U.S. v. Hollis, 57 M.J. 74

First Principles: Constitutional Matters: Due Process

1. appellant was not denied due process by the failure to audiotape or videotape the interviews of child victims of sexual abuse; there is no rule requiring that medical interviews be taped, there is no indication in the record that material evidence was lost, and there is nothing in the record suggesting bad faith

Core Criminal Law Subjects: Evidence: Hearsay › Medical exception

1. “medical exception” [Mil.R.Evid. 803(4)] is a firmly rooted exception to the hearsay rule, and, as such, it satisfies the constitutional right of confrontation; thus, there is no need to establish that the declarant is unavailable as a witness
2. under Mil.R.Evid. 803(4), the medical exception, the proponent of the evidence must establish that (1) the statements were made for the purposes of medical diagnosis or treatment, and (2) that the declarant made the statement with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought
3. under Mil.R.Evid. 803(4), the medical exception, the key factor in deciding if the declarant made the statement with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought is the state of mind or motive of the patient in giving the information and the expectation or perception of the patient that if he or she gives truthful information, it will help him or her to be healed
4. under Mil.R.Evid. 803(4), the medical exception, the determination whether the patient has the requisite state of mind is a preliminary question of fact, and, as such, it will be overturned on appeal only if clearly erroneous
5. a child-victim’s expectation of receiving medical treatment may be established by the testimony of the treating medical professionals, and the record must support the military judge’s determination that the child had the requisite understanding and expectation of a medical benefit to satisfy the subjective prong, even if the military judge relies on the doctor’s testimony to establish the factual predicate for this determination
6. military judge did not abuse his discretion by permitting a doctor to testify about child abuse victim’s responses to his questions during his medical history interview; record established child’s expectation of receiving medical treatment where: (1) child was taken to doctor’s office at the Naval Hospital shortly after making an emotional disclosure to her nanny; (2) child had been treated previously by the same doctor and knew that he was a doctor; and (3) child indicated that she understood the need for truthful answers so that the doctor could determine what had happened, in order to treat her
7. for purposes of medical exception to hearsay rule, doctor was acting for medical reasons and not in complicity with law enforcement personnel where: (1) doctor said he needed to see the victim immediately because it was a medical emergency; (2) when the child arrived at his office, doctor told investigator that he wanted to interview child; and (3) the impetus for the interview was doctor’s concern about a medical emergency, not a request from law enforcement for investigative assistance
8. child’s responses to questions asked by criminal investigator were not admissible under the medical exception
9. military judge did not abuse his discretion by admitting doctor’s testimony under medical exception to hearsay rule where: (1) doctor examined two children, at defense counsel’s request, to determine if they had been physically and emotionally traumatized; (2) the record reflects that one child knew the doctor was a medical doctor; (3) the child asked to see the doctor; (4) the child addressed the doctor as “Doctor C”; and (5) the child knew the doctor needed truthful answers to help her
10. military judge did not abuse his discretion by admitting doctor’s testimony under medical exception to hearsay rule where: (1) doctor examined the children, at defense counsel’s request, to determine if they had been physically and emotionally traumatized; (2) the child indicated that she knew the officer was a doctor; (3) the child demonstrated that she knew doctors help children, spontaneously announcing that a doctor had treated her skin rash; (4) child told doctor that she understood the need for truthful answers so that doctor could make her better; and (5) the doctor’s professional assessment was that the child knew she was a doctor who helped children and that the child understood the need to tell the truth

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. military judge’s decision to admit evidence is reviewed for abuse of discretion; the military judge’s factfinding is reviewed under the clearly erroneous standard of review, and conclusions of law are reviewed de novo; the military judge will be reversed if the findings of fact are clearly erroneous or if the military judge’s decision is influenced by an erroneous view of the law
2. under Mil.R.Evid. 803(4), the medical exception, the determination whether the patient has the requisite state of mind is a preliminary question of fact, and, as such, it will be overturned on appeal only if clearly erroneous