138 Wis. 2d 418 - State v. Nelson’s Empirical Analysis

Citation profile

2 federal appellate · 57 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 64 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness: (4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. 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.”

   2 later decisions quote this exact passage · from the majority
   e.g. 604 So. 2d 249 - Baine v. State · 688 F. Supp. 1304 - Nelson v. Ferrey

2. “In the present case a number of factors support a finding that T.N. was aware that her statements were being used as a basis for medical diagnosis or treatment. T.N.’s sessions with Dr. McLean, although mainly conducted in a play therapy room, were scheduled and conducted in a manner consistent with the provision of diagnosis and treatment. Dr. McLean had a waiting room in which T.N. and her mother would await their regularly scheduled appointments. T.N. was aware that she saw Dr. McLean on an appointment basis and that he was not her peer. Very early in the treatment, Dr. McLean made it clear to T.N. that he was an authority figure, not a playmate. T.N. began her treatment with Dr. McLean by undergoing a series of tests and evaluations. Although most of the sessions were conducted in a play therapy room, T.N. would occasionally sit and speak with Dr. McLean in his formal office. T.N. was described as a very intelligent child. We conclude that T.N. was aware that she was being observed, with a goal towards treatment. Furthermore, there is nothing in the record to indicate that T.N.’s motive in making the statements to Dr. McLean and Dr. Silberglitt was other than as a patient seeking treatment. It is always difficult for a court to determine whether a very young child completely understands the context in which information is sought from that child. However, we do not believe that, because a child is only three or four years of age at the time he or she goes to a doctor, the ”

   1 later decision quote this exact passage · from the majority
   e.g. 688 F. Supp. 1304 - Nelson v. Ferrey

3. “That element of reliability, despite the unsupported assertions of the majority, are absent here. The patient was three years old, there was no evidence that the child had any idea that the numerous sessions with the psychologist were for the purpose of treatment. Indeed, the record shows that the technique of eliciting information from the child was to simulate play. Thus, while there was no circumstance that would tend to cause a person, even in a post litem motem situation, to not tell the truth, the affirmative evidence of reliability that would be induced by a consciousness of the fact of treatment was entirely absent. The assertion that the interrogator was an authority figure is irrelevant to the rationale of the exception. There is no hearsay exception for statements made to authority figures. Unfortunately, it is the court here which gives recognition to the psychologist as an authority figure. Under this evidentiary scheme, the credence is being given not to the child, whose reliability is not enhanced by the circumstances, but to the hearsay testimony of the reporting psychologist.”

   1 later decision quote this exact passage · from the majority
   e.g. 688 F. Supp. 1304 - Nelson v. Ferrey