State v. JCE

7'0. 97-535

IN THE STJPREME COURT OF THE STATE OF MONTANA

1988

STATE O F MONTANA,

P l a i n t i f f and A p p e l l a n t ,
-vs-

Defendant and Respondent.

APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County O F Lewis & C l a r k ,
The Honorable Thomas H o n z e l , J u d q e p r e s i d i n q .

COTJNSEL O F RECORD :

For Appellant:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Dorothy M c C a r t e r a r g u e d , A s s t . A t t v . G e n e r a l , Helena
Mike McGrath, C o u n t y A t t o r n e v , H e l e n a , Montana
C a r o l ~ r nA Clemens a r q u e d , D e p u t v County A t t v .

For Respondent:

G r e q o r y J a c k s o n a r g u e d , H e l e n a , Montana

Submitted: ~ o v e m b e r3 , 1988

Decided: December 3 0 , 1988

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Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal involves the admissibility of hearsay
testimony regarding statements made by a child who allegedly
is the victim of incest. In order to protect the child, and
because the case is still in its preliminary stages, the
individuals involved will be referred to by their initials.
The State of Montana brings an interlocutory appeal from the
order of the District Court of the First Judicial District,
Lewis and Cl-ark County, excluding testimony by a social
worker and a counselor concerning S, the four-year-old
daughter of the defendant. We affirm, and remand for further
action.
The State frames a single issue on appeal: Did the
District Court err in refusing to allow into evidence
out-of-court statements made by the victim to her counselor,
Margaret Stuart, and to social worker Rita Pickering?
The facts of this case are highly contested. Because
the case has not reached the trial stage, the record does not
yet allow for clear distinctions between allegations by the
respective parties and provable fact. However, a chronology
of relevant events is as follows.
S lives in Helena with her mother. The mother and
J.C.E. are divorced, and custody of S has been disputed. In
March of 1987, S was in Butte visiting J.C.E. She developed
"spots," which prompted J.C.E. to take her to a doctor. She
was diagnosed as having chicken pox and impetigo, and put on
medication. The doctor described the location of the
impetigo as the "right groin."
On March 30, 1987, approximately ten days after S saw
the doctor in Butte, she returned to Helena. Her mother took
her to see her local physician, Dr. R.E. Kechely. At Dr.
Kechely's offi.ce, S removed her panties so the doctor could
examine the impetigo. S's mother noticed what appeared to be
blood in the panties, and. told Dr. Kechely this when he
entered the examination room. He indicated initially that
some of S's chicken pox may have become irritated and
therefore bloody. He then performed his examination.
Dr. Kechely's record of S's visit contains the followinq
notation:
Examination showing a diffuse perineal [groin areal
redness, and irritation almost to an abrasion point
hymenal opening appearing intact. In discussing
this with [S] she related a history of "Daddy puts
his fingers in me."
After the examination, Dr. Kechely reported S's case to the
Lewis and Clark County Human Services authorities and
referred her to a gynecologist. A gynecological examination
was performed later that day.
The next day, March 31, Rita Pickering of the Department
of Family Services conducted a videotaped interview with S.
Durinq the interview, Pickering asked S whether J.C.E. had
touched her genitals. Pickering obtained some responses from
S indicating that J.C.E. had indeed touched her, and some
responses denying any touching. In April of 1987, S heqan a.
series of counselinq sessions with counselor Margaret Stuart.
On May 6, 1987, J.C.E. was charged by information with
felony sexual assault. The information was amended
approximately two months later to charge J.C.E. with incest
as defined at $ 45-5-507, MCA. On October 28, 1987, a
hearing was held to videotape S's testimony for trial and to
determine if she was competent to testifv at trial. After
the State finished its examination of S t counsel for J.C.E.
moved to have S's testimony stricken on the ground that she
was not competent to testify. The court agreed and granted
the motion. The competencj7 ruling has not heen appealed.
 The State's list of proposed witnesses included Dr.
Kechely, Rita Pickering and Margaret Stuart, all of whom
would testify regarding S's out-of-court statements about the
alleged incest. Counsel for J.C.E. moved in limine to have
the testimony of these witnesses excluded as inadmissible
hearsay under Rule 802, M.R.Evid. The court denied the
motion as to Kechely, but granted it as to Pickering and
Stuart. The State appeals from that ruling.
The issue presented here goes to a very important and
troubling consideration in the trial of alleged perpetrators
of incest or other sexual abuse. The nature of these
offenses poses evidentiary problems. Often, the only
witnesses are the perpetrator and the victim. The victim of
incest or abuse is often very young. The inability of a very
young child to recall. or relate information about the alleged
offense accurately and consistently can result, as it has
here, in the child being deemed incompetent as a witness.
If the child is found incompetent to testify,
out-of-court statements made to relatives, medical personnel
or social services personnel may become an important source
of probative evidence. However, this is hearsay; the child
cannot be cross-examined as to the truth of the statements.
The absence of opportunity for cross-examination also raises
possible problems regarding the Sixth Amendment to the United
States Constitution and Sec. 24, Art. I1 of the Montana
Constitution. The defendant loses the opportunity to
confront a witness against him. The exceptions to the
general rule against hearsay testimony have been developed as
"substitutes" for the safeguards provided by
cross-examination.
Traditional hearsay exceptions do not always fit well in
cases where the hearsay declarant is a child victim of incest
or abuse. TTaluable evidence may be excluded by hearsay
strictures designed to protect against problems that may not
exist with a child declarant. At the same time, the
emotionally charged atmosphere of the case and the fact that
the alleged perpetrator may be a parent might color the
child's statements and the witnesses' perception of them.
See, e.g., Comment, A Comprehensive Approach to Child Hearsay
Statements in Sex Abuse Cases (1983), 83 Colum. L . Rev. 1745.
These factors have led us to analyze this case with
special care. Rita Pickering and Margaret Stuart were told
and shown things by S that could he claimed to be probati~re
as to J.C.E.'s guilt or innocence. However, given J.C.E.'s
inability to cross-examine S in court, the proffered
testimony must be examined closely for the reliability that
would make it admissible hearsay.
The State argued to the District Court that several.
hearsay exceptions applied to the testimony of Pickering and
Stuart, and renews those arguments on appeal. The State
asserts that the testimony of both witnesses is admissible
under the so-called "residual" hearsay exceptions found in
Rules 803 (24) and 804 (b)( 5 ) , M.R.Evid. In the case of Ms.
Stuart, the State further argues for application of the
exceptions found in Rule 702, M . R . E v i d . (expert testimony),
and Rule 803 (4) , M.R.Evid. (statements made for purposes of
medical diagnosis and treatment).
I. Expert Testimony
Rule 702
Expert testimony involves a witness rendering an opinion
using their superior knowledge of a subject not commonly
understood by lay persons. The hearsay exception for expert
testimony is found in Rule 702, M.R.Evid., and reads as
follows:
If scientific, technical, or other specialized
knowledge will. assist the trier of fact to
 understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of an
opinion or otherwise.
Whether a witness is qualified as an expert is largely within
the discretion of the trial judge, who has wide latitude in
determining the admissibility of proffered expert testimony.
State v. Eiler (Mont. 1988), 762 P.2d 210, 218-19, 45 St.Rep.
1710, 1721.
According to the State's offer of proof to the District
Court, Stuart would testify on four main points: (1) S has
told her that incidents similar to the one alleged happen
frequently with her father; (2) S can differentiate truth
from fiction and has a good grasp of reality; (3) S shows no
confusion about who assaulted her and (4) Stuart believes
that S is telling a reliable, credible story. The State
cited State v. Geyman (Mont. 1986), 729 P.2d 475, 43 St.Rep.
2125, to support its position. The District Court was
correct in excluding this proffered expert testimony for two
reasons.
First, the Geyman case dealt with the testimony of a
clinical psychologist in a s : u l
e:a assault case where the
alleged victim had testified. This Court held such expert
testimony admissible to assist the jury in assessing the
credibility of the child's testimony. The District Court
found Geyman inapplicable because S was not going to testify,
and her credibility as a witness therefore would not be an
issue.
This Court has previously held that as a general rule,
testimony by an expert evaluating the credibility of a
witness is inadmissible. State v. Rrodniak (Mont. 1986), 7 1 8
P.2d 322, 43 St.Rep. 755. In Geyman, we adopted an exception
to that rule for cases where the witness is a child victim of
sexual assault. Geyman, 729 P.2d at 579; see, State v.
French (Mont. 1988), 760 P.2d 86, 45 St.Rep. 1557. The
State's offer of proof indicated that Stuart would testify as
to the credibility of S's statements. This would be improper
under the general rule, and the exception established in
Geyman does not app1.y because S will not testify.
Second, the State's offer of proof indicates that Stuart
would identify the defendant as the perpetrator of the
incest. Rule 702, M.R.Evid., states, "If ... specialized
knowledge will assist the trier of fact to understand the
..
evidence . . " While Rule 704, M.R.Evid., allows an expert
witness to render an opinion on the ultimate issue in a case,
that opinion is for the assistance of the jury. Only the
jury can actually decide ultimate issues such as whether a
crime was committed or the identity of the perpetrator. This
question was squarely addressed in the context of child
sexual assault by the Nevada Supreme Court in Townsend 1 7 .
State (Nev. 1987), 734 P.2d 705, 708:
Here the expert not only opined that the child had
been sexually assaulted, but proceeded to identify
Townsend as the perpetrator. This was improper
testimony as it transcended the test of jury
enlightenment and entered the realm of fact-finding
that was well within the capacity of a lay jury.
The identity of the alleged perpetrator in this case is not a
question requiring an expert opinion. Whether S was the
victim of incest is a question that might be clarified by an
expert opinion on her physical or mental state. However,
whether the evidence adduced by the State establishes J.C.E.
as the perpetrator requires only the common logic that is
indeed well within the capacity of a lay jury.
Despite assertions made in the defendant's brief to this
Court, it does not appear that the District Court excluded
Stuart's testimony because she is not qualified as an expert.
could--depending on the foundation ,-aid,subject matter, and
discretion of the court--he offered as an expert and render
an opinion based on her expertise as a counselor. The State
could also offer her testimony relating statements made by S
if the court determines that such testimony would come within
the Rule 804 (b)(5) residual exception di-scussed below. The
fact remains, however, that Stuart is not licensed to render
medical diagnoses, and therefore cannot testifs ahout such
diagnoses under this exception. Furthermore, the rationale
behind the medical treatment exception is less forceFul where
a very young child i.s concerned. The child might not
comprehend the necessity of telling a doctor the truth in
order to aid diagnosis and treatment.
III. Residual Exception
Rule 804 (b)( 5 )
The State's argument to this Court asserts that the
residual hearsay exceptions found at Rule 803(24) and Rule
804(h) (51, M.R.Evid. should apply to testimony bv Pickering
and Stuart. The two exceptions are framed by exactl-y the
same language :
Other exceptions. A statement not specifically
covered by any of the foregoing exceptions but
having comparable circumstantial guarantees of
trustworthiness.
The hearsay exceptions previously discussed are based in
large part upon the status of the witness as an expert or a
doctor. The status and function of these individuals lends
trustworthiness to their testimony as to hearsay statements
that cannot be cross-examined. The hearsay exceptions in
Rules 803 and 804, including the residual exceptions, look to
the circumstances surrounding a hearsay statement when it is
made---the"circumstantial guarantees of trustworthiness" that
The testimony was excluded because it was offered on the
irrelevant question of S 1 s credibility. With sufficient
foundation, Stuart could give opinion test;-mony consistent
with her expertise as a counselor, as lonq as the
requirements of Rule 702 were satis+ied.
11. Medical Diagnosis or Treatment
Rule 80314)
'The State has sought to bring Stuart's testimony within
the "medical treatment" esception under a two-part test found
in State v. Robinson (Ariz. 1987), 735 P.2d 801, 809: ( 1 )
whether the declarantls motive was consistent with seekinq
medical treatment and (2) whether it was reasonable for the
physician to rely on the information in diagnosis and
treatment. The Arizona Supreme Court held in Robinson that a
licensed psychologist treating a child for psychological
problems resulting from sexual abuse was treating that child
for "medical" purposes and admitted the psvchologistls
testimony under this exception.
The medical diagnosis and treatment exception is
relatively new to Montana law. So far, its scope has not
been expanded beyond testimony by medical doctors. See,
e.g., Garza v. Peppard (Mont. 1986), 722 P.2d 610, 43 St.Rep.
1233. The psychologist in Robinson was licensed under
Arizona law to "diagnose, treat and correct" human
conditions. The Arizona court found this sufficientl;7
similar to the work of a medical doctor to admit the
psychologist's testimonv under the medical treatment
exception. The District Court in this case held that because
Stuart is not a licensed psychologist, she does not have the
authority to make the same type of diagnosis.
We decline to extend the medical diagnosis and treatment
exception beyond medical doctors in this case, and we affirm
the District Court's rulina on this issue. Stuart
lend reliability to the hearsay statement in lieu of
cross-examination.
For example, the "excited utterance" exception found at
Rule 803 ( 2 ) , M.R.Evid. requires that the statement be made
"under the stress of excitement" caused by an event or
condition. The rationale for this exception relies on
the special reliability which is regarded as
furnished by the excitement suspending the
declarant's powers of reflection and fabrication.
McCormick on Evidence, S 297 at 855 (E. Cleary 3d ed. 1984) .
The problem noted at the outset of this opinion, however, is
that traditional hearsay exceptions do not always serve their
purpose when children are involved. Courts in some states
have attempted to apply the excited utterance exception to
cases of child sex abuse. See, e .g., Smith v. State (Md.
19691 252 A.2d 277. A problem encountered with this
exception is that fear, lovaltv or lack of comprehension
might cause a child to delav for weeks before reportins
sexual abuse perpetrated by a parent or other close relative.
The residual exception argued hv the State in this case
has been relied upon bv states such as South Dakota and
Wisconsin for deal-inq with child hearsay. See, Rertrang 1 .

State (Wis. 1971), 184 N.W.2d 867; State v. McCafFerty, (S.D.
1984), 356 P J . W . ? d 159. The residual exception b its own
:
7
terms is designed for use where established exceptions do not
apply, which would seem to make it suited to child hearsay.
The residual exception also presents a problem, however,
due to the lack of guidelines for a court to use in
considering what constitutes a circumstantial guarantee of
trustworthiness in an incest or sexual abuse case. See,
Note, State v. McCafferty: The Conflict Retween a Defendant's
Right to Confrontation and the Need for Children's Hearsa~.
Statements in Sexual Abuse Cases ( ? 9 8 5 ) , 30 S.D.L. Rev. 663.
 An attempt to avoid the pitfalls of applying existing
hearsay exceptions to children has been made in the State of
Washington. In 1982, the Washington legislature enacted RCW
9A.44.120, which specifically declares child hearsay
statements concerning sexual contact admissible as evidence
in a criminal proceeding. However, the statute appears to
have done little to alleviate the lack of guidelines
encountered with the residual exception. In the first case
where it interpreted the statute, the Washington Supreme
Court felt compelled to give nine guidelines for its
application. State v. Ryan (Wash. 1984), 691 P.2d 197.
Our review of cases from other jurisdictions indicates
that special consideration must be given to proffered hearsay
testimony when the child declarant is unavailable as a
witness. Of the various approaches, the residual exception
presents the fewest problems in its application to child
hearsay. Nonetheless, it requires a set of guidelines for
use in cases of this kind.
The State argues for application of the residual
exception from either Rule 803 or Rule 804. However, Rule
803 deals with hearsay where the availability of the
declarant i s immaterial. The fact that S is unavailable as a
witness is the very reason why hearsay testimony has become
important to this case. Therefore, we hold that Rule
804 (b) (5), M. R.Evid. , shall henceforth be the rule under
which proffered hearsay, other than expert testimonv, is
considered for admissibility in cases of incest or other
sexual abuse of children when the al-leged victim is
unavailable as a witness.
Manv of the guidelines set forth below for application
of Rule 804(b)(5) have been implemented in other
jurisdictions. Thev are not mandatorv, and are presented
onl-v as considerations for a trial iudae to hear in mind when
deciding the admissibility of proffered hearsay testimony.
Some may not apply to a given case.
IV. Child Hearsay Guidelines
Because the issue being addressed here arises only when
a child hearsay declarant is unavailable as a witness,
preliminary findings concerning the child's availability must
be made by the District Court before hearsay testimony can he
considered under Rule 804 (b)(5):
1. The victim must be unavailable as a witness,
whether through incompetenc~7, illness, or some
other Like reason (e.g., trauma induced hv the
courtroom setting) .
2. The proffered hearsay must be evidence of a
material fact, and must be more probative than any
other evidence available through reasonable means.

3. The party intending to offer the hearsay
testimony must qive advance notice of that
intention.
Once the court has found these conditions to be present, Rule
804 (b)(5) can be applied to any proffered hearsay testimony.
The guidel.ines that fol-low are presented in crroups
corresponding to the main components of such testimonv:
1. The Attributes of the Child Hearsay Declarant.
a. The child's age.
b. The child's ability to corn-unicate
verbally.
c. The child's ability to comprehend the
statements or questions of others.
d. The child's ability to tell the difference
between truth and falsehood.
e. The child's motivation to tell the truth
e . , whether the child understands the
general obligation to speak truthfully and not
fabricate stories) .
 f. Whether the child possessed sufficient
mental capacity at the time of the alleged
incident to receive an accurate impression of
it.
g.FJhether the child possesses sufficient
memory to retain an independent recollection
of the events at issue.

2. The Witness Relating the Hearsay Statement.
a. The witness's relationship to the child.
b. Whether the relationship between the
witness and the child might have an impact on
the trustworthiness of the hearsay statement.
c. Whether the witness might have a motive to
fabricate or distort the child's statement.

d. The circumstances under which the witness
heard the child's statement, including the
timing of the statement in relation to the
incident at issue and the availability of
another person in whom the child could
con£ide.
3. The Statement Itself.

a. Whether it contains knowledge not normally
attributed to a child of the declarant's age.
b. Whether it was volunteered spontaneously.
c. The suggestiveness of prior statements by
the witness relating the statement or third
parties present when the statement was made.
d. If statements were made by the child to
more than one person, whether those statements
were consistent.
e. Its nearness in time to the incident at
issue.

4. The Availability of -
- - --
Corroborative Evidence.
a. Whether the act alleged can he
corroborated.
 b. If the child's statement identifies a
perpetrator, whether that identity can he
corroborated.

c. Such corroboration can come from direct,
physical evidence, or more circumstantial-
evidence of motive or opportunity.
5. Other Considerations.

The particular facts of a case may present the
court with considerations other than those
outlined above that in the court's judgment
will bear on the admissibilitv of the
proffered testimony.
We must emphasize that in uti-lizing these guide!-ines,
the admissibility of evidence remains in the discretion of
the trial judge. Where a court is determining circumstantial
guarantees of trustworthiness, we will defer to the court's
decision unless an abuse of discretion is clearlv shown.
State v. LaPier (1984), 208 Mont. 106, 676 P.2d 310. In
order for this Court to conduct proper review of decisions
under Rule 804(b)(5), a trial judge's determination utilizing
these considerations must be reduced to writing. Therefore,
a District Court ruling on the admissibility of child hearsay
under Rule 804(h)(5), M.R.Evid., shall issue findings of fact
and conclusions of law setting forth its decision.
We affirm the District Court's decision as to the
admissibility of the State's proffered testimony under the
exceptions for expert testimony and medical treatment. We
remand the case to the District Court for entry of findings
of fact and conclusions of law as to the applicability of
Rule 804 (b)(5), M. R. Evid., to testimony by Pickering or
Stuart relating statements made by S f and for further
proceedings.
Affirmed and remanded.
We Concur:
A

District Judqe Dale Cox
sitting for J u s t . i c e John C.
Sheehjr