He Said, She Said: Admission of Hearsay Statements Regarding Child Sexual Abuse in Custody Cases: Part 3 of 12 PartsBy: Jennifer Crissman, Attorney, Woodruff Family Law Group
As we discussed in Part 2 of our series, family law attorneys practicing in Guilford and surrounding counties have difficulty when trying to admit hearsay statements regarding alleged sexual abuse in custody cases. While there may be several ways to have these hearsay statements admitted, it is crucial the attorney determines the most viable hearsay exception that can be applied. In situations where a child has given statements to several professionals at a Children’s Advocacy Center, it can be frustrating as there is a dearth of case law on statements given at Children’s Advocacy Centers. However, a recent case from the N.C. Court of Appeals that is particularly helpful is State v. McLaughlin, No. COA15-333.
In McLaughlin, the child declarant, age 15, was unavailable to testify as the child committed suicide. The child had been exposed to sexual abuse from the age of 9 until age 15. The state sought to admit the child’s recorded statements to a registered nurse at a Children’s Advocacy Center, or CAC for short. The child had an appointment at the CAC, which was to include a medical interview and medical evaluation. The child first met with a registered nurse who conducted the medical interview portion of the visit which was videotaped.
The registered nurse explained to the child he was coming in for a checkup, asked the child questions regarding his health history, whether he had any health issues, took medicine, or had any hospitalizations, broken bones or scars. The nurse also explained that the doctor needed to know everything that happened from beginning to end to ensure that the child did not have any diseases or other issues which could affect the child for life. While the statements were relayed initially to the nurse, these facts were ultimately given to the doctor who determined the final medical diagnosis. The defendant in McLaughlin complained that the statements by the nurse regarding the importance of telling the truth were not related to medical diagnosis or treatment and so the child’s statements should have been excluded.
The Court in McLaughlin provides very helpful language regarding the statements given at Children’s Advocacy Centers. Although there is an interrelationship between the CAC and law enforcement, the court notes that this does not detract from the Center’s primary purpose which is to promote the health and well-being of the child victim.
Mclaughlin also gives further guidance on statements admissible under 803(4). The court looks not only at the age of the child in determining the purpose for which the statements were made, but also at the surrounding circumstances. The court found that statements which may not have been directly related to the medical diagnosis were crucial for establishing a rapport with the child. Also, the court found that having the child relate details about the history of the sexual assault from beginning to end was beneficial to the medical practitioners in determining the extent of mental and physical trauma to which the child was exposed.
Applying this language to our fact pattern, the attorney may be able to get in statements that are not directly related to the ultimate medical diagnosis but give the medical practitioners a better understanding of the duration and extent of not only the sexual abuse, but also any psychological trauma. For instance, repeated threats made by the Uncle to Aaron or Billy may not have been related to the physical sexual assault, but they do help the CAC determine the psychological trauma experienced by the children.
In installment number 4, we will discuss the case of State v. Hinnant. This is a case that further explores the intent of the child declarant when making a statement for the purpose of medical diagnosis or treatment, an issue that is quite contentious.
He Said, She Said Series