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13 ABA Juv. & Child Welfare L. Rep. 1 (1994-1995)

handle is hein.journals/chilawpt13 and id is 1 raw text is: ABA JUJVENELt&CHILD WELFARE (Reporter VOLUME 13, NO. 1 March 1994 Confidentiality/Privilege, Agency Records/Unfounded Reports Fox v. State, 863 S. W.2d 568 (Ark 1993). Defendant was not entitled to disclosure of the victim's prior unfounded report against Th contained in the agency's files. A 14-year-old girl informed the child welfare agency that her stepfather had been sexually abusing her since she was six or seven years old. Soon after making her alle- gations, however, the child recanted and the agency designated the report unfounded. A month later, the child made a second re- port. After an investigation, the agency de- termined her allegations were founded. The stepfather was charged with rape. The stepfather filed a discovery motion seeking copies of agency records; specifi- cally, he sought all prior allegations of sex- ual abuse made by the child against him and all documents concerning investigations of those allegations. The trial court ordered dis- closure of all founded reports, but declined to order disclosure of unfounded reports. The stepfather was ultimately convicted and he appealed, claiming the trial court erred in denying him access to unfounded reports. The Supreme Court of Arkansas affirmed. The statute provided unfounded reports may not be disclosed except for internal agency use in the administration of adoption, foster care, protective services programs, or child care li- censing programs. It also barred the release of identifying information about persons who made a report or cooperated in an investigation unless a court of competent jurisdiction orders release of the information for good cause shown. The court construed this statute not to require the disclosure of unfounded reports. The statutory language is clear and unambigu- ous, and the statute as a whole is consistent with keeping unfounded reports confidential. The court rejected the stepfather's argu- ment that Pennsylvania v. Ritchie, 480 U.S. 39 (1987), required disclosure of unfounded reports. Although the United States Supreme Court in Ritchie held the defendant had the right to examine all agency reports in question, it took pains to state that it was holding as it did due to the absence of a state policy in Pennsylvania to the contrary. According to the court in the instant case, in light of the clear statutory language, Here, such a state policy exists. Thus, the court upheld the trial court's refusal to compel disclosure of unfounded reports in the agency's files. Expert Testimony, Sex Offender Profile Flanagan v. State, 625 So. 2d 827 (Fla. 1993). Sex offender profile evidence does not meet the Frye test and was not other- wise admissible as background informa- tion or as substantive evidence of guilt. Defendant was charged with sexually abus- ing his mentally retarded nine-year-old daugh- ter. At trial, a psychologist who had evaluated the child testified about the child's evaluation, described typical problems in interviewing a young child, and identified common charac- teristics of perpetrators of child sexual abuse and the home environment where child sexual abuse occurs. Defendant was convicted. On appeal, his conviction was affirmed but two questions regarding the admissibility of profile evidence were certified for the state's highest court (see 11:1ABA Juv. & Ch. Wel fL Rptr. 1 (March 1992). The Supreme Court of Florida answered the certified questions in the negative, holding the profile evidence was not admissible. (However, the court found the error in admitting such evi- dence was harmless and so affirmed defen- dant's conviction). First, the court explained, in Florida expert testimony based on scientific principle must meet the Frye test-i.e., it must be generally accepted in the field. (In a foot- note, the court acknowledged the United States Supreme Court's recent holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 [1993], that the Frye test was super- seded by the Federal Rules of Evidence. How- ever, the court indicated Frye continues to apply in Florida.) The court pointed out profile testimony is the kind of evidence required to meet the Frye test because by its nature [it] necessarily relies on some scientific principle or test, which implies an infallibility not found in pure opinion testimony. The court found it was 'virtually uncon- tested in this case that sex offender profile evidence could not meet the Frye test. The only evidence offered on this issue by the state was the psychologist's testimony that profile information is generally relied on by people working in the field of child sex- ual abuse to determine what household are at risk and to aid in treatment. However, the psychologist also admitted profile infor- mation could not be used to prove or dis- prove that a person was a child abuser. The court concluded the profile evidence did not meet the Frye test. The court went on to address the interme- diate appeals court's holding that the profile evidence could be admitted as background information without meeting the Frye test. The court rejected this theory: The court- room is not a classroom to be used to edu- cate a jury on an entire field only tangentially related to the issues at trial. Evidence not admitted as substantive evi- dence of guilt is irrelevant. Moreover, to ad- mit the profile evidence as substantive evidence of guilt was improper because it constituted an impermissible attack on de- fendant's character. Thus, the profile evi- dence should not have been admitted. However, the court concluded this error was harmless and affirmed the conviction. Hearsay, Business Records Alexander v. Commonwealth, 862 S.W.2d 856 (Ky. 1993). Social worker's testimony as to what the victim told her was inadmissible un- der the business records exception to the hearsay rule. A seven year old claimed her stepfather had raped her. She was interviewed by an in- vestigative social worker from the child wel- fare agency, who testified at trial. The social worker testified as to the child's statements during the interview. This testimony was ad- mitted by the trial judge under the business records exception to the hearsay rule. Defen- dant was convicted and he appealed on a Also in this issue: Policy Update Evaluating Health Reform Proposals, Part I ........... 9 Supreme Court News . . . 15 American Bar Association / E

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