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

handle is hein.journals/chilawpt7 and id is 1 raw text is: -ABA
VOL. 7, No. 1                  March, 1988

Abuse, Evidence
Videotaped Statement Of Abuse Victim
Recorded Two Days After Incident Is
Admissible As Prior Consistent
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.
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
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
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.
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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