Franklin Circuit Court
Questions Presented: Family Law. Abuse or Neglect. Admissibility of Hearsay. Consideration of the admissibility of statements of a child victim to a therapist or physician while in treatment, and whether competency of the child victim is a prerequisite to the admissibility of the hearsay statements.
At issue in this case was (1) whether statements of a child to a treating therapist regarding alleged abuse constitute inadmissible hearsay; (2) whether statements of a child to a treating therapist regarding the alleged perpetrator of abuse constitute admissible hearsay; and (3) whether the trial court erred by failing to give more consideration to “no true bills” rendered by grand juries against Father.
The Supreme Court of Kentucky held that, under KRE 803(4), out-of-court statements detailing abuse, behavior, and feelings to a treating therapist that are essential for diagnosis and treatment are properly admissible. KRE 803(4) provides for the admissibility of “[s]tatements made for purposes of medical treatment or diagnosis 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 treatment or diagnosis.” Here, the child and mother described the abuse and behavioral problems which ultimately led to a diagnosis of PTSD for the child and the development of a treatment plan. Under the plain terms of KRE 803(4), the out-of-court statements of the child detailing her abuse, behavior, and feelings were properly admitted.
The Supreme Court held that the identification of an alleged perpetrator of abuse are not properly admissible under KRE 803(4). “[W]e no longer recognize a special exception to the hearsay rule which allows medical providers to testify in court to the hearsay statements of a victim of sexual offenses which identify the alleged perpetrator because that identification is not pertinent to the medical treatment being provided.” Colvard v. Commonwealth, 309 S.W.3d 239, 247 (Ky. 2010) (overruling Edwards v. Commonwealth, 833 S.W.2d 842 (Ky. 1992). Hearsay statements identifying an alleged abuser must meet a two-prong test: (1) the declarant’s motive in making the statement must be consistent with the purpose of promoting treatment; and (2) the content of the statement must be such as is reasonably relied upon by a physician in treatment or diagnosis.
The first prong of this test is premised on the notion that a declarant seeking treatment has a selfish motive to be truthful because the effectiveness of medical treatment depends upon the accuracy of the information provided. Here, the child was only 4 when giving the account of what happened. The record is devoid of any evidence that it was the child who identified the father as her abuser for the selfish motive of giving a truthful account for the purpose of promoting treatment.
Regarding the second prong, Colvard stated that “[W]e failed to recognize that it is the patient’s desire for treatment, not the doctor’s duty to treat, that gives credibility to the patient’s out-of-court statement.” Identification of the perpetrator is not necessary for treatment.
Charges of rape and abuse were brought on three occasions against the father. Each time, the grand jury returned a no true bill. Although admitted, the trial court gave very little weight to the no true bills. The father contended that they should have been given more weight by the trial court. The Supreme Court held that the determination of the weight and credibility of the evidence is within the trial court’s discretion, reviewed for an abuse of discretion. The trial court gave the weight it saw fit because the trial court could not be made aware of what had transpired at the grand jury proceedings. The trial court did not abuse its discretion.
Digested by Nathan R. Hardymon