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7 ABA Juv. & Child Welfare L. Rep. 1 (1988-1989)

handle is hein.journals/chilawpt7 and id is 1 raw text is: -ABA UVENIL. t& CHILD WELFARE (Reporter VOL. 7, No. 1 March, 1988 CHILD WELFARE Abuse, Evidence Videotaped Statement Of Abuse Victim Recorded Two Days After Incident Is Admissible As Prior Consistent Statement. VanMeter v. State, 743 P. 2d 385 (Alaska Ct. App. 1987). Criminal sexual abuse charges were brought against the male houseguest of the six-year-old victim's family. The assault was alleged to have occurred during a session of play between the accused and the child. The mother of the child learned of the incident the following day from ber other daughter and the victim herself. She then proceeded to seek medical care for the victim, and .notified the police. Two days after the assault, a psychologist videotaped a statement by the child regarding the assailant and the cir- cumstances surrounding the assault. At trial, the defendant atacked the victim's credibility and motivation In claiming that she had been molested. Following the child's direct and cross-examination testimony, the state, over the defendant's objection, played the videotape of the child's prior statements. In allowing the state to do so, the trial court rul- ed that the tape was not hearsay under the state's prior consistent statement rule of evidence. The defendant was convicted, and he appealed. The Alaska Court of Appeals affirmed the trial court's evidentiary ruling. Under the ap- plicable rule of evidence, prior statements of a witness were not considered to be hearsay If the witness testifies at trial and the prior statement is consistent with the trial testimony and Is offered to rebut an express. ed or implied charge of recent fabrication or improper motive. The court ruled that the video statement met all of these requirements. The defendant clearly had been attempting to show that the victim had been making up he incident or had been prompted by her aother, police or the psychologist to com- plain. Minor inconsistencies between the two sets of statements were deemed inconsequen- tial by the court, as they did not touch upon the manner of the assault or the identity of the assailant. Finally, in that the videotape was made within two days of the incident, the child had not yet been exposed to the possibility of coaching or fabrication induc- ed by law enforcement officials, as alleged by the defendant. Abuse, Evidence Victim's Testimony During Preliminary Hearing Is Admissible As Substantive Evidence of Abuse In Light Of Her Recantation During Trial. and Nurse's Testimony Regarding Victim's Statements Was Admissible As A State- ment Made For The Purpose Of Obtain- ing Medical Diagnosis Or Treatment. People v. Winfield, ....._._Jll. App.3d..._, 513 N.E.2d 1032 (1987). A father was charged with 16 counts of criminal activity stemming from his alleged sexual molestation of his six-year-old daughter. The state's evidence consisted of the victim's testimony at trial and during a preliminary hearing, as well as that of a nurse who attended to the child 24 hours after the alleged indident. At the preliminary hearing, held three days after the alleged Incident, the victim related the circumstances surrounding the abuse by her father. At trial, however, the child recanted her accusations, stating that a friend of hers had suggested that she lie. The nurse repeated the child's version of the abuse, though there were no physical in- dications of the described sexual assault. The trial court stated that it believed the child's preliminary hearing testimony, as supported by that of the nurse, and that her recanta- tion at trial was the result of parental coer- cion. The father was convicted on three counts, and he appealed. The Illinois Court of Appeals affirmed. The father's appeal, which was based upon the use of the victim's prior inconsistent statements as substantive evidence, hinged on a perceiv- ed conflict between a state statute and court rule. The court's rules of evidence limited the use of prior inconsistent statements to im- peachment purposes, while the statute allow. ed their use as substantive evidence. The father claimed that the courts had been con- stitutionally granted exclusive power over the promulgation of their own rules of procedure, and that the conflicting statute amounted to a nullity in light of separation of powers con- siderations. The court disagreed, holding that the rules of evidence were only peripherally related to the administration of the courts. Moreo er, the court stated that there was no inherent conflict between the statute and the rule, which when read in concert merely pro- vided for both uses of prior inconsistent statements. The father's objections to the nurse's hear- say testimony regarding the child's tale of abuse were also rejected. The nurse, no less than a doctor, had been providing diagnostic and treatment services to a patient whom she believed had been sexually assaulted. Such statements fell within the medical treatment exception to the hearsay rule, despite the fact that they were not made to a doctor. HIGHLIGHTS Child Welfare 1 Rights of Children and Families 4 Juvenile Justice 8 Other Cases of Interest 9 Attorney General Opinions 11 Supreme Court News 13 Book Review 14 Federal Regulation Report 15 From the ABA 16 American Bar Association

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