United States v. Siroky

DIXON, Chief Judge

(dissenting in part and concurring in part):

I cannot agree that the military judge abused his discretion in admitting the statements of Ms. Clifton, a child therapist, under Mil.R.Evid. 803(4). In my view, there was a factual basis for the military judge to infer that J made the statements to Ms. Clifton with an expectation of promoting her well-being. United States v. Quigley, 40 M.J. 64 (C.M.A.1994). The military judge was aware that J had multiple therapy sessions with Ms. Clifton. During these sessions, J progressed from a frightened, troubled little girl who was very “hyper vigilant” to someone who was later described as one who “enjoys therapy,” “did not want to leave therapy,” “asks to come to therapy” and “cries when time to leave therapy.” This remarkable progression convinces me J clearly expected to promote her well-being during her visits with Ms. Clifton. I submit the military judge’s ruling was consistent with those cases which hold there may be some relaxing of the quan*715turn of proof necessary to admit statements under the “medical exception” when small children are being treated. United States v. Williamson, 26 M.J. 115 (C.M.A.1988); United States v. Lingle, 27 M.J. 704 (A.F.C.M.R.1988).

I cannot concur with the majority's conclusion that to admit these statements under the “medical exception” would relax the standard “to such a degree that there is no standard at all.” Here, there is considerable evidence from which the military judge could infer that J had an expectation of benefit from interacting with her therapist. In addition to the documented evidence of changes in J’s attitude during the sessions, Ms. Clifton testified she told J during their initial session “we’re here to talk about your feelings and to help you.” There is evidence that J had previously received medical treatment, there was testimony that Ms. Clifton had been addressed as “doctor” by J’s mother while J was present, and there are clear indications that, as the therapy sessions progressed, J viewed Ms. Clifton as someone she could trust.

In my opinion, the real question here is not whether the military judge abused his discretion (by being clearly erroneous) but rather whether this Court is satisfied that the factual requirements of the “medical exception” have been met. Whether there is sufficient evidence to establish the existence of an actual expectation of receiving medical treatment on the part of an out-of-court declarant is a factual determination. Quigley at 66. I have no doubt that a majority of this Court may reverse a military judge on this factual determination. Article 66(c), UCMJ. My concern is, that in doing so here, we may appear to be departing from precedent which requires only a minimal showing of expectation of benefit when children are being treated. See, United States v. Edens, 31 M.J. 267 (C.M.A.1990); United States v. Dean, 31 M.J. 196 (C.M.A.1990); United States v. Ureta, 41 M.J. 571 (A.F.Ct.Crim.App.1994).

Senior Judges SNYDER, RAICHLE, and YOUNG did not participate.