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10/14/96 STATE TENNESSEE v. CARL LEE MCLEOD

October 14, 1996

STATE OF TENNESSEE, APPELLEE
v.
CARL LEE MCLEOD, APPELLANT; STATE OF TENNESSEE, APPELLEE V. JAMES YOUNG, APPELLANT



Criminal Court. Davidson County. Hon. Walter C. Kurtz, Judge. Circuit Court. Maury County. Hon. Jim T. Hamilton, Judge.

Adolpho A. Birch, Jr., Chief Justice, Concur: Drowota, Anderson, Reid, White, JJ.

The opinion of the court was delivered by: Birch

BIRCH, C.J.

This consolidated appeal centers our attention on the broad, growing problem in child abuse cases of the admissibility of statements made by children during the course of a medical examination. The precise difficulty arises in attempting to apply evidentiary rules drafted with adults in mind to cases involving children. Problems notwithstanding, we must achieve a balance that fosters the important governmental interest in protecting children while maintaining fundamental fairness.

In each case before us, the trial court, pursuant to Tenn. R. Evid. 803(4), permitted a physician to testify concerning out-of-court statements made by a child-declarant. At issue is whether each trial court erred in admitting the respective statements. We consolidated the cases and granted review in order to clarify the criteria for determining, in cases involving allegedly abused child-declarants, whether a statement qualifies for admission into evidence under the exception to the hearsay rule as provided in Rule 803(4).

For the reasons discussed below, we hold today that in order to determine the admissibility under Rule 803(4) of a statement made by a child-declarant, the trial court shall conduct an evidentiary hearing outside the jury's presence. After considering all of the relevant evidence offered pertaining to the making of the statement, the trial Judge shall admit the statement into evidence upon an affirmative finding that the conditions described in the rule have been satisfied.

I

Statements made for the purpose of medical diagnosis and treatment are admissible as an exception to the hearsay rule under Tenn. R. Evid. 803(4). The exception provides:

Statements made for purposes of medical diagnosis and treatment describing medical history; 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 and treatment. *fn1

The language of Rule 803(4) sets forth the requirements to be met before such statements may be admitted under this exception. First, the statement must have been made for the purpose of medical diagnosis and treatment, describing the medical history, which includes past or present symptoms, pain, or sensations; or, second, if the statement addresses the inception or general character of the cause or external source of the problem, then the information in the statement must be reasonably pertinent to diagnosis and treatment. *fn2

Rule 803(4) is based upon the notion that statements made under conditions prescribed by the rule are presumptively trustworthy. Courts have reasoned that patients seeking medical assistance are strongly motivated to be truthful because accurate diagnosis and effective treatment often depend, in part, upon what patients tell health care providers. United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985); United States v. Iron Shell, 633 F.2d 77, 84 (1980). "Thus[,] the declarant has a self-interested motive to tell the truth." State v. Barone, 852 S.W.2d 216, 220 (Tenn. 1993) (citing Neil P. Cohen et al., Tennessee Law of Evidence § 803(4).1 at 425 (2d ed. 1990)). Moreover, if physicians or other medical personnel rely upon the statement in diagnosing and treating the patient, then the statement should be sufficiently trustworthy to be admissible in a court of law. Id. at 220; State v. Edwards, 868 S.W.2d 682, 699 (Tenn. Crim. App. 1993). The patient's strong motivation to be truthful constitutes the basis for similar evidentiary rules in other jurisdictions as we will discuss below.

This rationale, however, becomes questionable when the patient is a child because children may not be able to understand the need to be truthful in the medical setting. Nevertheless, courts must adhere to the evidentiary rules to ensure, to the extent possible, that only those out-of-court statements which satisfy the requirements of the rule are admitted into evidence.

For guidance on this issue, we turn to other jurisdictions to consider their treatment of Rule 803(4) in cases involving statements made by a child to medical personnel. *fn3 Some jurisdictions require the child-declarant to show knowledge of the motive for the treatment. See, e.g., United States v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993) (requiring "evidence that the child understood the physician's role in order to trigger the motivation to provide truthful information"); Ring v. Erickson, 983 F.2d 818, 820 n.2 (8th Cir. 1993) (finding that three-year-old victim who did not know she was talking to physician did not have the "selfish motive" to tell the truth; the court indicated, however, that if there had been some other indicia of reliability, the statements may have been admissible); State v. Maldonado, 13 Conn. App. 368, 536 A.2d 600, 602-03 (Conn. App. Ct. 1988) (holding statement admissible where security guard enlisted to translate statement of three-year-old declarant told child he was questioning her to aid in doctor's treatment); State v. Jones, 625 So. 2d 821, 823-24 (Fla. 1993) (requiring some evidence that declarant was motivated to speak the truth for purposes of obtaining medical treatment); Johnson v. State, 666 So. 2d 784, 795 (Miss. 1995) (requiring affirmative finding that declarant's motive in making statement was consistent with purpose of promoting treatment).

Other jurisdictions require that the declarant have a motive for making the statement surrounding the treatment but allow such motive to be inferred or presumed. See, e.g., United States v. Iron Shell, 633 F.2d 77, 84 (1980) (holding that nothing in the content of the statements suggested that declarant was responding to the doctor's questions for any reason other than promoting treatment), cert. denied, 450 U.S. 1001, 68 L. Ed. 2d 203, 101 S. Ct. 1709 (1981); Dana v. Department of Corrections, 958 F.2d 237, 239 (8th Cir.) (despite lack of direct evidence on the issue of declarant's motivation in giving statements, court considered declarant's age, lack of inconsistencies, and graphic descriptions of abuse as weighing in favor of trustworthiness of statements), cert. denied, 505 U.S. 1225, ...


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