SC Supreme Court Says No to Physician Witness Hearsay
In the latest criminal appeal from SC prosecutors’ concerted attempts to bolster child witness’s testimony in every way possible, the SC Supreme Court says “no” to a prosecutor’s attempt to use Rule 803 to bolster testimony through a child’s physician.
This Court will not sanction the State’s use of [a doctor] as a conduit for this glaringly inadmissible hearsay to be brought before the jury. If this tactic were permitted, the legitimate use of the Rule 803(4), SCRE, medical diagnosis and treatment exception would be undermined… [the doctor’s] recounting of Minor 1’s statements amounted to nothing more than “hearsay shrouded in a doctor’s white coat.”
What is the medical diagnosis exception, and when are a child’s hearsay statements admissible in court?
Hearsay Exception for Purposes of Medical Diagnosis or Treatment
Hearsay is when a witness testifies as to what someone else said, the statement is offered “for the truth of the matter asserted,” and “the declarant” (the person who made the out-of-court statement) is not available for cross-examination.
It’s not hearsay, and it’s admissible if it’s not offered for the truth of the matter asserted. It is hearsay, but it is admissible if it falls under one of the many hearsay exceptions that are listed in the rules of evidence.
One of those exceptions is Rule 803(4), which allows hearsay testimony:
… made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment…
No Hearsay Exception for Child Sexual Abuse
There is no hearsay exception in Rule 803 for “statements made by a child alleging sexual abuse.”
The doctor, in this case, had regularly treated the children for most of their lives without any suspicion of child abuse, he had performed physical examinations on both children and found no signs of abuse, and the disclosures that the children made were not necessary for the purposes of medical diagnosis or treatment in this case.
When is a Child’s Hearsay Statement Admissible
A child’s hearsay statement is admissible in a CSC with a minor prosecution… when it’s not hearsay.
South Carolina’s rules of evidence define hearsay in Rule 801. In Rule 801(d), the evidence rules also list specific types of statements that are not hearsay (they aren’t hearsay only because the rules say they aren’t).
One of these, Rule 801(d)((1)(D), specifically exempts a child’s or adult’s statement in a CSC case, but limits the statement to the time and place of the alleged incident – any other details are hearsay:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if… (D) consistent with the declarant’s testimony in a criminal sexual conduct case or attempted criminal sexual conduct case where the declarant is the alleged victim and the statement is limited to the time and place of the incident…
The prosecution always finds another witness to testify as to hearsay statements by the child and to bolster the child’s credibility – although Rule 801(d)((1)(D) allows corroboration that the allegation was made and of the time and place of the alleged incident, prosecutors will continue to violate the rules and push the envelope if the courts let them.
Charleston SC Sex Crimes Defense Attorney
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