State v. Bellotti

¶1(concurring specially).

¶2I concur in the analysis of this case by the majority. However, it is my opinion that the law of the case requires further judicial and legislative review. Several determinations made here involve critical conflict between fundamental liberties of the accused and a systematized pattern of proof of facts in child abuse cases.

¶3The most pronounced problem in the case has to do with evidence about medical interviews.1 When diagnosis is primarily an assessment of medical history, it is nearly impossible to distinguish medical conclusions from judgments that substitute for those of the jury or other legal fact finder. The problem was highlighted here by the improper testimony of Dr. Levitt. The prosecutor asked the doctor if she had determined “a medical diagnosis” regarding T.C., and the doctor responded by stating her feeling that T.C. “had been truthful in her statements” and had been abused. Whether or not the problem so graphically unfolds, it is there — the diagnosis is an assessment of truthfulness.

¶4This is not an isolated medical evidence issue. Given the legal significance of the medical “diagnosis,” there is established inevitably a deliberate pattern to enhance testimony by having it observed, recited, and accredited by a medical doctor.

¶5The use of hearsay evidence offered through two other interviewers, a police sergeant and a social worker, is similarly troublesome. The process involves judicial scrutiny of reliability, which was done with painstaking care by the trial judge here. Nevertheless, the interview practice becomes increasingly commonplace, and in every case it poses a danger of substituting the impressions and recollections of interviewers for the fact finding of a jury.

¶6As the majority concludes, the trial here was fair. More to the point, it was as fair as could occur under standards of procedure currently in force. Those standards need further attention because of the risk of injustice demonstrated in this case and others.

¶7The issues discussed here specifically invite attention to one prospective change of process. Interviews of victims by police, social workers, and doctors are by now a *318systematized part of abuse case investigations. As such, the interview practice could be uniformly regulated. It may be feasible, for example, to require that interviews be filmed. When hearsay evidence is otherwise admissible, this practice would give the fact finder much greater opportunity to assess the evidence. It would also enhance the ability of the trial judge to determine whether there are adequate indications the hearsay evidence is reliable and admissible.