State v. Harris

*424JUSTICE HARRISON

dissenting.

I concur in Mr. Justice Weber’s dissent and add to it the fact that Sandi Burns has testified as an expert witness not only in numerous other states but before the federal courts and is used by the Federal Bureau of Investigation as an expert witness. We find ourselves in an amazing situation of denying her testimony under Rule 804(b)(5) in a state court in Montana, yet if she were testifying to the same fact situation in a federal court in Montana, her testimony would be received.

While the question regarding the admissibility of psychiatric and psychological testimony in child abuse actions arises in criminal cases, the same principles of these decisions, in my opinion, should also have some applicability in civil actions.

Child abuse cases have increased dramatically over the past decade. An estimated one in five females suffers from sexual abuse as a child. However, in two-thirds of child abuse cases, the incident is never reported. Morgan v. Foretich (4th Cir. 1988), 846 F.2d 941, 943. Even when abuse is reported, convictions are few. Because the sole witness is often a very young child who may be incompetent to testify at trial and because physical evidence is frequently lacking, prosecution is difficult. Id. Thus, the admission of a child’s statements made to adults at the time of discovery of the abuse and during the course of therapy is crucial to the State’s case. According to the comments to the Federal Rules of Evidence, “[wjhen the choice is between evidence which is less than best and no evidence at all, only clear folly would dictate an across- the-board policy of doing without.” Fed.R.Evid. Art. VIII advisory committee’s note.

In child abuse cases, federal courts have admitted statements of children made to psychologists and social workers, as well as physicians, under the medical exception to the hearsay rule, Rule 803(4), Fed.R.Evid., identical to the Montana rule. Morgan, 846 F.2d at 949; United States v. DeNoyer (8th Cir. 1987), 811 F.2d 436, 438; United States v. Nick (9th Cir. 1979), 604 F.2d 1199, 1201-1202. In fact, the advisory committee note to Rule 803(4) states that “[ujnder the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.” Fed.R.Evid. 803(4) advisory committee’s note.

Federal courts have instituted a two-part test for admitting such statements: (1) the declarant’s motive in making the statement must *425be consistent with the purposes of promoting treatment; and (2) the content of the statement must be such as is reasonably relied on by a physician. United States v. Renville (8th Cir. 1985), 779 F.2d 430, 436. Statements made for purposes of medical treatment are frequently admitted into evidence regardless of whether the individual who made the statement is competent to testify at trial. Morgan, 846 F.2d at 949.

In allowing the admission of hearsay statements of a four-year-old child to her treating psychologist, the Fourth Circuit Court of Appeals found that a child’s motive to make true statements for the purposes of diagnosis or treatment is as strong or stronger than an adult’s. Secondly, the therapist or physician reasonably relies on the child’s statements for treatment or diagnosis. Morgan, 846 F.2d at 949. The assailant’s identity is one of the factors relied on for treatment in child abuse cases. Renville, 779 F.2d at 436-37; Morgan, 846 F.2d at 950.

The federal cases follow the trend in state courts to allow this type of expert testimony in determining whether a child has been abused. In addition, nearly thirty states have passed legislative exceptions to the hearsay rule allowing individuals to testify to a child’s hearsay statements if certain requirements are met.1 Contrary to the majority’s conclusion that statements to a child’s therapist are unreliable, Maryland’s child hearsy statute allows the hearsay only if the statements are made to a licensed physician, psychologis, or social workers. Md.Cts. & Jud. Proc.Code Ann., § 9-103.1 (1989).

Arizona allows expert testimony explaining general behavioral characteristics of child victims on the basis that jurors, most of whom are unfamiliar with the behavioral sciences, might otherwise attribute behaviors of victims to inaccuracy or prevarication. State v. Moran (Ariz. 1986), 151 Ariz. 378, 728 P.2d 248, 250-252. Arizona also follows the federal rule in admitting child hearsay statements to treating psychologists under the medical exception to the hearsay rule. State v. Robinson (Ariz. 1987), 735 P.2d 801, 809-10.

In Brady v. State (Ind. App. 3 Dist. 1989), 540 N.E. 2d 59, 70-71, the Indiana court allowed testimony of a therapist in regard to the effects of sexual abuse on preschool age children.

In State v. Kim (1982), 64 Haw. 598, 645 P.2d 1330, the courtupheld expert testimony as to general characteristics of a child rape victim, including the credibility of the child witness, if the trial court is satisfied “that the expert’s contacts with the evaluated witness were such that he had an opportunity to make a thorough and objective assessment.” Kim, 645 P.2d at 1336.

*426In our sister state of Washington in State v. Petrich (1984), 101 Wash. 2d 566, 683 P.2d 173, the Washington court allowed an expert to describe why sexually abused children often delay reporting the abuse and that the length of delay correlates with the relationship between the abuser and the child. The Washington Supreme Court did not disturb the action of the trial court; it did however find prejudicial the expert’s statement that in most instances a child is molested by someone he or she knows.

In State v. Middleton (1983), 294 Or. 427, 657 P.2d 1215, two social workers testified that the complainant’s behavior was consistent with that of other children who reported sexual molestation by a family member. Similarly, in Ward v. State (Fla. App. 1 Dist. 1988), 519 So.2d 1082, the court, in evaluating the testimony of a clinical psychologist commented that “[c]hild abuse syndrome is an area sufficiently developed to permit an expert to testify that the symptoms observed in the evaluated child are consistent with those displayed by victims of child abuse.” Ward, 519 So. 2d at 1084. See also, Calloway v. State (Fla. App. 1 Dist. 1988), 520 So.2d 665, review denied, 529 So.2d 693 (1988), where a psychologist was allowed to testify as an expert.

In State v. Myers (Minn. 1984), 359 N.W.2d 604, the court allowed a clinical psychologist to generally describe the behavior and the symptoms typically exhibited by sexually abused children; she was allowed to state her opinion that the child was truthful about having been abused. Following Myers, the Minnesota Court of Appeals recently held that “[ejxpert testimony describing the traits and characteristics typically found in sexually abused children and those the expert had observed in the complainants is admissible .... An expert may also testify properly that the child’s behavior is consistent with the profile of a sexually abused child.” State v. Dana (Minn. App. 1987), 416 N.W.2d 147, 153, rev’d on other grounds, 422 N.W.2d 246 (1988).

The jury is the sole judge of the credibility of witnesses. By not accepting the testimony of Sandi Bums in this case we are denying the jury the opportunity to hear the testimony of one who can add to the jury’s ability to fairly decide the factual issues. The majority’s statement that a therapist is predisposed to find abuse is unsupported by research or other evidence and is merely a conclusory opinion. I find it more credible that a therapist as experienced as Sandi Burns is better able than a lay witness to detect fabricated statements by children.

*427The majority’s broad assertion that the relationship between a therapist and a child client has a “negative impact on the trustworthiness of the hearsay statements” is equally without foundation. As in this case, children in a sexual abuse situation are often threatened with harm or death to themselves and others if they say anything about the abuse. Thus, a child whose trust is betrayed by an abuser may take weeks or even months to trust an adult before he or she will reveal details of the abuse. As Sandi Bums testified, the child’s statements in therapy are not necessarily made in response to questioning, but may be divulged while the child is at play or through pictures the child draws. A therapist is trained to ask non-leading questions. In any particular case, the trial court needs to assess the circumstances under which the child’s statements to a therapist are made, rather than beginning with the insupportable assumption that the statements are inherently unreliable.

Sandi Burns is so well trained and knowledgeable in her field that even medical professionals refer patients to her. I am reluctant to categorically preclude all such testimony as we have done here, since it is virtually the unanimous opinion of commentators that under certain circumstances expert psychiatric testimony may reveal to the trier of fact characteristics or conditions of the witnesses which may assist the jury in the assessment of their credibility. See Saxe, Psychiatry, Psychoanalysis, and the Credibility ofWitnesses, 45 Notre Dame Lawyer 238, (1970); Juviler, Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, 48 Cal.L.Rev. 648 (1960); McCormick, Evidence, Section 45 (1972 ed.).

By our action today, we are, in my opinion, setting back the prosecution of child abuse cases in Montana for years to come.