United States v. White

EVERETT, Chief Judge

(concurring):

Mil.R.Evid. 803(4) recognizes an exception to the hearsay rule for “[sjtatements made for purposes of medical diagnosis or treatment.” However, in order to assure trustworthiness, the statements must have been motivated primarily by the desire to obtain a medical benefit. United States v. Deland, 22 M.J. 70 (C.M.A.), cert. denied, — U.S. —, 107 S.Ct. 196, 93 L.Ed.2d 128 (1986). In this case, the record contains substantial evidence tending to show that, shortly before appellant’s trial, the two children made their statements to Dr. Cravens, the psychologist, because their mother had led them to believe that, if they failed to do so, they would not receive Easter presents. If this were the primary motivation for their telling Dr. Cravens about the alleged incidents of child abuse, those statements should have been excluded. However, the capable military judge who tried the case and had the benefit of observing the child witnesses was satisfied by other evidence that the children were seeking help from Dr. Cravens “with problems that they clearly perceived and which, to the girls, were clearly troublesome.” In light of his finding — which was left undisturbed by the Court of Military Review— the requirements of Mil.R.Evid. 803(4) were fulfilled.

In this, as in other child-abuse cases, I am concerned that the factfinder may attach undue weight to an expert’s evaluation of a witness’ credibility. However, here that danger is much less because the two children both testified on the merits and so were subject to cross-examination by the defense and to observation by the military judge and the court members. Cf. United States v. LeMere, 22 M.J. 61 (C.M.A.1986). Taking into account this and the other matters discussed in the majority opinion, I am sure that appellant’s trial was free of prejudicial error.