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

handle is hein.journals/chilawpt13 and id is 1 raw text is: ABA
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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