing abuse of a minor we sexual 194, Geyman, credibility alleged victim. State v. 224 Mont. of the (1986). however, 200, 475, applies, only exception 729 479 This P.2d E., 269, trial, v. testifies at State J. C. 235 Mont. when the victim (1988), question. into credibility brought P.2d and 767 312-13 183, 191, 47St.Rep. Hall, 161,] [244 797 P.2d See State v. Mont. (Mont.1990). case, trial, although Robby testified at his present In the defendant. Defendant did not deni credibility by was attacked cross-examine grate credibility opening an statement or Robb/s The time she touched on the issue him when he took the stand. during the cross examination of mother credibility was Robb/s State, if Robby asked had at first denied abuse. when she by however, opened questioning bringing had the door to this line of Robby’s credibility not called up the matter on direct. Because defendant, committed question by into the District Court reversible directly his allowing psychotherapist to comment error trustworthiness.
II. allowing expert Court err the State’s Did District identify alleged ofthe crimes witness to defendant as madе to her the victims by testifying as therapy? during the course of E., 311-12, 267-68, at Mont. at 767 P.2d
As we noted J. C. evi involving young troubling sexual abuse of children raise cases young an of abuse is a child dentiary alleged When victim questions. who, setting, may be to relate information in a courtroom unable offense, may lost. probative evidence be Out-of- about the by the to others therefore become some court statements made statements, however, These of the valuable evidence available. most in court. hearsay, normally are inadmissible constitute following a fine line between are thus forced to walk courts might excluding what rules of evidence the traditional crime. The dilemma is probative, most material evidence when, case, in this Sixth especially acute criminal defendant’s implicated right unavailability Amendment confrontation is of a child declarant. posing problems, danger
In addition to confrontation another allowing hearsay statements, they especially involved when through expert admitted witness such as a counselor psychol- ogist, surrogate expert that the becomes a witness for the child. recognize regarding While the sometimes puzzling seemingly contradictory behavior victims of child issues, sexual assault aid the to determine ultimate such actually occurred, *6 as whether the crime must careful to allow the witness to become a conduit for otherwise inadmissible testimony. E., 269-70, 313,
In J. C.
235 Mont. at
P.2d
767
at
we held that the
perpetrator
subject
identification of the
of a crime is
proper
not a
702,
expert testimony
M.R.Evid.,
under Rule
expert
which allows
testimony if it
trier
evidence,”
will “assist the
offact to understand the
704, M.R.Evid.,
or
Rule
opinion
allows an
to render an
on an ultimate
opinion
issue. We noted that an
anon
ultimate issue
may
only if
jury.
be rendered
it assists the
Whether
child was the
question
may
victim sexual abuse is a
by expert
be clarified
testimony. “However, whether
the evidence adduced
the State
only
[defendant]
establishes
as the
requires
the common
logic
capacity
lay
E.,
that is indeed well within the
jury.”
of a
C.
J.
Mont.
at
“The are not hearsay though excluded even declarant is available as witness: “(4) Statements for purposes diagnosis medical or treatment. Statements for purposes diagnosis made of medical or treatment and describing history, past present medical or symptoms, pain, or or sensations, inception general or the character the cause or reasonably pertinent diagnosis external source thereof insofar as to or treatment.” 803(4),
Rule M.R.Evid. E., rejected We considered and in C. contention J. 235 Mont. аt stating, at 767 P.2d ‘We decline to extend the medical ...” The beyond medical doctors diagnosis exception treatment attempts distinguish to ruling reconsider our urges State us to grounds E. that the counselor present case from J. C. necessary author- was unlicensed and therefore without that case render, while the counselor in this case ity diagnosis to medical points out that the Commission Com- further licensed. State to exception apply was not intended indicate that the ments to medical doctors. statements made state:
The Commission Comments any person statements made about exception “The allows exception.” subject, long purpose within the any pertinent so added.) (Emphasis Annot., 803(4), M.R.Evid., 3 MCA Commission Comments Rule (1986). Title at 352 cases the State that in some state- agree
While we with physicians may be admissible persons made other than ments exception, again and treatment we once diagnosis under the medical beyond medical in cases exception doctors decline to extend the children because we cannot be assured that involving young abuse of exception.” purpose such statements “within diagnosis and treat purposes made for of medical Statements they purpose comewithin the satisfy two-part test before ment must First, the declarant’s motive exception rule. of this seeking medical must be consistent with making statement *7 reasonably Second, type of a relied the statement must be treatment. diagnosis and treatment decisions. by making a when physician E., 270, at at 767 P.2d 313. J. C. Mont. by made a child victim hearsay argues
The State under the should be admitted of sexual assault her counselor on the the counselor relies exception treatment because medical determining appropriate the most identity of the While we do not doubt that for the victim. course of treatment cоrrect, requirement exception, it first ignores assertion telling the need for is, patient understands that the victim or truth to his or her doctor. hearsay exception medical treatment reliability of the
The declarant who seeks prong test. The by rule assured first telling the truth. He motive in possesses treatment selfish medical may he the treatment receives effectiveness of knows that “the depend largely accuracy upon provides.” of the information he C. (E. McCormick, Cleary McCormick on Evidence 292 at 839 3d Ed. § 1984). E.,
In J. C.
ments in question may come into evidence under the
excep
residual
hearsay rule,
tion to the
804(b)(5),
Rule
M.R.Evid.,
provides
that statements not specifically
by any
covered
of the enumerated
exceptions may be
they possess
admissible if
“comparable circum
guarantees
stantial
of trustworthiness.”
E.,
In J. C.
273,
“1. The victim witness, must be unavailable as a through whether incompetency, like illness or some other (e.g., reason trauma induced by the courtroom setting).
“2. proffered fact, must be evidence of a material must probative be more than аny other through evidence available reasonable means.
“3. The party intending to hearsay testimony offer the give must advance notice of that intention.” E.,
J. C.
The second prerequisite, however, Although is not satisfied. statements attested to Burns identified defendant as the perpetrator of the sexual against Janey assaults and were therefore material, they were not the probative most evidence on the matter. Robby, a victim of the eyewitness abuse and an assault against Janey, Janey testified that he defendant touch saw “on the *8 414 ” able link defendant to the sexual
‘bagina.’ Robby Because to through of hear- against Janey, the identification defendant assault Robby’s only cumulative and served to bolster say statements was testimony. hearsay testimony Robby’s
The statements regarding 804(b)(5), M.R.Evid., because Burns are inadmissible under Rule However, Robby’shearsay statements Robby was available trial. 803(24), could under some circumstances be admitted under Rule M.R.Evid., rule used the exception hearsay the residual when testify, long possess as statements declarant available to the guarantees of trustworthiness.” “circumstantial 804(b)(5), apply Rule preliminary protections The M.R.Evid., 803(24), proffered hear- apply also Rule M.R.Evid. fact; hearsay the more say must be evidence of a material must be any through reasonable probative than other evidence available means; testimony must intending hearsay to offer the party the give of advance notice that intention. case, Robby present
In the hold that the statements made we Robby during counseling Burns sessions are inadmissible. Because as the identify identify was available to and did indeed defendant crime, Burns hearsay the which As we probative testified were nоt the most evidence on matter. cumulative, above, merely noted Burns’ on this issue was testimony. serving Robby’s to bolster cases, discuss, using guidance in now the factors For future will E., at P.2d the conditions set forth J. C. Mont. at by therapist is an hearsay testimony who under under the treating victims of child sexual abuse be admitted 804(b)(5), M.R.Evid., exception used exceptions residual of Rule M.R.Evid., 803(24), testify, and Rule when the declarant does not emphasize testify. used when the declarant does We exception analysis only preliminary if the the district need reach courts above, As we stated protections of both rules have been satisfied. 804(b)(5), M.R.Evid., are, in the case of Rule protections those witness, hearsay is proffered as a child declarant is unavailable fact, and advance notice probative the most evidence of material Rule in the case of given testimony; to use the has been intent 803(24), M.R.Evid., probative the most proffered given notiсe has been and advance evidence a material fact testimony. use intent to concerning the attributes of the declar factors *9 E., 274, 315,
ant
in
as enumerated
J. C.
“b. the between relationship Whether the witness and the child might impact have an on the of the hearsay trustworthiness statement.
“c. the might Whether witness have a motive fabricate or distort the child’s statement.
“d. The circumstances under which the heard witness the child’s statement, including the in timing statement relation to the availability incident at issue and the of in person another whom the child could confide.” E.,
J. C. at 235 Mont. at 767 P.2d 315.
A therapist not a does see child for treatment of the effects of sexual abuse unless there has been sexually a claim the child has been therapist arguably predisposed abused. therefore to confirm what he or she has been the told. We conclude that nature of the relationship a therapist between and a child has a negative client impact hearsay on the trustworthiness of statement. We further that, general, conclude therapist the circumstances in which a hears a child’s statement sexual not such about abuse are that a hearsay therapist possess guar- statement will circumstantial antees of trustworthiness. E.,
Among C. at the factors listed in J. 235 Mont. 676 P.2d 315, concerning itself,” at “the statement is whether the statement spontaneously. therapist volunteered Statements to a are not spontaneously, made but made in response questioning, E., whether direct or indirect. Another factor listed in J. C. 235 Mont. 315-16, at suggestiveness prior at P.2d is “the of statements story .” In order assault witness ... to elicit of sexual from a child, a therapist leading questions. often resort to Inherent this type suggestive questioning danger planting of is the of idea of sexual in the abuse mind of the child. factors,
In analyzing these we conclude that an extraor dinary hearsay testimony by concerning therapist case will possess of suffi- identity nature the abuse to be guarantees admissible cient circumstantial trustworthiness a child hearsay We hold that statements of victim into evidence. testify will, general, not be sexual abuse does not at trial who 804(b)(5),M.R.Evid., ther- through Rule child’s admissible -under of a victim of sexual apist. Nor will the child Rule testify generally at trial be admissible under abuse who does 803(24), M.R.Evid., therapist. through child’s sum, im- the assaults
In statements about were into into in this case. Their admission properly admitted evidence ruling emphasize that this evidence constituted reversible error. We as Sandi Bums from testi- prevent does not witness such laid, after a hаs as to the characteristics fying, proper foundation been sexually have abused or as to whether children who been particular It does displays those characteristics. also *10 prevent testifying from under another such an gestae, depending utterances or res exception such excited upon the circumstances.
III. granting jury’s request the to have Did the District Court err testimony to it the case had been the of an victim read after to jury? submitted the deliberations, let it
During jury the District Court to the asked Robby’s to the court testimony. jury’s request The written review stated, [Robby’s]testimony on the part, ‘We would like to review testimony to [Robby’s] of ... witness stand. We feel that we need all testimony!” with compare other informed counsel for both sides and
The District Court summoned court request. to the request. objected them of the Defendant into court- objection. jury then escorted the overruled the entirety. Robby’stestimony was read in its roоm and law, read a trial had no discretion to At common the court materials testimony submit testimonial transcript of a witness’s or during jury deliberations. jury unsupervised for review room emphasis undue the submit designed prevent rale was to This State, v. in the case. Chambers ted materials over all other evidence 1986). (Wyo. 726 P.2d
Statutory permits jury’s law to court refresh the recollection of testimony trial certain under limited circumstances. Section 46-16- 503(2), provides: MCA. The statute jury deliberation,
“After any disagree- the has retired for if there is jurors testimony ment the the if among jurors as to or the to desire any point cause, be informed on arising they of law in the must require the officer conduct them into jurors court. When the brought court, requested may given into the information in the discretion the If given, court. such information is given it must be presence county attorney the of the and the defendant and his counsel.” 46-16-503(2),
Section MCA. construing In a Wyoming above, statute similar to the one supreme state’s court stated: change
“This statute not against does the common law rule sub- mitting testimonial jury unsupervised materials for and unre- dining stricted deliberations, review permit it does not trial courts repeat large just amounts of testimony jury because the a request. contrary, requires makes such On the it that the court discover jury’s difficulty, the exact nature of the isolate the precise it, weigh which can solve probative value testimony against danger emphasis. If, ofundue after careful discretion, exercise of court decides to repeat some jury, it can do in open presence so court in the parties or their counsel or under strictly procedures other controlled of which (Footnote omitted.) parties have been notified. The more testi- mony the repeats, greater danger court emphasis. undue procedures, Even with the best of it would be proper undеr the statute for the a transcript replay court reread or videotape of a just story jury witness’s entire because the wants to all review of testimonial happens matter that be available because the *11 general wants to the of credibility empha- review the witness. Undue delay likely.” sis and would too
Chambers,
We with the The kind request court. of contem- 46-16-503(2), MCA, plated by an inquiry concerning includes § testimony street, object, witness’s as to the of height width of a the an distance, request, time or some other limited not the but entire testimony the of witness. given
The instructions to the before it begins delibera any tions an requests should include instruction to submit for infor- request the writing. jury submits a written that mation in If the them, court should transcript be read to the district of a witness writing follows: respond in as any you transcript of error for me to furnish with a
“It would be verdict, your you in rendering the reason that particular witness for testimony any the of one give any emphasis undue should not Instеad, you all of all should consider witness the exclusion others. rendering your as a verdict. of the evidence whole “However, you reason or you particular point if have some witness, you may of trying to that relates to the evidence this resolve form, I will it give to me in written question submit that consideration.” testimony concerning a witness’s
Through process, inquiry an street, subjects the width of a the to such can be narrowed down distance, request. limited height object, of time or some other case, Court its discretion In this the District abused the reading testimony jury. reading of entire Robb/s emphasis on the placing defendant undue prejudiced testimony of the victim to the exclusion of the statement of other witnesses. and remanded for a new trial.
Reversed SHEEHY and TURNAGE and JUSTICES CHIEF JUSTICE langen, McDonough, the Leonard honorable BARZ, Judge, sitting concur. District Court for JUSTICE WEBER, dissenting: JUSTICE I in Mr. majority opinion. also concur strongly
I dissent from majority which demonstrates how Justice Harrison’s dissent majority juris- opposite direction from proceeding testimony in child sexual abuse cases. area dictions majority to part recognize good attempt faith I tragic of the of evidence. The very area law perplexing address severely handicapped capacity we have result who commit sexual offenses adults judicial system prosecute young children. upon very M.R.Evid., be allowed details the
Rule experts: technical, knowledge will assist scientific, specialized
“If other or to determine a fact the evidence trier fact to understand *12 skill, issue, an qualified expert knowledge, experience, a witness training, may testify opinion in form of an education thereto or otherwise.” case present specialized knowledge
In the we have the ofMs. Sandi acknowledged expert Burns who is an in the area of sexual abuse. part clearly The extensive on the of Ms. Bums assisted the given by trier of fact to understand and evidence the children key in regard charges determine facts issue with of sexual abuse. key professional sets forth the qualifications
part experts of the witnesses who in testified this case as in area of child sexual Janey pedia- abuse. was taken her mother her day trician on the after problems. her mother observed That Jane/s pediatrician she special training testified that had regarding the diagnosis children, of sexual abuse in small currently and she Valley was on the Yellowstone Sexual Abuse Team. While she could recall exact number of sexual abuse cases with which she had involved, been she estimated total of 50 to 75 cases. She testified she proceedings had been in court on sexual abuse on 10 or 15 different occasions. She medical witness who testified with regard to the bruises and abrasions were consistent with sexual abuse. Billings
The defendant cаlled a pediatrician who testified as an regard with to his prac- examination the children. hasHe ticed pediatrics Billings since He 1953. estimates that he has examined from 25 to 30 children for sexual He abuse. testified he found no evidence sexual abuse in the two children. Sandi Burns regard
Ms. testified with to her examination and Janey Robby. treatment of and Ms. Bums been engaged has psychotherapy approximately years for ten and one-half in the Bill- ings degrees counseling area. She has two psychology masters University. from Arizona State She is licensed Montana as a counselor, professional nationally licensed as a certified coun- specialized selor. She has in sexual for years, abuse cases over ten majority and a ofher case load ofthe diagnosis consists and treatment average of child sexual She patients abuse. sees of 50 sexual abuse She week. testified that has approximately she handled 1500 cases past years. child sexual abuse Her patients come from all parts taught ofMontana and from of approximately out state. She has workers, districts, FBI, workshops for the social school year 35 to 40 charged teachers, Burns was with the counselors and nurses. Ms. Robby. diagnosis Janey and treatment both ofmedical doctors apparent It is from the record that the treatment they caring until patients in sexual abuse cases is limited The treatment of the any from harm. physically have recovered *13 minor aspects of sexual abuse with children is mental and emotional two pediatricians left to as Ms. Burns. Note that the who experts such patients of the together as have not seen one-tenth experts testified years. total is than 150 by past Ms. Bums in the ten Their less seen emphasize Ms. Burns’ 1500 cases. I this because compared as to specialized knowledge if will assist the emphasizes Rule 702 that skill, fact, by knowledge, experience and qualified trier of a witness suggests Ms. may testify. that rationale that Burns training Applying by than doctors who see qualification experience has medical more a oftime with the children. far fewer cases and limited amount spend therapist does not see majority opinion states that because abuse, claim of sexual unless there has been a a child for treatment abuse, arguably predisposed to confirm the which has therapist the is negative of the statement. impact on the trustworthiness the that the circumstances which majority further concludes generally such that a therapist hears the statement guarantees oftrustworthiness. possess statement will circumstantial are made in this case. Such I am that such statements shocked unqualified cases been where might appropriate have That is not the case here. testifying were sexual аbuse. persons person to whom expert’s In Ms. Burns we have —the person treatment —the with the the children for pediatrician referred logic If the of the and treat sexual abuse. experience best evaluate areas, appear it would that we is in other majority opinion applied patient his of medical doctor because should mistrust treatment. The state- diagnosis potential was sent to him particularly totally unsupportable. a conclusion ments are Such is one of the most case Ms. Burns inappropriate where in the state of Montana. in the area of sexual abuse qualified persons I. credibility of the comment on improperly Did Ms. Burns alleged victims? majority majority opinion, emphasizes
In Part I ofthe that by credibility year Robby question was not called into six old defendant, it was and therefore concludes that reversible error Bobby’s comment directly Ms. Burns to on trustworthiness. She allow Rоbby little, honest, boy open country testified that was a who had trustworthy very to be a honest. appeared pretty Ms. Burns to a number of taken testified factors must be regard into consideration she can reach with to a before conclusions Janey initially child abuse victim. She illustrated how was unable to her, freely explained talk with how established facts so she Janey far as was concerned. Ms. Burns’ demonstrated is one weapons frequently fear used the adult abuser sexual upon inability a child victim. It reasonable to conclude that the Janey testify present upon case was based such fear. That is particularly judge true because the trial found that she unable was testify because Ms. Robby of fear. Bums testified that ex- tremely fearful because of threats made defendant and her Robby testify trial, husband. While it is fortunate that was able to at have testify no assurance he will be able to retrial. As pointed Bums, out Ms. his depend upon mental and emotional *14 state at the time of retrial. emphasized Burns, by
As Ms. this experts recognize field that children difficulty telling sometimes have story they their — frequently deny the occurrence of the sexual abuse at various times — fearful, if the present they occasions reasons for to them become testify, will refuse to previously or contradict given. testimony Robby which persuasive the Court finds so is a demonstration of the problems this area. On retrial we have no Robby testify assurance that still openly. will be able to If he further is threatened, previous made, or he recalls the may threats he choose deny case, having to ever testified as he did. that the Should be the person best to the psychologist-therapist able discern truth is the who day met day has after and week after with the patient, week upon case, her experience, present based as she did in the reached a conclusion regarding the truthfulness of the statements. applied may have which applicable
We a rule be adult witness totally cases but is inappropriate here. The of Ms. Burns clearly helpful was trier of fact or not to determine whether Robby telling accurately the tmth and or not he told whether had happened Janey. what to him and to In types expert may testify other of cases conclude that an on we aspects bearing by jury. the to the on ultimate fact be determined We recognize by jury. the experts properly that can be evaluated Based upon training ofthe knowledge, experience expert, the extensive 702, M.R.Evid., it Rule to allow the appropriate seems under determine Obviously jurors to assist the the facts issue. few background experience dealing have or with child sexual abuse with part which reactions on the of child abuse victims. to evaluate I it was Ms. conclude that not reversible error to allow Burns to tеstify credibility encourage the Robby. giving as to the We should the jurors, of this essential information to triers of fact.
II. allowing identify Did District Court err in Ms. Burns to the the crimes defendant the as to testifying as during made her the course of victims therapy?
In discussing whether or not the evidence was admissible under M.R.Evid., 803(4), diagnosis Rule excep- the medical and treatment tion, majority emphasized reliability of the medical exception treatment because the declarant who seeks assured the truth we possesses medical treatment a selfish motive to tell may telling That therefore assume that the declarant was truth. 803(4),. ignores wording of provides our Rule state- ments are diagnosis made for either medical treatment admissible. diagnosis presumably Statements made for medical reliable claim, attempting because the declarant to establish fact, that expert with no intent to seek treatment from witness. In Bums, argument highly probably stronger allowing Ms. it wоuld for a qualified expert, testify than have been medical emphasize We testifying diagnosis. doctor because Burns to be to her treatment. information was stated Ms. essential majority I disagree with narrow construction of the also 804(b)(5). guidelines residual Rule In the con- exception (1988), P.2d tained v. J. C. 235 Mont. in State E. *15 testimony may of such well pointed components out that the main following: include the act can
“a. Whether the be corroborated. whether that perpetrator, “b. If the child’s statement identifies identity can be corroborated.” admissibility
We emphasized that the of the evidence remains in judge. the discretion of the trial Robby
The majority opinion year concludes that because six old assault, able link was the defendant to the sexual the identification expert through hearsay was statements cumulative. Unfortunately, no we have assurance that will be Robb/s expertise available on retrial. Because ofthe extent ofMs. Bums’ and difficulty of ascertaining young the extent to which a truth, have clearly told the I conclude that Ms. Burns’ probative help Bobby’s the most the jury evidence evaluate testi- mony.
Again, emphasize I that we treat these as though child witnesses they testimony by were adults. The Ms. Burns experts and other establishes that it is appropriate apply the same standards as applied adults. 804(b)(5)
I preliminary protections conclude of Rule have been met in this case and that the I properly admitted. am part disturbed the conclusion on the the majority that it is only in extraordinary case that aby therapist, concerning identify either the of the or the nature of the abuse, possess sufficient guarantees circumstantial to be admissible. There is no factual basis such conclusion.
Summary The tragic result is that we have rather casually reversed a conviction overwhelming guilt with establishing evidence of the We multiple defendant. have created parents dilemmas: for the Janey Robby both the dilemma is whether not to allow their children go through frightening process hurtful of another part prosecution trial. The dilemma on the they is whether will put together be able to sufficient allowable evidence to convict the defendant so as to warrant their insistence the children and parents go through painful process. retrial very best,
While our intentions have been of the have now reversed the convictions as to both defendant Harris and her hus- guilty band. Defendant Harris has been found based on overwhelming pursuit justice strange evidence. Our leads to tragic results as we reverse.
424 dissenting.
JUSTICE HARRISON and add to it the fact that I in Mr. Weber’s dissent concur Justice only in numerous expert has as an witness not Sandi Burns testified is the Federal the federal courts and used other states but before in an We find ourselves Investigation of as an witness. Bureau 804(b)(5) testimony Rule denying under аmazing situation of her Montana, testifying to the same fact yet a if she were state court Montana, her would be situation in a federal court in received. admissibility psychiatric and of question regarding
While the criminal actions arises in psychological in child abuse decisions, my opinion, should cases, principles of these the same also have in civil actions. applicability some dramatically past over the de-
Child have increased abuse cases from sexual abuse An one in five females suffers cade. estimated However, cases, is child abuse the incident a child. in two-thirds of (4th 1988), Cir. F.2d 943. reported. Morgan v.Foretich 846 never sole reported, convictions are few. Because the Even when abuse is testify very young incompetent a child who witness is often be lacking, prosecu- frequently evidence is physical at trial and because Thus, statements made the admission of a child’s tion is difficult. Id. during the cоurse discovery of of the abuse to adults at the time According to the comments therapy of is crucial to the State’s case. “[wjhen Evidence, evidence Rules the choice is between Federal of all, folly at clear would than and no evidence less best Art. doing Fed.R.Evid. policy of without.” dictate an across- the-board note. advisory VIII committee’s cases, federal courts have admitted
In child abuse workers, physi as well as and social psychologists children made 803(4), rule, Rule cians, the medical exception under 949; Morgan, rule. 846 F.2d at Fed.R.Evid., the Montana identical to (8th 1987), 438; 811 F.2d United DeNoyer v. Cir. United States (9th fact, 1979), 1199, 1201-1202. In F.2d v. Cir. States Nick “[ujnder 803(4) advisory note to Rule states committee physician. been made a statement need not have exception the drivers, mem attendants, or even ambulance hospital Statements 803(4) advisory might included.” Fed.R.Evid. family bers of the note. committee’s admitting such two-part test for have instituted
Federal courts (1) must making the statement motive in the declarant’s statements: (2) treatment; purposes promoting with the be consistent reasonably relied on such as is must be content of the statement (8th 1985), 779 F.2d v. Renville Cir. United States physician. are fre- of medical treatment purposes made for 436. Statements of whether individual regardless into evidence admitted quently testify Morgan, at trial. competent to made the statement who at 949. F.2d four-year-old statements of allowing
In
the admission
Appeals
Court of
treating
the Fourth Circuit
psychologist,
child to her
purposes
statements for the
a child’s motive to make true
found that
an adult’s.
strong
stronger
than
diagnosis or treatment
is as
*17
reasonably relies on the child’s
Secondly,
therapist
physician
the
or
diagnosis. Morgan,
In our sister state of in State v. Petrich 566, 173, 2d Washington expert Wash. 683 P.2d court allowed an why sexually delay reporting describe abused children often delay abuse length relationship correlates with the Washington Supreme between the abuser and the child. The Court court; did not disturb action the trial it did however find prejudicial expert’s statement that in most instances a child is molested by someone he or she knows. (1983), 427, 1215,
In State v. Middleton
294 Or.
657 P.2d
two social
complainant’s
workers testified that the
behavior was consistent with
reported
by family
that of other children who
sexual molestation
(Fla.
1988),
Similarly,
App.
member.
in Ward v.State
1Dist.
519 So.2d
court,
evaluating
psychologist
of a clinical
syndrome
sufficiently
“[c]hild
commented that
abuse
is an area
developed
permit
testify
symptoms
that the
observed
displayed by
the evaluated child are consistent with those
victims
Ward,
also, Calloway
of child abuse.”
In Myers State v. 359 N.W.2d the court allowed psychologist generally a clinical describe behavior children; symptoms typically by sexually exhibited abused she was opinion having allowed to state her that the child truthful about Minnesota Following Myers, Appeals been abused. Court of re- cently “[ejxpert testimony describing held that the traits and charac- sexually typically teristics found in abused сhildren and those the *18 complainants expert had observed in the is admissible .... An may testify properly also that the child’s behavior is consistent with (Minn. sexually profile App. abused child.” State v. Dana 1987), 147, 153, grounds, 416 N.W.2d rev’d on other N.W.2d 246 (1988). jury judge credibility By
The is the sole of witnesses. testimony denying case accepting of Sandi Bums we are jury opportunity to hear the of one who can add to majority’s The jury’s ability fairly to decide the factual issues. unsup- therapist predisposed statement that a to find abuse is merely conclusory ported by research or other evidence and is therapist experienced I find that a as as opinion. it more credible lay Sandi Burns is better able than a witness to detect fabricated children. majority’s relationship assertion that between a broad therapist “negative impact and a child client on the trustwor- has equally thiness of the statements” is without foundation. As case, in this children in a situation are оften threatened sexual abuse they say anything with harm or death to and others if themselves Thus, betrayed by about the a child trust abuse. whose abuser may take weeks or even months to trust an adult before he or she will testified, reveal details of the abuse. As Sandi Bums the child’s therapy necessarily response ques- statements in are not made to tioning, may divulged through play but while the child is at pictures therapist non-leading the child draws. A is trained to ask case, questions. any particular In the trial court needs to assess the a therapist circumstances under which the child’s statements to made, beginning insupportable assumption rather than with the inherently the statements are unreliable. knowledgeable
Sandi Burns is so well trained and in her field that even medical I professionals patients refer to her. am reluctant to categorically preclude here, all such we have done since virtually opinion it is the unanimous of commentators that under certain expert psychiatric testimony may circumstances reveal to the trier of fact characteristics or conditions of the witnesses which Saxe, jury credibility. assist the assessment of their See Psychiatry, Psychoanalysis, Credibility ofWitnesses, and the 45 Notre 238, (1970); Juviler, Lawyer Psychiatric Opinions Dame as to Credi- bility (1960); A Suggested Approach, Witnesses: 48 Cal.L.Rev. 648 (1972 ed.). McCormick, Evidence, Section 45
By are, today, my opinion, setting our action back prosecution years of child abuse cases in Montana for come. following legislative exceptions states have enacted (limited Alabama, grand rule in child sexual abuse cases: Alaska Arkansas, Arizona, (only determining testimony,), purpose of California Florida, Idaho, confession), Colorado, Georgia, admissibility of defendant’s Nevada, Illinois, Indiana, Minnesota, Kentucky, Maryland, Mississippi, New (limited damages Hampshire to recover on behalf of a minоr to civil cases (limited assault), juvenile family Jersey law child for abuse of New (limited (limited court), cases), juvenile cases), family Ohio York law New *19 428 (limited cases),
Oklahoma, Pennsylvania juvenile family Oregon, and law (limited Dakota, Utah, Virginia involving to civil cases child abuse and South neglect), Washington. these, Arizona, Kentucky Mississippi
Of
have declared their statutes
law,
ground
unconstitutional on the
that under their constitutions and state
judiciary,
legislature
evidentiary
rather than the
controls
rules. See State
(1987),
191,
801;
v. Robinson
153 Ariz.
735 P.2d
Drumm v. Commonwealth
(Miss
380;
1989),
(Ky.1990),783 S.W.2d
Hall v. State
Typical of the statues is the law enacted in provides: “A statement made age describing a child when under the of ten another, any performed act of sexual contact with or on the child rule, not otherwise admissible statue or court is admissible in Title and crimi- dependency proceedings evidence under 13 RCW Washington nal in the the state of if: proceeding courts of (1) finds, hearing presence jury, The court in a conducted outside the content, provide that the sufficient time and circumstances of statement reliability; indicia of
(2) The child either:
(a) proceedings; Testifies at the
(b) Is unavailable as a witness: Provided witness, may such statement That when the child is unavailable as admitted if there evidence of the act. is corroborative proponent unless the “Astatement not be admitted under section party of the statment makes known to the adverse his intention offer sufficiently in ofthe particulars statement and the ofthe statement advance party opportunity prepare proceedings provide the adverse with a fair to meet the statement. (1988). Rev. 9A.44.120
Wash. Code §