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The State of Ohio, Appellant, v. Dever, Appellee.
[Cite as State v. Dever (1992), Ohio St.3d .]
Criminal law -- Sexual abuse of child -- Admissibility of child
declarant's statements -- Admission into evidence of a
hearsay statement pursuant to a firmly rooted hearsay
exception does not violate a defendant's right of
confrontation -- Evid.R. 803(4), applied.
1. A trial court does not abuse its discretion when it admits
a child declarant's statements made for the purpose of
medical diagnosis or treatment pursuant to Evid.R. 803(4),
without first establishing the child declarant's
unavailability to testify. (State v. Boston [1989], 46
Ohio St.3d 108,
545 N.E.2d 1220, modified.)
2. Statements made by a child during a medical examination
identifying the perpetrator of sexual abuse, if made for
purpose of diagnosis and treatment, are admissible
pursuant to Evid.R. 803(4), when such statements are made
for the purposes enumerated in that rule.
3. The admission into evidence of a hearsay statement
pursuant to a firmly rooted hearsay exception does not
violate a defendant's right of confrontation. (White v.
Illinois [1992], 502 U.S. , 112 S.Ct. 736,
116 L.Ed.2d
848, followed.)
(No. 91-1498 -- Submitted April 28, 1992 -- Decided August
19, 1992.)
Appeal from the Court of Appeals for Hamilton County, No.
C-880712.
At approximately 10:00 p.m. on October 21, 1987, Diane
Potter, who lived on the second floor of a multifamily
residence in Mariemont, Ohio, overheard a conversation by
tenants on the first floor of the building. The tenants of the
first floor were defendant-appellee Frederick M. Dever, Jr.,
his wife, and their daughter Kristen, age four and one half,
who had been adopted by appellee. Dever's wife was not at home
during the time in question. Potter testified at trial that
the ductwork in the building often carried sounds from the
first floor up to her living area, so that she could clearly
hear what was said in the apartment below. Potter testified:
"I heard Kristen crying and I heard Fred saying come on,
come on, it will only take you a minute and Kristen kept saying
no, daddy, I'm sleeping and he kept saying come on, Kristen,
come on, it is only going to take a minute. She said no,
daddy, I'm sleeping and then finally she said okay and I guess
-- I could hear them talking and it was just mumbling and it
seemed like it was getting closer but I wasn't really paying
attention at that time because I figured, I didn't really know
what he was getting her up for but I figured it was something
she had to do."
Potter further testified that she was in her bathroom when
she heard the following coming from the Devers' bathroom below:
"Then I heard them talking. I heard Fred groaning, he
groaned three times very loudly and that was what made me
really start listening, I didn't turn on the water, I just
listened and I heard him tell Kristen to count to 600 and I
heard her counting and then he said oh, that feels so good and
she said oh, does that feel good, daddy, and he said yes and
then he told her to keep counting and she stopped and he said
come on, just count to 20, just count to 20 and she said no, I
don't want to. I could hear mumbling and then I heard her say
oh, daddy, you got it all over my hand and he said yes, I got
it all over you, didn't I, and then I just left the house, I
went next door and called the police."
Potter went to the police station and filled out a report
on the incident that same night. The next day, Dever's wife
was informed of the allegations, and cooperated in removing
Kristen from Dever's presence. On October 23, the following
day, the sexual abuse intervention team of the Hamilton County
Department of Human Services became involved. Kristen was
taken to Children's Hospital where she was seen by Dr. Ann
Saluke, M.D.
Dr. Saluke's physical examination of Kristen did not
disclose any physical signs of recent sexual conduct. However,
during the course of the consultation, Kristen told Dr. Saluke
of the events that had recently occurred, and identified Dever
as the perpetrator.
Dever was charged with one count of rape, in violation of
R.C. 2907.02, and one count of gross sexual imposition, in
violation of R.C. 2907.05. The case proceeded to jury trial.
At a pretrial hearing, the trial judge considered whether
Kristen was competent to testify. Despite finding that Kristen
understood the difference between truth and falsehood, the
trial judge decided that Kristen would be unable to relate the
events in question at the trial, and so did not find her
competent to testify, pursuant to Evid.R. 601.
A crucial issue at trial was whether Dr. Saluke should be
permitted to testify to what Kristen had related during the
course of the medical examination. Dever made a motion in
limine to prohibit Dr. Saluke from testifying as to what
Kristen told her. The trial judge, specifically relying on
United States v. Renville (C.A. 8, 1985), 779 F.2d 430,
indicated that he believed the testimony was admissible, but
did not rule on the motion at that time.
At trial, and over Dever's objection, Dr. Saluke was
permitted to repeat Kristen's statements to the jury pursuant
to Evid.R. 803(4), the medical diagnosis or treatment exception
to the hearsay rule. Dr. Saluke testified:
"Kristen told us that her father put his pee pee in her
mouth and there was some white stuff that had a yucky taste and
also that he put his hands on her pee pee and his pee pee on
her pee pee and she identified her genital area as the pee pee."
After deliberations, the jury returned verdicts of guilty
on both counts. The trial judge found that the counts were
allied offenses of similar import and merged them, sentencing
Dever only on the rape count.
Upon appeal, Dever argued that the trial court erred by
allowing Dr. Saluke to testify regarding Kristen's statements.
The court of appeals affirmed the conviction, but
recharacterized the trial judge's finding that Kristen was not
competent to testify (see Evid.R. 601) as a finding that
Kristen was unavailable to testify (see Evid. R. 804[A][3]).
The court of appeals further found that there was a "guarantee
of trustworthiness" in the circumstances surrounding the
child's statements which satisfied the standards of State v.
Boston (1989), 46 Ohio St.3d 108,
545 N.E.2d 1220.
Dever appealed that decision to this court, which
overruled his motion for leave to appeal. 52 Ohio St.3d 701,
556 N.E.2d 526. Dever's motion for rehearing was also denied.
53 Ohio St.3d 706,
558 N.E.2d 62.
Dever then appealed to the United States Supreme Court,
which vacated the judgment of the Hamilton County Court of
Appeals, and remanded the cause to the appellate court for
further consideration in light of Idaho v. Wright (1990), 497
U.S. 805,
110 S.Ct. 3139,
111 L.Ed.2d 638. Dever v. Ohio
(1990), 498 U.S. ,
111 S.Ct. 575,
112 L.Ed.2d 581.
In a split decision, the court of appeals reversed the
judgment of the trial court, and remanded the cause for a new
trial. The majority decided that the record did not support a
conclusion that Kristen's statements were motivated by her own
desire for medical diagnosis or treatment. The dissenting
judge would have approved admitting Kristen's hearsay
statements under Evid. R. 803(4).
The cause is now before this court upon the allowance of a
motion for leave to appeal.
Arthur M. Ney, Jr., Prosecuting Attorney, and Christian J.
Schaefer, for appellant.
Andrew B. Dennison, for appellee.
Alice Robie Resnick, J. This case presents the
continuing problem of reaching just results in child abuse
cases involving statements made by young children during the
course of a medical examination. We must consider the
admissibility of the statements at trial pursuant to the
hearsay exception contained in Evid.R. 803(4). The principal
dilemma arises in attempting to apply to children evidentiary
rules which were drafted with adults in mind. In applying
these rules of evidence to children, we encounter considerable
problems in devising a reasonable and workable application.
Nevertheless, we continue to strive for balance in this
troublesome area of the law. As was noted in State v. Boston,
supra, 46 Ohio St.3d at 113,
545 N.E.2d at 1226: "… [I]t
is the goal of all the members of the judiciary that results
are reached that are equitable and fair to both society and
defendants who find themselves charged with the crime of child
abuse."
In considering the circumstances in the instant case, we
must address two principal issues: (1) Did the trial judge
abuse his discretion in allowing Dr. Saluke to repeat at trial
statements Kristen made to her during the medical examination
as an Evid.R. 803(4) hearsay exception?1 and (2) What, if any,
is the impact of the Confrontation Clause of the Sixth
Amendment to the United States Constitution2 on our inquiry?
For the reasons which follow, after careful consideration,
we resolve the first issue by finding no abuse of discretion on
the part of the trial judge in admitting the hearsay testimony
pursuant to Evid.R. 803(4). As to the second issue, we
determine that Evid.R. 803(4), as applied to the circumstances
of this case, is a firmly rooted hearsay exception; we apply
the analysis contained in White v. Illinois (1992), 502
U.S. , 112 S.Ct. 736,
116 L.Ed.2d 848, to that conclusion;
and we find no violation of Dever's right of confrontation. We
therefore reverse the judgment of the court of appeals, and
reinstate Dever's conviction.
I
The initial issue for our consideration is whether the
trial court abused its discretion in admitting into evidence
Kristen's hearsay statement to Dr. Saluke under Evid.R.
803(4). A related question, which directly affects the
Confrontation Clause issue presented in Part III of this
opinion, is whether the Evid.R. 803(4) exception, in the
circumstances of this case, is a firmly rooted hearsay
exception.
Because this court wrestled with many issues raised in
similar circumstances in State v. Boston, supra, a detailed
examination of that case is required.
A
Boston involved a defendant who was tried and convicted of
gross sexual imposition based on an incident involving his
two-and-one-half-year-old daughter. The defendant had been
given weekend visitation rights with his daughter pending a
divorce from his wife. After being with the father one
weekend, the child awoke during the night screaming. The
mother questioned the child, who related, "Daddy put something
up my bucket." Upon finding redness around the child's vagina
and anus, the mother took the child to a doctor the next day.
Although the doctor found no specific evidence of abuse, he
referred the mother to Akron Children's Hospital. The director
of the hospital's Child Abuse Team, a pediatrician, later
examined the child. The child told the pediatrician that
"Daddy put a telephone in here and it hurt." Based on the
child's statements, her medical history, and the examination
(which revealed a whitish discharge and redness around the
labia minora, and a hymenal opening larger than normal), the
doctor made a diagnosis of probable vaginal penetration and
possible rectal penetration. A psychologist, an expert in
child sexual abuse, counselled the child, and determined that
the child was not falsifying, and that she had been a victim of
sexual abuse.
At defendant's trial, the prosecution attempted to present
the child's testimony. The trial judge conducted a voir dire
examination of the child, and found her incompetent to
testify.3 However, hearsay statements made by the child to her
mother, to the doctor who had diagnosed probable vaginal
penetration, and to the psychologist were admitted at trial.
In addition, the court permitted opinion testimony that the
child had not fantasized her accusation. The jury returned a
verdict of guilty of gross sexual imposition, and the defendant
was sentenced. Upon appeal, the court of appeals affirmed the
judgment of conviction. Id.,
46 Ohio St.3d at 108-111,
545
N.E.2d at 1222-1225.
This court, in reversing the judgment of conviction and
remanding to the trial court, addressed a number of evidentiary
issues which arise within the context of a child abuse case.4
Especially relevant to the instant case is Boston's discussion
of Evid.R. 803(4), the hearsay exception involving statements
made for purposes of medical diagnosis or treatment, including
the motivational component of Evid.R. 803(4), the effect of
Ohio's Evid.R. 102 on Evid.R. 803(4), and the admissibility of
statements by a child identifying the perpetrator in an abuse
prosecution.
B
Evid.R. 803(4) allows into evidence, as an exception to
the hearsay rule, "[s]tatements 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."
Ohio's Evid.R. 803(4) is identical to Fed.R.Evid. 803(4).
In essence, Boston found that the admissibility of
statements for medical treatment or diagnosis pursuant to
Evid.R. 803(4) depends upon the motivation of the declarant to
make the statement. "'… The rule's narrow limitation is
based upon the belief that the declarant's subjective motive
generally guarantees the statement's trustworthiness. Since
the effectiveness of the treatment depends upon the accuracy of
information given to the physician, the declarant is motivated
to tell the truth. …'" Id.,
46 Ohio St.3d at 121,
545
N.E.2d at 1233, quoting State v. Eastham (1988),
39 Ohio St.3d
307, 312,
530 N.E.2d 409, 413 (H. Brown, J., concurring).
Serious problems arise in admitting the statements when a
"child of tender years" is the declarant because that child
will often not be personally motivated to seek treatment.
"… [S]uch a young child is not giving the doctor the
information for the purposes required by Evid.R. 803(4). More
than likely, the child does not even want to be seeing the
doctor[.]"
Boston, supra, at 122,
545 N.E.2d at 1234.
C
While Boston noted that many courts have applied Evid.R.
803(4) in child abuse prosecutions when the declarant is a
young child without considering the motivational component of
that hearsay exception, Boston concluded that such an
interpretation is inconsistent with Ohio's version of Evid.R.
102. Id.,
46 Ohio St.3d at 121-122,
545 N.E.2d at 1233-1234.
Fed.R.Evid. 102 states that the Federal Rules of Evidence
shall be construed in order to promote the "growth and
development of the law of evidence …." In contrast, Ohio
Evid.R. 102 states that Ohio's Rules of Evidence "shall be
construed to state the common law of Ohio unless the rule
clearly indicates that a change is intended …." Boston
concluded that this significant difference between the two
rules means that federal courts (or any court sitting in a
state which has a rule identical to Fed.R.Evid. 102) are
permitted to construe the rules of evidence broadly, but that
Ohio courts may not do so. Id.,
46 Ohio St.3d at 116,
545
N.E.2d at 1229. See Staff Note to Ohio Evid.R. 102.
Boston, in commenting on a federal court decision that did
not question whether a three-year-old child's motivation in
telling a doctor about an abuse episode was relevant to the
admissibility of the child's hearsay statements (United States
v. Nick [C.A.9, 1979], 604 F.2d 1199), stated: "… [B]y
discarding the motivational component of Evid.R. 803(4) …,
the federal appellate court has rewritten the rule -- or at
least very liberally construed the rule to promote the '…
growth and development of the law of evidence ….'
Fed.R.Evid. 102." Boston,
46 Ohio St.3d at 122,
545 N.E.2d at
1234.
D
Boston also raised the question whether Evid.R. 803(4) may
be construed to allow into evidence a young child's statement
identifying the perpetrator of the abuse. Id.,
46 Ohio St.3d
at 123,
545 N.E.2d at 1235. Because Boston conditioned the
admissibility of statements made by a child on the child's
motivation to seek treatment, it was not necessary in that case
to resolve that specific issue. If the child was not
personally motivated to seek treatment, Boston found that none
of the child's statements would be admissible pursuant to
Evid.R. 803(4), including the statement identifying the
perpetrator of the abuse.
Id. at 122-123,
545 N.E.2d at
1234-1235.
In summary, Boston reasoned that the common-law hearsay
exception for statements made for medical treatment stems from
the declarant's motivation to speak the truth in order to
obtain effective treatment. Boston also found that Ohio's
Evid.R. 803(4), as adopted in 1980, did not dispense with the
common-law motivational component. Id. at 121,
545 N.E.2d at
1233. Moreover, Boston found that the child declarant's
statements to the pediatrician were not admissible pursuant to
Evid.R. 803(4), because the motivational component was absent,
and that the statements did not fall within a defined hearsay
exception. Boston did find, however, that certain of the
statements were admissible under Ohio v. Roberts (1980),
448
U.S. 56, 66,
100 S.Ct. 2531, 2539,
65 L.Ed.2d 597, 608, which
requires a "particularized guarantee of trustworthiness."
Boston, supra, at 125-128,
545 N.E.2d at 1237-1239.5
II
Boston, in noting that Ohio Evid.R. 102 requires an Ohio
court to apply the common law unless a change clearly is
intended, essentially found that no change from the common-law
motivational requirement was intended, and hence concluded that
the medical diagnosis or treatment hearsay exception will
rarely apply when a child of tender years is the declarant.
Id.,
46 Ohio St.3d at 120-122,
545 N.E.2d at 1232-1234. For
the reasons which follow, we disagree with that conclusion
reached in Boston, and modify Boston accordingly.
We are aware of the significant factual difference between
the case at bar and Boston. Boston involved allegations of
child sexual abuse which occurred in the context of a "bitter
battle for custody." Id.,
46 Ohio St.3d at 108,
545 N.E.2d at
1222. For that reason, the possibility that the child's
statements to professionals may have been programmed or
influenced by the custody battle made those statements more
suspect than the statements in the instant case. Although the
Boston court did not approve the admission of the child's
statements under Evid.R. 803(4), the court did ultimately find
them admissible because they were sufficiently trustworthy.
However, in the circumstances of this case, we find that the
trial court did not err in finding that the child's statements
were in fact admissible under Evid. R. 803(4).
A
The practical result of reading Boston's rigid
motivational requirement into Evid.R. 803(4) is that a young
child's statements to a doctor in the course of a medical
examination will virtually never be admissible under that
rule. While we do recognize that Evid.R. 102 significantly
restricts our ability to interpret the Ohio Rules of Evidence,6
we do not believe that Evid.R. 102 requires such a sweeping
result.
Though we agree with Boston that "applying this [Evid.R.
803(4)] exception to this category of cases entails inherent
problems[,]" id.,
46 Ohio St.3d at 121,
545 N.E.2d at 1234, we
do not believe Evid.R. 102 mandates such a restrictive approach
to these problems. Boston gives the impression that if the
slightest possibility exists that the child's statements were
not motivated by her own desire to obtain medical diagnosis or
treatment, the statements may not come in as an Evid.R. 803(4)
exception. We believe that it is not necessary to apply that
approach to every instance in which a child of tender years
makes a statement in the course of diagnosis and treatment.
While we recognize that a young child would probably not
personally seek treatment, but would generally be directed to
treatment by an adult, we do not find that the child's
statements relating to medical diagnosis or treatment are
always untrustworthy for that reason alone. Once the child is
at the doctor's office, the probability of understanding the
significance of the visit is heightened and the motivation for
diagnosis and treatment will normally be present. That is to
say, the initial desire to seek treatment may be absent, but
the motivation certainly can arise once the child has been
taken to the doctor. Absent extraordinary circumstances, the
child has no more motivation to lie than an adult would in
similar circumstances. Everyday experience tells us most
children know that if they do not tell the truth to the person
treating them, they may get worse and not better. An overly
strict motivational requirement for the statements of young
children will almost always keep those statements out of
evidence. That is not an acceptable balance of competing
interests. We are unwilling to approve a rule which allows a
person accused of abusing a young child (when there is no
physical evidence of that abuse) to keep the child's statements
to a doctor out of evidence simply because of a lack of initial
motivation to seek treatment. In many situations, the
statements of young children are sufficiently trustworthy and
can appropriately be admitted pursuant to Evid.R. 803(4). See
State v. Larson (Minn.1991),
472 N.W.2d 120; People v. Meeboer
(1992),
439 Mich. 310, N.W.2d ,
1992 WL 113254. We
further find that Evid. R. 102 does not foreclose that result.
We do not find that the common-law basis for the medical
treatment exception to the hearsay rule, at least where young
children are concerned, is as specific as Boston found.
Rather, the focus must be slightly different when a child is
involved. The trial court has broad discretion to determine
whether a declaration should be admissible as a hearsay
exception. State v. Rohdes (1986), 23 Ohio St.3d 225, 229, 23
OBR 382, 385,
492 N.E.2d 430, 434; see, generally, State v.
Duncan (1978),
53 Ohio St.2d 215,
7 O.O.3d 380,
373 N.E.2d
1234. The trial court should consider the circumstances
surrounding the making of the hearsay statement. If the trial
court finds in voir dire that the child's statements were
inappropriately influenced by another, then those statements
would not have been made for the purpose of diagnosis or
treatment. This inquiry will vary, depending on the facts of
each case. For example, the trial court may consider whether
the child's statement was in response to a suggestive or
leading question (as was the case in Idaho v. Wright), and any
other factor which would affect the reliability of the
statements (such as the bitter custody battle in State v.
Boston). If no such factors exist, then the evidence should be
admitted. The credibility of the statements would then be for
the jury to evaluate in its role as factfinder. In addition,
the witness whose testimony brings in the child's hearsay
statement can be cross-examined about the circumstances
surrounding the making of the statement. But if the trial
court discerns the existence of sufficient factors indicating
that the child's statements were not made for the purpose of
diagnosis or treatment, the statements must be excluded as not
falling within Evid.R. 803(4).
We find further support for our holding in that portion of
Evid.R. 102 which allows a court to deviate from the common law
when "the rule clearly indicates that a change is intended
…." Prior to 1980, Ohio allowed into evidence hearsay
statements in medical treatment situations only when the
statements were specifically relevant to the doctor's treatment
of the patient. See Cleveland Ry. Co. v. Merk (1932), 124 Ohio
St. 596,
180 N.E. 51. When Evid.R. 803(4) was adopted in 1980,
that rule changed the common law by also allowing into evidence
hearsay statements for purposes of diagnosis. See Staff Note
to Evid.R. 803(4); Palmer, Ohio Courtroom Evidence (1988) 23-12
to 23-13, Chapter 23. This change, making Ohio's Evid.R.
803(4) identical to Fed.R.Evid. 803(4), shows that a strict
common-law interpretation of the hearsay exception for medical
diagnosis or treatment is not appropriate in all situations.
In addition, the motivational element of Evid.R. 803(4)
(often termed the "selfish interest" rationale) is not the only
reason that statements for the purpose of medical diagnosis or
treatment are more reliable than other hearsay statements. In
Renville, supra, the court noted that there is a second reason
for the medical diagnosis or treatment hearsay exception--that
such statements are "reasonably relied on by a physician in
treatment or diagnosis."
Id.,
779 F.2d at 436. See,
generally, Mosteller, Child Sexual Abuse and Statements for the
Purpose of Medical Diagnosis or Treatment (1989), 67 N.C.L.Rev.
257. See, also, 2 McCormick on Evidence (4 Ed.1992) 250 ("The
general reliance upon 'subjective' facts by the medical
profession and the ability of its members to evaluate the
accuracy of statements made to them is considered sufficient
protection against contrived symptoms. Within the medical
profession, the analysis of the rule appears to be that facts
reliable enough to be relied on in reaching a diagnosis have
sufficient trustworthiness to satisfy hearsay concerns.").
Because the Ohio version of Evid.R. 803(4) allows the
admission of hearsay statements made for the purpose of
diagnosis, it is apparent that this reliance factor is also a
basis for the exception. The aspect of Evid.R. 803(4) which
provides a hearsay exception for statements for diagnosis is
inconsistent with the rigid "selfish interest" analysis of
Boston. Although we recognize that "professional reliance,"
standing alone, may not be as significant an indicator of
reliability as "selfish interest," it must be afforded some
weight. It further supports the admissibility of hearsay
statements in situations involving young children. For those
reasons, the motivation of the declarant is not the only factor
supporting the reliability of the statements.
Keeping in mind that the child's motivation is not the
sole focus of the Evid.R. 803(4) inquiry, we find evidence of
the child's motivation in the record, as revealed in Dr.
Saluke's testimony. The court of appeals, in its majority
opinion reversing Dever's conviction, found insufficient
evidence of Kristen's motivation to seek treatment. Dr. Saluke
testified that, during the course of the examination, she
followed the customary procedure of explaining to Kristen why
she was asking the questions. The court of appeals, however,
was unconvinced that Kristen understood the purpose of the
questioning. In reaching that conclusion, the court was
heavily influenced by Dr. Saluke's testimony that she could not
recall Kristen's specific response to the explanation of the
need for the questioning. But, as we have stated above, a
court should not presume, as the court of appeals did, that the
statements are unreliable merely because there is no
indisputable evidence of the child's motivation. Rather, in a
case such as this, when an examination of the surrounding
circumstances casts little doubt on the motivation of the
child, it is permissible to assume that the factors underlying
Evid.R. 803(4) are present.7
"While in cases involving adults a cognitive connection
between speaking the truth to physicians and receiving proper
medical care may seem obvious, further analysis of the
circumstances surrounding the examination of a child is
necessary to determine whether the child understood the need to
be truthful to the physician." People v. Meeboer, supra, 439
Mich. at , N.W.2d at . We agree with this reasoning,
but stress that our holding in this case requiring this
specific examination of the circumstances applies only to
Evid.R. 803(4) and only to declarants of tender years.
We therefore hold that a trial court does not abuse its
discretion when it admits a child declarant's statements made
for the purpose of medical diagnosis or treatment pursuant to
Evid.R. 803(4), without first establishing the child
declarant's unavailability to testify. Once the statements are
admitted, their credibility is a matter to be evaluated by the
factfinder.
In applying our holding to the facts of this case, we find
that the trial court properly evaluated the circumstances
accompanying the making of the child's statements. Since there
is insufficient reason to doubt that the statements were made
for purposes of medical diagnosis or treatment, the trial court
did not abuse its discretion in finding that the statements
were admissible pursuant to Evid.R. 803(4). Neither Evid.R.
803(4) nor 102 requires exclusion of the child's statements
from the evidence, when as here the record supports the trial
court's determination that the requirements of Evid.R. 803(4)
were met.
B
We now proceed to specifically consider the propriety of
admitting a child's statement identifying the perpetrator of
her abuse under Evid.R. 803(4). Generally, statements of fault
are seen as outside the scope of Evid.R. 803(4) because such
statements are usually not relevant to either diagnosis or
treatment. See, e.g., United States v. Iron Shell (C.A. 8,
1980), 633 F.2d 77, 84. However, in United States v. Renville,
supra,
779 F.2d at 436-438, the leading case in this area, a
federal appellate court found that statements made by a child
identifying the perpetrator of the sexual abuse are pertinent
to both diagnosis and treatment of the child. The Renville
court made a distinction between statements of fault generally
(not admissible pursuant to the medical diagnosis or treatment
hearsay exception) and specific statements of identity by
children in sexual abuse cases (which the court found to be
admissible). The Renville court found several reasons why the
statement of identity is pertinent to treatment or diagnosis.
The statement assists the doctor in treating any actual
injuries the child may have, in preventing future abuse of the
child, and in assessing the emotional and psychological impact
of the abuse on the child.8
Id.
Boston, in considering the admissibility of a child's
statement identifying the perpetrator, stated that "Renville's
conclusion, however, rests on the underlying assumption that
the victim's motivation in identifying the abuser is to aid in
her treatment or diagnosis." Boston, 46 Ohio St.3d at 123,
545
N.E.2d at 1235. Thus, the Boston court was not required to
resolve the question, even though it did raise it. In so
doing, Boston did not reject Renville's analysis per se, but
found it inappropriate in the circumstances of that case.
In view of our modification of Boston, we adopt Renville's
reasoning, and hold that statements made by a child during a
medical examination identifying the perpetrator of sexual
abuse, if made for purpose of diagnosis and treatment, are
admissible pursuant to Evid.R. 803(4), when such statements are
made for the purposes enumerated in that rule. This means that
a child's statement identifying his or her abuser should be
treated the same as any other statement which is made for the
purposes set forth in Evid.R. 803(4). We thus find that the
trial court did not abuse its discretion in admitting Kristen's
statement identifying Dever as her abuser.
C
In order to avoid any confusion we note that Evid.R. 807,
effective July 1, 1991 and therefore not applicable here,
requires an examination of the totality of the circumstances
surrounding statements made by a child in a child abuse case in
order to determine admissibility. The test contained in
Evid.R. 807 has a purpose different from the test discussed
here. Evid.R. 807's "totality of the circumstances" test is
designed specifically with Confrontation Clause requirements in
mind. See Staff Note to Evid.R. 807. On the other hand, the
test under Evid.R. 803(4) goes solely to whether a statement
was made for purposes of medical diagnosis or treatment. If a
statement is made for purposes of diagnosis or treatment, it is
admissible pursuant to Evid.R. 803(4).
We also recognize that Evid.R. 807(A)(2) requires that a
trial court make a finding that "[t]he child's testimony is not
reasonably obtainable by the proponent of the statement" before
the child's statements may be admissible pursuant to that
exception. On the contrary, no finding of unavailability is
necessary when a statement is admitted pursuant to Evid.R.
803(4), because the rule itself provides that availability of
the declarant is immaterial.
The Staff Note to Evid.R. 807 states: "The rule
recognizes a hearsay exception for the statements of children
in abuse situations. This exception is in addition to the
exceptions enumerated in Evid.R. 803 and 804." (Emphasis
added.) Thus, the trial court in its discretion determines
which hearsay exception, if any, would most appropriately
support the admission of the child's statements into evidence.
III
Having thus found that the trial judge properly admitted
Kristen's statements, as related at trial by Dr. Saluke,
pursuant to Evid.R. 803(4), we now consider the impact of the
Confrontation Clause on this case.
In examining the Confrontation Clause issue, we must
consider several decisions by the United States Supreme Court
regarding the interplay between the hearsay rule and the
Confrontation Clause.
Although the hearsay rule (along with its exceptions) and
the Confrontation Clause protect similar values, the United
States Supreme Court has repeatedly noted that the two are not
coextensive. See California v. Green (1970), 399 U.S. 149,
155-156,
90 S.Ct. 1930, 1933-1934,
26 L.Ed.2d 489, 495; Dutton
v. Evans (1970),
400 U.S. 74, 86,
91 S.Ct. 210, 218,
27 L.Ed.2d
213, 225-226. Thus, in some situations, even if evidence is
admissible at trial as a hearsay exception, that evidence may
nonetheless be inadmissible because it violates a defendant's
right of confrontation. The United States Supreme Court has
provided a framework in which to analyze how the Confrontation
Clause affects a particular hearsay exception.
A
In Ohio v. Roberts (1980), 448 U.S. 56, 65,
100 S.Ct.
2531, 2538,
65 L.Ed.2d 597, 607, the United States Supreme
Court set forth a general approach for accommodating the
sometimes competing interests of the Confrontation Clause and
the hearsay exceptions. The court stated that the
Confrontation Clause "operates in two separate ways to restrict
the range of admissible hearsay. First, in conformance with
the Framers' preference for face-to-face accusation, the Sixth
Amendment establishes a rule of necessity."
Id. In a holding
which the court substantially narrowed in later cases, see
infra, Roberts stated that the prosecution must make a good
faith effort to produce the declarant, or demonstrate the
declarant's unavailability.
Id. The declarant's statement
should then be admitted "only if it bears adequate 'indicia of
reliability.' Reliability can be inferred without more in a
case where the evidence falls within a firmly rooted hearsay
exception. In other cases, the evidence must be excluded, at
least absent a showing of particularized guarantees of
trustworthiness." (Footnote omitted.)
Id. at 66,
100 S.Ct. at
2539,
65 L.Ed.2d at 608.
In United States v. Inadi (1986), 475 U.S. 387,
106 S.Ct.
1121,
89 L.Ed.2d 390, the Supreme Court considered whether the
Confrontation Clause requires the prosecution to show that a
co-conspirator is unavailable to testify before the
co-conspirator's statements may be admitted into evidence. The
court held that the prosecution was not required to establish
unavailability in that situation, and that this specific
requirement of Roberts applies only where the prosecution seeks
to admit testimony from a prior judicial proceeding instead of
live testimony. Inadi,
475 U.S. at 392-394,
106 S.Ct. at
1124-1126,
89 L.Ed.2d at 396-398. The court stated that
Roberts "cannot fairly be read to stand for the radical
proposition that no out-of-court statement can be introduced by
the government without a showing that the declarant is
unavailable."
Id. at 394,
106 S.Ct. at 1125,
89 L.Ed.2d at
398. The court also noted that the true mission of the
Confrontation Clause is to "'advance "the accuracy of the
truth-determining process in criminal trials."'"
Id. at 396,
106 S.Ct. at 1126,
89 L.Ed.2d at 399, quoting Tennessee v.
Street (1985),
471 U.S. 409, 415,
105 S.Ct. 2078, 2082,
85
L.Ed.2d 425, 432.
The Supreme Court again considered the admissibility of
statements made by a co-conspirator in Bourjaily v. United
States (1987), 483 U.S. 171,
107 S.Ct. 2775,
97 L.Ed.2d 144.
The court observed that the hearsay exception for statements of
a co-conspirator is firmly rooted.
Id. at 183,
107 S.Ct. at
2782,
97 L.Ed. 2d at 157. For that reason, the Supreme Court
held that a co-conspirator's statements carry with them
sufficient "indicia of reliability" and therefore a court need
not conduct an independent inquiry into the reliability of the
statements.
Id.
B
While the foregoing cases set forth a general method of
applying Confrontation Clause analysis when the declarant does
not testify at trial, two recent Supreme Court decisions
considered the interaction of the Confrontation Clause with
hearsay exceptions in circumstances involving sexual abuse of
young children. In Idaho v. Wright (1990), 497 U.S. 805,
110
S.Ct. 3139,
111 L.Ed.2d 638, the court considered whether a
trial court properly admitted a hearsay statement made by a
child pursuant to Idaho's "residual hearsay exception."9 The
court began its analysis by noting that "Idaho's residual
hearsay exception, … under which the challenged statements
were admitted, … is not a firmly rooted hearsay exception
for Confrontation Clause purposes."
Id. at ,
110 S.Ct. at
3147,
111 L.Ed.2d at 653. For that reason, Roberts requires
that the hearsay testimony be inadmissible unless
"particularized guarantees of trustworthiness" are present.
The court did not believe that the child's statement was
particularly trustworthy,10 and therefore found that the state
had failed to carry its burden of demonstrating "particularized
guarantees of trustworthiness" in the totality of the
circumstances.11
The Wright court made clear that its analysis would have
been completely different if the hearsay exception had been
"firmly rooted": "Admission under a firmly rooted hearsay
exception satisfies the constitutional requirement of
reliability because of the weight accorded longstanding
judicial and legislative experience in assessing the
trustworthiness of certain types of out-of-court statements."
Id. at ,
110 S.Ct. at 3147,
111 L.Ed.2d at 653.
In White v. Illinois, supra, 502 U.S. ,
112 S.Ct. 736,
116 L.Ed.2d 848, the Supreme Court again considered the use of
hearsay statements made by a child against a defendant being
prosecuted for sexual assault of the child. The trial court
allowed the hearsay statements into evidence as spontaneous
declarations and also as statements made in the course of
medical treatment. The appellate court affirmed that decision,
finding that the accused's right of confrontation was not
denied. Although the four-year-old girl did not testify at
trial, no specific finding of unavailability was made by the
trial court.
The White court began its analysis by limiting the
application of the unavailability requirement of Roberts,
stating that "Roberts stands for the proposition that
unavailability analysis is a necessary part of the
Confrontation Clause inquiry only when the challenged
out-of-court statements were made in the course of a prior
judicial proceeding." (Emphasis added.) White, supra, 502
U.S. at ,
112 S.Ct. at 741,
116 L.Ed.2d at 858. Thus,
unavailability of the declarant need not be demonstrated when a
hearsay statement is admitted pursuant to an Evid.R. 803
exception.
In agreeing that there was no denial of the defendant's
right of confrontation, the Supreme Court held that "where
proffered hearsay has sufficient guarantees of reliability to
come within a firmly rooted exception to the hearsay rule, the
Confrontation Clause is satisfied." Id. at ,
112 S.Ct. at
743,
116 L.Ed.2d at 859. The court noted that such firmly
rooted hearsay exceptions as spontaneous declarations and
statements made in the course of receiving medical care are
recognized as normally occurring in contexts that provide
substantial guarantees of trustworthiness.
Id. at ,
112
S.Ct. at 742,
116 L.Ed.2d at 859. For that reason, the
Confrontation Clause is automatically satisfied by a hearsay
exception which is firmly rooted -- the presence of
"particularized guarantees of trustworthiness" need not be
shown.
Id. at ,
112 S.Ct. at 742-743,
116 L.Ed.2d at
859-860.
Consistent with that approach, we determine that Evid. R.
803(4) is a firmly rooted hearsay exception in the
circumstances of the case before us. See White, supra, at ,
112 S.Ct. at 742,
116 L.Ed.2d at 859, fn. 8. To the extent
that Boston indicates a contrary result, we clarify that
opinion.
C
In summary, Wright and White hold that, even in cases
involving hearsay statements of children in the prosecution of
the children's alleged abusers, if the hearsay statement at
issue falls within a firmly rooted hearsay exception, as in the
instant case, its admission does not violate the defendant's
right of confrontation. White, supra, at ,
112 S.Ct. at
743,
116 L.Ed.2d at 859;
Wright, supra, at ,
110 S.Ct. at
3146,
111 L.Ed.2d at 652. In such a case, the prosecution is
not required to demonstrate the unavailability of the
declarant.
White, supra, at ,
112 S.Ct. at 741,
116 L.Ed.2d
at 858.
On the other hand, if the hearsay statement at issue does
not fall within a firmly rooted hearsay exception, further
inquiry is required. Hearsay not falling within a firmly
rooted exception must be excluded unless "particularized
guarantees of trustworthiness" can be shown. Wright, supra,
at ,
110 S.Ct. at 3147,
111 L.Ed.2d at 653.
In the instant case, Kristen's hearsay statements were
admitted under a firmly rooted hearsay exception. Therefore,
Dever's right of confrontation was not denied.
Our interpretation of White and Wright comports with the
interpretation of other courts. For example, in Dana v. Dept.
of Corr. (C.A. 8, 1992), 958 F.2d 237, the court found that a
four-year-old child's hearsay statements to a pediatrician fell
within the medical diagnosis and treatment hearsay exception.
The court, citing White, concluded that, because this exception
is firmly rooted, the reliability of the statements could be
inferred and the admission of the statements into evidence did
not violate the Confrontation Clause.
Id. at 239. See, also,
United States v. George (C.A. 9, 1992),
960 F.2d 97, 99 ("When
hearsay testimony is properly admitted pursuant to [the medical
treatment] exception, no further guarantees of trustworthiness
are required."); United States v. Balfany (C.A. 8, 1992),
F.2d , 1992 WL 97006 (Confrontation Clause does not preclude
admission of child's out-of court statements under firmly
rooted hearsay exception for medical treatment).
We hold that Evid.R. 102 does not prevent us from finding
that the Evid.R. 803(4) hearsay exception is firmly rooted in
the circumstances of this case. The admission into evidence of
a hearsay statement pursuant to a firmly rooted hearsay
exception does not violate a defendant's right of confrontation.
Conclusion
In conclusion, we find that the hearsay statements made by
Kristen to Dr. Saluke were properly admitted into evidence
pursuant to Evid.R. 803(4). Additionally, we find that
Kristen's statement to Dr. Saluke identifying Dever as the
perpetrator of the abuse was properly admitted into evidence
pursuant to Evid.R. 803(4). We further find that Dever's right
of confrontation was not violated by the admission of these
statements. For all the foregoing reasons, we reverse the
judgment of the court of appeals and reinstate Dever's
conviction.
Judgment reversed.
Moyer, C.J., Holmes, Douglas and H. Brown, JJ., concur.
Sweeney and Wright, JJ., dissent.
FOOTNOTES:
1 Evid.R. 803 reads:
"The following are 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 The Confrontation Clause of the Sixth Amendment to the
United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the
right … to be confronted with the witnesses against him
…."
The Confrontation Clause of the Sixth Amendment is made
applicable to the states by the Fourteenth Amendment to the
United States Constitution. Pointer v. Texas (1965), 380 U.S.
400, 406,
85 S.Ct. 1065, 1069,
13 L.Ed.2d 923, 928.
3 The court of appeals later recharacterized the
determination of "incompetency" to testify as one of
"unavailability" to testify, and the Supreme Court of Ohio, in
Boston, accepted that conclusion.
Id.,
46 Ohio St.3d at 115,
545 N.E.2d at 1228.
4 Among the many issues discussed in Boston which either are
not relevant to the instant case, or will not be revisited,
are: (1) a child's competency to testify as a witness and
Evid.R. 601(A); (2) unavailability of a child witness and
Evid.R. 804(A)(2); (3) the admissibility of excited utterances
under Evid.R. 803(2) in child abuse prosecutions; (4) the use
of expert testimony in child abuse cases, Evid.R. 702, 703,
704, and 705; (5) whether a statement by a child to someone
other than a medical doctor can be admissible under Evid.R.
803(4), the medical diagnosis or treatment exception; (6) the
application of Evid.R. 801(D)(1)(c), allowing prior statements
by a witness into evidence as non-hearsay if the declarant also
testifies at trial; and (7) whether it is proper for an expert
witness to give an opinion of the veracity of the child's
hearsay statements.
The resolution of the last issue above was the basis for
the reversal of the conviction. The syllabus law announced in
Boston reads: "An expert may not testify as to the expert's
opinion of the veracity of the statements of a child declarant."
We recognize a need for further clarification of some of
these issues. However, we will confine our consideration to
those issues pertinent to the case before us; the other issues
must await another day.
5 Boston specifically called on the legislature to address
the special problems presented by the hearsay statements of
children in abuse cases. Id.,
46 Ohio St.3d at 115,
545 N.E.2d
at 1228. Evid.R. 807 was subsequently adopted, effective July
1, 1991.
6 Perhaps the time has come to reevaluate Ohio's Evid.R. 102
as it now exists. While federal courts and courts of most
states allow evolutionary development of the law of evidence,
Ohio courts are required to apply the common law to evidence
rules which are almost certainly inconsistent in spirit, if not
in literal wording, with many of the common-law foundations.
An amendment of Evid.R. 102, to put it in step with Fed.R.Evid.
102, is an idea whose time has come. The drafters of Ohio's
Evidence Rules feared dire consequences if Ohio adopted an
Evid.R. 102 identical to the federal version. See Walinski &
Abramoff, The Proposed Ohio Rules of Evidence: The Case
Against (1978), 28 Case W.Res.L.Rev. 344, 370 (arguing that
Ohio's then-proposed Evid.R. 102, to be identical to
Fed.R.Evid. 102, constituted a "disturbing feature" of the
evidence rules). Ohio Evid.R. 102 was altered in response to
such criticism, but the perceived horrors associated with the
federal counterpart have not materialized.
7 In a dissenting opinion filed in the court of appeals, the
judge stated that the hearsay statements were properly
admissible under Evid.R. 803(4): "… [I]t is entirely
reasonable to infer, as the trial court could have reasonably
inferred under all the circumstances, that the child had the
awareness and understanding necessary to grasp that the purpose
of responding to the doctor's questions was to obtain diagnosis
and treatment as a result of the molestation. We should not
reverse the trial court's judgment without a more affirmative
demonstration that an error of law, and not merely a finding of
fact which happens to vary from the majority's view of the
facts, was made below."
8 We approve of Renville's analysis regarding the child's
identification of the perpetrator in sexual abuse prosecutions
involving young children. There are several reasons for
finding that the identification of the perpetrator is relevant
to diagnosis and treatment. As Dr. Saluke testified at trial
in this case, questioning of the allegedly abused child is
important in determining the extent of contact, if any, the
possibility of continued exposure to the perpetrator, and the
possibility of sexually transmitted diseases. The identity of
the perpetrator is particularly relevant to those inquiries, as
well as to the psychological effects on the child.
9 The issue of unavailibility of the declarant was not
before the Supreme Court. The court assumed that the declarant
was an unavailable witness, primarily because the trial court
had found that the child was incapable of communicating with
the jury, and defense counsel at trial did not disagree with
that finding.
Id. at ,
110 S.Ct. at 3147,
111 L.Ed.2d at
652.
10 The court noted that the questioning of the child was
conducted in a suggestive manner, raising concerns about the
reliability of the statement.
Wright, supra, at ,
110 S.Ct.
at 3152-3153,
111 L.Ed.2d at 659-660.
11 The court specifically held that corroboration of the
statement by other evidence was not a part of the
trustworthiness inquiry.
Id. at ,
110 S.Ct. at 3148-3149,
111 L.Ed. 2d at 655. That holding means that one of the
factors announced in State v. Boston for analyzing
trustworthiness of a child's hearsay statement, corroboration,
is no longer valid.
Id.,
46 Ohio St.3d at 127,
545 N.E.2d at
1238. Because this case does not require us to consider
whether "particularized guarantees of trustworthiness" are
present (we find that the child's statements were admissible as
an Evid.R. 803[4] exception to the hearsay rule, a firmly
rooted hearsay exception), we do not resolve that problem at
this time.
Wright, J., dissenting. I simply cannot join in the
majority's decision to ignore this court's prior decisions and
to rewrite Evid.R. 803(4). The hearsay exception for
statements pertinent to medical treatment or diagnosis "…
is based upon the belief that the declarant's subjective motive
generally guarantees the statement's trustworthiness. Since
the effectiveness of the treatment depends upon the accuracy of
information given to the physician, the declarant is motivated
to tell the truth." State v. Eastham (1988), 39 Ohio St.3d
307, 312,
530 N.E.2d 409, 413 (H. Brown, J., concurring). If a
child is not capable of comprehending the doctor's role and the
danger of mistreatment, his or her statements cannot be
presumed to be reliable, at least under this particular hearsay
exception.12 See United States v. Renville (C.A.8, 1985),
779
F.2d 430, 439; United States v. Iron Shell (C.A.8, 1980),
633
F.2d 77, 83-84; Cassidy v. Maryland (1988),
74 Md.App. 1,
29-30,
536 A.2d 666, 680. Until today, this court has, and
rightfully so, refused to follow other jurisdictions that have
dispensed with the requirement that a child understand that his
or her statements are for the purpose of medical treatment or
diagnosis. See State v. Boston (1989),
46 Ohio St.3d 108, 122,
545 N.E.2d 1220, 1234.
I fully sympathize with the pain and anguish suffered by
abused children and their families, and understand the
difficulties inherent to the prosecution of a terrible crime
that may leave no physical evidence and whose victims are
unable to competently speak for themselves. The temptation is
great to liberally construe the hearsay exceptions to allow
more effective prosecution of these crimes. We must remember,
however, that our ruling on the scope of this hearsay exception
will apply with equal force to cases in which the evidence is
overwhelming and to cases in which a doctor's statements are
the only evidence that supports a conviction. If one imagines
an innocent man or woman accused of this heinous crime, today's
ruling evokes grave concern.
The majority's decision not only allows the child to speak
through the mouths of others in a situation where the child
cannot be questioned, but also gives the child's words the
extra authority of being spoken by a doctor. Moreover, the
testimony does not possess the traditional guarantees of
reliability that form the basis for this particular hearsay
exception. Evid.R. 102 mandates that this court construe the
Ohio Rules of Evidence in accordance with the common-law basis
for those rules. It is not the province of this court to
eviscerate those rules in order to make it easier for the state
to prosecute certain categories of crime.
Most importantly, this decision seriously undermines
Evid.R. 807, which went into effect July 1, 1991. Evid.R. 807
was promulgated in recognition of the unique evidentiary
problems raised in a child sexual-abuse case and sets forth a
separate hearsay exception for the testimony of a sexually
abused child. As the majority properly recognizes, Evid.R. 807
provides a hearsay exception that is in addition to the
exceptions provided in Evid.R. 803 and 804. See Staff Note to
Evid.R. 807. The majority's liberal interpretation of Evid.R.
803(4) will actually allow prosecutors to evade the carefully
considered controls of Evid.R. 807. Under today's decision, it
appears that the child's testimony to a doctor will be
admissible under Evid.R. 803(4), unless the defense can show
the child was unduly influenced or some other special reason
why the testimony is unreliable. Under Evid.R. 807, the
doctor's testimony is not admissible unless the trial court
carefully determines that the child is not able to testify,
examines the totality of circumstances surrounding the
statement when it was made to determine whether the statement
is reliable and finds that there is independent proof of the
sexual act. I believe that Evid.R. 807 strikes the appropriate
balance between the needs of the child, the rights of the
defendant, and the state's interest in prosecuting this crime,
and I am saddened to see the rule stripped of its effectiveness
so prematurely.
I agree with the court of appeals that this case should be
remanded to the trial court. An advanced four-year-old might
have the required level of understanding,13 but because the
trial judge ruled that this child's awareness of the need for
medical treatment was irrelevant to the admissibility of her
statements, the trial record was not developed on this factual
question. Accordingly, I would affirm the well-reasoned
judgment of the court of appeals.
Sweeney, J., concurs in the foregoing dissenting opinion.
FOOTNOTES:
12 The majority conveniently characterizes the
motivational requirement of Evid.R. 803(4) as a strict
requirement that the child be motivated to go to the doctor for
treatment. This cramped interpretation strengthens the
majority's argument that this requirement is unnecessarily
stringent. While the strict foundation discussed by the
majority is unnecessary, I do not believe that it is
unreasonable to require that a child understand the doctor's
role and why it is important to tell the doctor the truth.
13 Compare United States v. Renville (C.A.8, 1985), 779
F.2d 430, 439 (evidence showed that eleven-year-old child
understood the need for treatment); United States v. Iron
Shell (C.A.8, 1980),
633 F.2d 77, 83-84 (nine-year-old child
could understand the importance of the correct treatment); and
Cassidy v. Maryland (1988),
74 Md.App. 1, 30,
536 A.2d 666, 680
(two year old does not have sufficient awareness to satisfy the
rule).
