People v. Kosters
People v. Kosters
Opinion of the Court
Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). For each count defendant received concurrent sentences of seven to thirty-five years in prison. He appeals as of right. We affirm._
i
On appeal, defendant asserts that the trial court improperly admitted hearsay statements which his son made to Nurse McNees. We agree that this testimony should have been excluded under MRE 803(4), since the statements were not reasonably necessary to medical diagnosis and treatment. See People v Wilkins, 134 Mich App 39, 43; 349 NW2d 815 (1984), lv den 422 Mich 862 (1985). However, the error was harmless because the remaining evidence against defendant was overwhelming.
Defendant’s five-year-old son gave direct testimony against his father. Even though the child’s testimony was at times inconsistent, it was credible and the jury believed it. In fact, in this particular case of multiple incidents of abuse over a period of time, the child’s very inconsistency lends credibility to his testimony, since it tends to show that the boy was relying on his child’s memory and was not delivering prelearned and adult-inculcated testimony.
The boy’s testimony was explicit. The child testified that he saw his father put his finger into his
In addition to the child’s direct testimony, there was also the testimony of defendant’s ex-wife and the examining physician. The fact of sexual abuse was clearly shown as to both children. The examining physician testified to his findings of vaginal penetrations and injuries to defendant’s daughter and of repeated anal penetrations to both children.
Further, the circumstantial evidence against defendant was strong. It is well established that circumstantial evidence and reasonable inferences arising therefrom are sufficient to constitute satisfactory proof of the elements of a criminal offense. People v Frank Johnson, 146 Mich App 429, 434; 381 NW2d 740 (1985), lv den 425 Mich 855 (1986).
The circumstantial evidence presented at trial indicated the unlikelihood that sexual injuries to the two children could have occurred while in their mother’s custody because there had been no males in the house other than the maternal grandfather and, during the period in question, the children had not been out of the mother’s presence except twice with a babysitter for only an hour. Moreover, defendant had the opportunity to commit the acts, particularly on three occasions, after which the mother observed a vaginal irritation on the daughter. Defendant told police that he had been alone with his daughter on one of these
In light of the direct and circumstantial evidence against defendant, the error of admitting the hearsay testimony of Nurse McNees was harmless beyond a reasonable doubt, since no juror would have voted for acquittal. People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50 (1975), lv den 397 Mich 839 (1976).
ii
Defendant also argues that the trial court improperly admitted expert testimony comparing pubic hairs taken from defendant with those allegedly found in the diaper of defendant’s daughter following defendant’s visitation. We disagree with this contention. The pubic hair evidence did not need to be excluded because it tended to connect defendant with the crime and was admissible under MRE 401. See People v Horton, 99 Mich App 40, 49-51; 297 NW2d 857 (1980), vacated on other grounds 410 Mich 865 (1980), on remand 107 Mich App 739; 310 NW2d 34 (1981), lv den 418 Mich 942 (1984); People v Goree, 132 Mich App 693, 701; 349 NW2d 220 (1984); People v Furman, 158 Mich App 302, 327-328; 404 NW2d 246 (1987), lv den 429 Mich 851 (1987).
The instant case is clearly distinguishable from People v Nichols, 341 Mich 311; 67 NW2d 230 (1954). Nichols was a paternity case. Here, the pubic hairs were found immediately after defendant’s visitation of June 18, 1986 — which defendant admitted was one during which he had been alone with his daughter, and following which the mother observed a vaginal irritation on the child. Hence, unlike the situation in Nichols, the evidence showing that the pubic hairs could have
hi
We also reject defendant’s contention that it was error requiring reversal for a prosecution witness to state on cross-examination that defendant had taken a polygraph in conjunction with a previous sexual abuse charge.
In responding to defense counsel’s request that she tell the jury when she had been advised by the Ottawa County Sheriffs Department that, in their opinion, the son had not been sexually abused by defendant, defendant’s ex-wife replied: "When Elroy took the lie-detector test.” Upon defense counsel’s objection and the trial court’s instruction, defendant’s ex-wife rephrased her answer. The trial court offered a curative instruction, but defendant declined it when the court refused to advise the jury that he had passed the lie-detector test.
The results of a polygraph (lie-detector) test are not admissible as evidence in Michigan. People v Frechette, 380 Mich 64, 68; 155 NW2d 830 (1968). However, a brief, inadvertent reference to a polygraph is harmless. People v Tyrer, 19 Mich App 48, 51; 172 NW2d 53 (1969), app dis 385 Mich 484; 189 NW2d 226 (1971). The mere mention of a polygraph by a witness is not grounds for mistrial. People v Paffhousen, 20 Mich App 346, 351; 174 NW2d 69 (1969), lv den 383 Mich 825 (1970).
The answer of defendant’s ex-wife was responsive to a poorly phrased question. Because the jury knew that the police did not charge defendant
iv
Defendant further contends that there occurred prosecutorial misconduct requiring reversal when the prosecutor questioned defendant as to his sexual orientation and preference. We are unpersuaded by this argument.
In Michigan, a witness may be cross-examined on any matter relevant to an issue in the case. MRE 611(b), MRE 401. Since there is no known connection between child abuse and the sexual orientation of those who sexually abuse children, the prosecutor’s questions appear to have been irrelevant and the trial court correctly terminated this line of questioning.
The trial court should also have instructed the jury to disregard the answers. See People v Stinson, 113 Mich App 719, 726-727; 318 NW2d 513 (1982), lv den 417 Mich 957 (1983). However, failure to so instruct the jury was not error requiring reversal because (1) defense counsel never asked for a curative instruction and (2) defense counsel on redirect examination elicited the same answers to the same questions to which he had objected on cross-examination. Defense counsel’s omission to request a curative instruction waived any error in
v
We also reject defendant’s argument that the trial court abused its discretion in allowing the prosecutor to examine defendant’s five-year-old son by leading questions. It was within the trial judge’s discretion to allow the prosecutor a fair amount of leeway in asking questions of young children called in his case in chief. People v Hicks, 2 Mich App 461, 466; 140 NW2d 572 (1966). Our review of this matter shows that the prosecutor’s direct examination was no more leading than necessary given the age of the witness and his uneasiness. The prosecutor’s questions were only leading to the extent necessary to develop the witness’s testimony in light of his age. MRE 611(c).
VI
Defendant’s final argument is that the cumulative effect of the trial court’s errors was to deprive defendant of a fair trial. We disagree.
The trial court’s error of allowing the hearsay testimony of Nurse McNees was harmless, as was the brief and inadvertent mention of defendant’s having taken a polygraph. Regarding the court’s failure to give a curative instruction following improper prosecutorial questioning as to defendant’s sexual orientation, defense counsel waived objection by failing to request a curative instruction and by proceeding with the same line of questioning himself.
These three errors taken together cannot be said
Affirmed.
Dissenting Opinion
(dissenting). I am unable to say that the errors which occurred herein were harmless beyond a reasonable doubt. Indeed, I view one error as so prejudicial as to require reversal in itself.
No case could more clearly demonstrate our problems in attempting to deal with the sexual abuse of small children in the traditional context of a criminal prosecution. The children here involved were defendant’s son and daughter, who, following a bitter separation and divorce, were with defendant only for periodic visitation. That they had been subjected to acts of sexual depravity was clear. The medical evidence established vaginal penetrations and injuries to defendant’s daughter, and both children showed physical effects of repeated anal penetrations. It was the prosecution’s claim that such abuse was perpetrated on the children during visitations with defendant.
Defendant does not claim error in the trial court’s decision to allow his son to testify. He does contend, however, that, given the susceptibility of such a young child to give an answer wanted by the questioner, the trial judge erred in allowing the use of leading questions by the prosecutor. The record shows that a number of leading questions
MRE 611(c) provides that "[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” The rule is consistent with earlier Michigan decisions recognizing the discretion of the trial court in allowing leading questions. Young witnesses have been said to represent the classic situation where leading questions are appropriate. 3 Weinstein, Evidence, § 611(05), p 611-80; People v Kratz, 230 Mich 334, 340; 203 NW 114 (1925). That would be particularly true where, as with some of the leading questions here, the purpose is to focus the memory and concentration of a timid or distracted witness on a particular time, place or event. That is not to say that there may not be a fine line between those aims and the risk of false suggestion,
The son’s testimony about his father’s conduct was primarily couched in terms of "touching,” sometimes demonstrated by using a doll, and using the word "private” to designate the genitals and the word "butt” apparently having a dual meaning of either buttocks or the area of the anus, the particular meaning not always being clear from the record. That part of his testimony tending to show defendant’s guilt may thus be summarized as follows: On an unspecified Sunday, the children were at defendant’s house; the son carried a ladder from the garage to the side of the house and climbed it to look in the bathroom window; the son saw defendant put his finger in the daughter’s "private”; later that day both children were in the bathroom with defendant and, after the son had gone to the bathroom, defendant touched his son on his "private” before zipping up his son’s pants and also put his hand inside his son’s butt and touched his daughter (indicating the groin and buttock area); defendant had once touched his son (indicating the genital area) with a nail and had touched his daughter with a nail also; and no one else had ever touched the son the way defendant touched him.
The testimony of the son was the only direct evidence bearing on defendant’s guilt. His testimony was supported by circumstantial evidence: (1) that defendant had the opportunity through his visitation rights to commit the acts, particularly on three occasions, June 18, June 21 and June 24, 1986; (2) that, after each of these visitations with
The testimony of defendant’s ex-wife was that on June 26, 1986, she went to the police with her suspicions and the hairs which she said she had found in the daughter’s diaper on June 18. A detective advised her to take her daughter to a pediatrician, which she did the same day. The pediatrician, Dr. Banfield, had previously examined the daughter in connection with the ex-wife’s prior complaint of sexual abuse by defendant and
Defendant’s ex-wife also testified that sometime thereafter in late June, and after she had questioned the son about his father, the son told her for the first time about defendant’s acts. On July 1, the son was interviewed by a detective and the interview was video taped, but he gave no information indicating sexual abuse by defendant.
McNees testified that she had talked to defendant’s ex-wife before talking to the son. She was aware of the nature of the ex-wife’s accusations against defendant and of an incident related to the prior complaint by the ex-wife against her husband in which she claimed that the son had tried to put his penis into his sister’s mouth and said he did it because that was what daddy did.
A pretrial motion to exclude the testimony of McNees as hearsay was denied. The motion was renewed at trial and was again overruled. It is the contention of the prosecution that the testimony, though hearsay, was admissible under MRE 803(4), which provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) Statements made for purposes of medical treatment or medical diagnosis in connection with treatment. Statements made for purposes of medical treatment or medical diagnosis in connection with 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 necessary to such diagnosis and treatment.
MRE 803(4) removes the bar to admission as to three kinds of hearsay statements: (1) medical history; (2) past or present symptoms, pain or sensation; and (3) the inception or general character of the cause or external source thereof. It does so upon two requirements. In order to justify the admission of the out-of-court statement, its proponent must establish, first, that the statement was made for a particular purpose, i.e., for medical treatment or for medical diagnosis in connection with treatment, and, second, that the statement was reasonably necessary to such diagnosis and treatment. In this second requirement, the Michigan rule is more restrictive than the federal rule, which only requires that the statement be reasonably pertinent to diagnosis or treatment.
The rationale of the rule lies in the first requirement and is founded upon the belief that a person seeking medical treatment has a "motive to disclose the truth because his treatment will in part depend upon what he says.”
Statements describing the inception, cause or external source of symptoms, pain or sensation which enter the realm of attributing fault would seem to be inadmissible under MRE 803(4) for three reasons: (1) the rule allows only statements about the general character rather than of the speciñc character of the cause;
In United States v Nick, 604 F2d 1199 (CA 9, 1979), and United States v Iron Shell, 633 F2d 77 (CA 8, 1980), cert den 450 US 1001 (1981), statements made to physicians by small children as to sexual assaults inflicted upon them were held admissible under FRE 803(4). The court in Iron Shell, describing the basis of the rule, stated:
A two-part test flows naturally from this dual rationale: first, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis or treatment. [Id., p 84.]
The court, however, also went on to say:
It is important to note that the statements concern what happened rather than who assaulted her. The former in most cases is pertinent to diagnosis and treatment while the latter would seldom, if ever, be sufficiently related.[15 ] [Id., p 84.]
Four Michigan cases have considered the appli
In re Rinesmith, 144 Mich App 475; 376 NW2d 139 (1985), lv den 424 Mich 855 (1985), an appeal from a probate court’s termination of parental rights, was decided in reliance on Wilkins and likewise turned on the question of whether a statement of a child, identifying her father as the
In People v Zysk, 149 Mich App 452; 386 NW2d 213 (1986), a nurse testified to the account of sexual assault made by the victim on admission to a hospital emergency room for treatment, which account included an identification of defendant as her assailant. In reliance on Wilkins, this Court rejected the defendant’s argument that the statement was not "reasonably pertinent.”
In re Freiburger, 153 Mich App 251; 395 NW2d 300 (1986), was a parental rights termination appeal wherein the appellant-father allegedly sexually abused his daughter. A "psychiatric social worker” was allowed to testify to nonverbal hearsay, a demonstration using so-called anatomically correct dolls, by the daughter as to her father’s acts and such testimony was held admissible under MRE 803(4) and Wilkins. Again, the opinion is troubling because of its failure to discuss whether there was evidence in the record demonstrating that the child had problems requiring medical treatment, whether that was the purpose for which the statement was made,
In summary, before a hearsay statement is found to be admissible under MRE 803(4), the proponent thereof has the burden of laying a foundation by which the trial judge, pursuant to MRE 104(a),
In the instant case, none of these things was
I cannot agree with my colleagues that the receipt into evidence of this hearsay was harmless error. To say that there was overwhelming circumstantial evidence of guilt ignores the fact that the
We must determine "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction”, that is, whether it might have aided in convincing an otherwise undecided juror of the defendant’s guilt beyond a reasonable doubt. If it is reasonably possible that, in a trial free of the error complained of, even one such jury member might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried. [People v Swan, 56 Mich App 22, 33; 223 NW2d 346 (1974).]
Entirely apart from other error herein, the testimony of Nurse McNees was so prejudicial as to
Two other claims of error must be considered. One involves improper prosecutorial conduct by questioning defendant so as to suggest that he had a natural preference for sodomy. On objection, the prosecutor conceded that he had no evidence that defendant engaged in anal sex or homosexual conduct. The insinuation of unfounded prejudicial innuendo on cross-examination is not merely an
Neither do I agree with my colleagues on the admissibility of the so-called expert testimony of the state police laboratory specialist. He testified that he compared the hairs which defendant’s ex-wife said she found in the daughter’s diaper with hair specimens taken from defendant, that microscopic examination showed that the specimens were similar in that they were characteristic of Caucasian pubic hairs, and that, therefore, they could have come from the same source. He acknowledged that he could not say that there was any certainty or probability that they came from the same source. Timely and appropriate objection was made to that testimony, which objection should have been sustained under MRE 702, MRE 401 and MRE 403.
Under MRE 702, if the trial court determines that recognized scientific, technical, or other specialized knowledge does exist in a given field, it may allow an expert to testify as to his findings or opinion if that knowledge will assist the trier of fact either to understand the evidence or to determine a fact in issue. The threshold question of the state of scientific expertise in hair comparison under the Frye-Davis test
If that testimony has any relevance at all, that relevance is outweighed by the prejudicial effect of superficial scientific testimony from a witness characterized as an expert. As such, it should be excluded under MRE 403.
Various panels of this Court have demonstrated some inconsistency in the consideration of circumstantial evidence of identity from so-called scientific comparison tests of hair, blood and semen and as to what, if any, proof of probability is required to make such evidence admissible. See, e.g., People v Sturdivant, 91 Mich App 128; 283 NW2d 669 (1979), lv den 407 Mich 933 (1979); cf. People v Horton, 99 Mich App 40; 297 NW2d 857 (1980); People v White, 102 Mich App 156; 301 NW2d 837 (1980); People v Camon, 110 Mich App 474; 313 NW2d 322 (1981); People v Hayden, 125 Mich App 650; 337 NW2d 258 (1983); People v Goree, 132 Mich App 693; 349 NW2d 220 (1984); People v Furman, 158 Mich App 302; 404 NW2d 246 (1987), lv den 429 Mich 851 (1987).
It is not necessary, however, to engage in the dialogue on degrees of probability, for no evidence of probability was shown here. However, I must disagree with Horton, Goree, and Furman that any evidence suggesting the possibility of identity is admissible under MRE 401. MRE 401 defines “relevant evidence” as “evidence having any ten
I would reverse._
Defendant’s ex-wife had instigated a previous investigation of alleged sexual abuse by defendant of their son, which investigation was dropped for lack of evidence and in the course of which defendant passed a polygraph examination. Reference to the "lie-detector test” by the ex-wife has been raised as a ground for appeal but I find no error. The reference was clearly inadvertent and in a context in
MCL 600.2163; MSA 27 A.2163. And see Washburn v People, 10 Mich 372 (1862); McGuire v People, 44 Mich 286; 6 NW 669 (1880); People v Beech, 129 Mich 622; 89 NW 363 (1902); People v Minchella, 268 Mich 123; 255 NW 735; 93 ALR 805 (1934). Whether the statute has been overridden by MRE 601 has not been considered since the adoption of the Rules of Evidence [cf. James v Dixon, 95 Mich App 527; 291 NW2d 106 (1980)], but MRE 601 clearly contemplates that the trial court must consider competency in this and other situations involving mental capacity.
Concerns as to whether a young child may be a competent witness involve many factors which go both to the capacity to recall and recount accurately and completely (i.e., susceptibility to false suggestion, memory, vocabulary, imagination, attention span, fear and timidity) and the capacity to make moral and practical judgments as to truthfulness and the significance of the facts regarding which the testimony is sought.
It has been suggested that judicial concern about the competency of young children to be witnesses lies less in a fear of inaccuracy than in a distrust of a jury’s ability to assay such testimony. McCormick, Evidence (3d ed), § 62, p 156. If so, perhaps the emphasis is wrong; and, how to explain the dearth of reported cases in which child witnesses are disqualified from testifying. It virtually never happens. Weihofen, Testimonial Competence and Credibility, 34 Geo Wash L Rev 53 (1965).
In another instance, to a question that was leading, an objection was made on other grounds, the overruling of which was not erroneous.
See Coon v People, 99 Ill 368, 370 (1881).
The so-called "protective services video” was offered in evidence. While the video portion could be seen, the audio portion was defective and could not be heard.
Defendant’s ex-wife testified to this incident. McNees testified that she asked the son about such an act and he denied it, that she persisted, saying, "He did it before, didn’t he? Did he do it this time too? What did he put in your mouth?” The son answered, “I don’t know,” and became upset.
Prior to the adoption of the Michigan Rules of Evidence, hearsay statements of medical histories, past pain or symptoms, and causes thereof were inadmissible. Hearsay statements of contemporaneous condition by the declarant were admissible except when made to the physician for purposes of litigation. See the Committee notes.
Meaney v United States, 112 F2d 538, 540 (CA 2, 1940).
This view, of course, had been rejected by Michigan prior to the adoption of the Michigan Rules of Evidence. Lacas v Detroit City R Co, 92 Mich 412; 52 NW 745 (1892). See generally 6 Wigmore, Evidence (Chadboum rev), §§ 1719-1720, pp 103-113.
There are frequent statements to the effect that hearsay deemed sufficiently reliable to be depended upon in diagnosis and treatment ought to be sufficiently reliable to be considered as evidence, e.g., 4 Weinstein, Evidence, § 803(3)[5], p 803-129; United States v Iron Shell, 633 F2d 77 (CA 8, 1980), but that is a non sequitur probably borrowed from cases dealing with business records and opinion exceptions to the hearsay rule such as for a laboratory or x-ray report relied upon by the treating or diagnosing physician and offered under MRE 803(6), or relied upon by an expert witness under FRE 703 which, contrary to MRE 703, allows the expert to rely on facts or data which need not be admissible in evidence.
"Thus a patient’s statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light.” Advisory Committee’s Note, FRE 803(4).
In United States v Narciso, 446 F Supp 252, 289 (ED Mich, 1977), the court held that a declarant’s statement as to who was responsible was not for the purpose of treatment but was, to the contrary, accusatory in nature, thus lacking the inherent reliability of a statement made for the purpose of obtaining treatment.
Bradbury v Ford Motor Co, 123 Mich App 179, 187; 333 NW2d 214 (1983); Roberts v Hollocber, 664 F2d 200 (CA 8, 1981).
The statements recounted in Nick and Iron Shell did not identify the assailant. Consistent with this dictum in Iron Shell, hearsay statements as to the identity of an assailant have been excluded under FRE 803(4) or similar state rules either because such information is not "sufficiently related” (reasonably pertinent) to medical diagnosis and treatment or because the statement was not made by the declarant for the purpose (with the motive) of obtaining medical treatment. See State v True, 438 A2d 460 (Maine, 1981); Hassell v State, 607 SW2d 529 (Tex Crim App, 1980); State v Brubaker, 184 Mont 294; 602 P2d 974 (1979); State v Jeffers, 135 Ariz 404; 661 P2d 1105 (1983); United States v Narciso, supra.
Contra, State v Bouchard, 31 Wash App 381; 639 P2d 761 (1982), a case similar to People v Wilkins, 134 Mich App 39; 349 NW2d 815 (1984), and Goldade v State, 674 P2d 721 (Wy, 1983), cert den 467 US 1253 (1984), where, in a split decision, defendant’s conviction, based solely on the testimony of a physician as to statements made by a child who had been held incompetent to testify, was affirmed.
The Court also spoke of recommended removal of the child from the home as "part of the treatment,” though it may be questioned whether this constitutes "medical treatment.” See also United States v Renville, 779 F2d 430 (CA 8, 1985), State v Smith, 315 NC 76; 337 SE2d 833 (1985), and State v Aguallo, 318 NC 590; 350 SE2d 76 (1986).
Wilkins and similar cases from other jurisdictions have been the subject of criticism. "Concern over the recent revelations of child sex abuse have caused several state courts to expand, if not distort, the concept of diagnosis or treatment.” Graham, Handbook of Federal Evidence (2d ed, 1986), § 803.4, p 828, n 4.
"Angel suffered internal pain. Angel had been brought to Dr. Daniel’s office on a prior occasion in the company of her parents and dss personnel. Angel could, therefore, logically conclude that Dr. Daniel was in a position to help her in regard to physical problems arising out of problems within her family. Angel could look to Dr. Daniel not only to alleviate the immediate pain but to take some action to intervene and prevent the pain from recurring in the future. Viewed in this light, revelation of the fact that the pain was caused by sexual abuse and that that abuse was inflicted by a member of her family was reasonably necessary to obtain relief.” Rinesmith, p 479. Angel was four years old.
Defendant posed his argument using the language of FRE 803(4) rather than the "reasonably necessary” language of MRE 803(4), an error which the Zysk opinion did not note or correct, an oversight perhaps induced by language in Wilkins, quoted at p 457 of Zysk, that "it must be reasonable,” rather than reasonably necessary, "for the physician to rely on the information in diagnosis and treatment.”
As in Rinesmith, the opinion seems to mingle the concepts of the declarant’s motive and of medical necessity for treatment, getting into the motives of the questioner.
Citing Galli v Reutter, 148 Mich App 313; 384 NW2d 43 (1985), and Advisory Committees Note to PRE 803(4).
State v Brubaker, 184 Mont 294; 602 P2d 974 (1979). I note that the offer of proof on the preliminary questions should ordinarily, under MRE 104(c), be conducted out of the presence of the jury. People v Creith, 151 Mich App 217, 227; 390 NW2d 234 (1986).
Dr. Banfield testified that defendant’s daughter was referred to the clinic because Dr. Hickok was a specialist in child abuse whose testimony in court would be given greater weight than what he (Dr. Banfield) would say. He also testified that the referral was for evaluation and not for treatment and that he had no knowledge of any treatment plan for the daughter.
While Nurse McNees said that the purpose of her interview was to focus the subsequent physical examination by Dr. Hickok and to formulate a medical treatment plan and also for possible referral for counseling, one may question the credentials of a practical nurse to provide the foundation of objective proof of medical necessity. She also testified to a mistaken interpretation of the Child Protection Act, MCL 722.621 et seq.; MSA 25.248(1) et seq., which she thought compelled her to obtain evidence of abuse and the identity of the abuser.
Dr. Hickok gave no testimony bearing on the medical necessity of such information or to indicate that there was any contemplated treatment.
A further concern about the hearsay statements of young children is apparent when the out-of-court statements are not spontaneous but result from a systematic or professional interrogation about the subject matter of litigation. The potential for false suggestion which is a peril of leading questions is obviously greater when the questioning is done without court or equivalent supervision and safeguards.
A child psychiatrist testified for the defense herein and expressed the opinion that McNees’ interview was so slanted and suggestive that not only were the statements obtained from the son unreliable but that any statements he might make thereafter would be contaminated by ideas planted by McNees, an effect which might be cumulative or reinforced by similar interrogation of the child by other persons before or after the McNees interview. It is, perhaps, a peril similar to that which is of concern in cases where adult witnesses have been hypnotized. Cf. People v Gonzales, 415 Mich 615; 329 NW2d 743 (1982).
Frye v United States, 54 US App DC 46; 293 F 1013 (1923); People v Davis, 343 Mich 348; 72 NW2d 269 (1955). And see People v Young, 418 Mich 1; 340 NW2d 805 (1983).
And see United States v Massey, 594 F2d 676 (CA 8, 1979); State v Carlson, 267 NW2d 170 (Minn, 1978); State v Scarlett, 121 NH 37; 426 A2d 25; 23 ALR4th 1192 (1981).
See also the dissent in People v Ledura Watkins, 406 Mich 954 (1979), and the concurring opinion of Justice Boyle in People v Young, 418 Mich 1; 340 NW2d 805 (1983), that if the blood tests there involved were established as scientifically reliable, there would still be a relevance question to be resolved.
Reference
- Cited By
- 23 cases
- Status
- Published