The Use of the Medical Diagnosis or Treatment Exception to Hearsay in Domestic Violence Cases: the Admissibility of Testimony from Medical Providers About Statements Regarding the Identity of an Alleged Perpetrator Under Nebraska Rule of Evidence 803(3)

• Jurisdiction: Nebraska,United States
• Citation: Vol. 51
• Publication year: 2022

51 Creighton L. Rev. 603. THE USE OF THE MEDICAL DIAGNOSIS OR TREATMENT EXCEPTION TO HEARSAY IN DOMESTIC VIOLENCE CASES: THE ADMISSIBILITY OF TESTIMONY FROM MEDICAL PROVIDERS ABOUT STATEMENTS REGARDING THE IDENTITY OF AN ALLEGED PERPETRATOR UNDER NEBRASKA RULE OF EVIDENCE 803(3)

THE USE OF THE MEDICAL DIAGNOSIS OR TREATMENT EXCEPTION TO HEARSAY IN DOMESTIC VIOLENCE CASES: THE ADMISSIBILITY OF TESTIMONY FROM MEDICAL PROVIDERS ABOUT STATEMENTS REGARDING THE IDENTITY OF AN ALLEGED PERPETRATOR UNDER NEBRASKA RULE OF EVIDENCE 803(3)

Faith Kjelstrup-'19

I. INTRODUCTION

Domestic violence perpetrators have acquired the reputation of using bullying tactics and extortion to instill fear in their victims, ensuring victims refuse to testify out of fear for their safety.(fn1) The Nebraska Legislature has expressed concern regarding the help that domestic violence victims receive through Nebraska's criminal justice system.(fn2) When a victim refuses to testify, the State is faced with a dilemma in proving the defendant committed the alleged crime, and therefore the State is unable to provide the protections the legislature has expressed is an issue for statewide concern.(fn3) However, the State may still be able to prove a defendant is guilty even though a victim refuses to testify, thus affording the desired protections to domestic violence victims.(fn4) The medical diagnosis or treatment exception to hearsay has become a tool utilized in court that allows the identity of an alleged perpetrator into evidence in domestic violence cases.(fn5)

This Note will first state background information regarding the Nebraska Rules of Evidence governing hearsay.(fn6) This Note will then provide facts and background to Nebraska Supreme Court cases that used the medical diagnosis or treatment exception as a tool to admit the identity of a child sexual abuse perpetrator into evidence.(fn7) Next, this Note will detail cases where parties used the medical diagnosis or treatment exception to admit the identity of perpetrators of domestic violence into evidence.(fn8) Then, this Note will provide cases where courts held the opposite and determined the identity of perpetrators in domestic violence cases were not admissible under the exception.(fn9) Finally, this Note will argue why the medical diagnosis or treatment exception has logical support to admit the identity of perpetrators in domestic violence cases and will urge the Nebraska Supreme Court to adopt this reasoning.(fn10)

II. BACKGROUND

A. THE MEDICAL DIAGNOSIS OR TREATMENT EXCEPTION TO THE HEARSAY RULE OF EVIDENCE IN NEBRASKA

1. The Nebraska Hearsay Rules

Nebraska Revised Statute section 27-801 ("Rule 801") defines hearsay as a statement made by someone other than a declarant during his or her testimony at a trial or hearing that is offered as evidence to demonstrate the truthfulness of the matter alleged.(fn11) Nebraska Revised Statute section 27-802 ("Rule 802") provides the general rule that statements constituting hearsay are inadmissible.(fn12)

However, Nebraska Revised Statute section 27-803 denotes several exceptions where hearsay testimony would be otherwise excluded as stated in Rule 802.(fn13) More specifically, Nebraska Revised Statute section 27-803(3) ("Rule 803(3)") provides an exception to the hearsay rule that allows statements to be admitted into evidence when the statements are for the purpose of medical diagnosis or treatment.(fn14) Although the declarant may be available to testify, the rules allow testimony from third parties regarding a declarant's statement so long as the statement was reasonably pertinent for medical treatment or diagnosis.(fn15)

2. State v. Vaught: The Nebraska Supreme Court Held Testimony from a Medical Provider Regarding Identity Is Admissible Under Rule 803(3) in a Child Sexual Abuse Case

In State v. Vaught ,(fn16) the Nebraska Supreme Court concluded the identity of a perpetrator in a child sexual abuse case was admissible under Rule 803(3), the medical diagnosis or treatment exception, because the statements regarding identity were the type delineated by Rule 803(3).(fn17) In Vaught , the State charged Darrel J. Vaught with first degree sexual assault of a child.(fn18) Testimony during a bench trial in the Douglas County District Court showed Vaught digitally penetrated a four-year-old female's vagina.(fn19) After staying at her grandparents' house, where Vaught resided, the victim's stepmother observed discoloration and inflammation of the victim's genital area.(fn20) Those events led to a conversation with the victim about what occurred during the stay, and she indicated Vaught caused the injury.(fn21) After arriving at the emergency room, Dr. Larry Lamberty performed an examination of the victim's genital area.(fn22) Dr. Lamberty testified that he had identified himself as a doctor to the victim and was going to administer a medical examination.(fn23) Furthermore, Dr. Lamberty testified he believed the victim understood that he was a doctor, and was aware she was in a hospital.(fn24)

Vaught objected to Dr. Lamberty's testimony regarding the victim's statements on hearsay grounds.(fn25) The trial court overruled Vaught's objections and allowed Dr. Lamberty to proceed with his testimony.(fn26) Dr. Lamberty testified that during his examination he asked the victim about her injuries, and she replied that Vaught digitally penetrated her vagina.(fn27) A subsequent examination by another doctor corroborated the victim's allegation of digital penetration.(fn28)

The court found Vaught guilty of first degree sexual assault of a child and sentenced him to six to ten years in prison.(fn29) Vaught appealed to the Nebraska Court of Appeals, and the court subsequently affirmed his conviction.(fn30) In doing so, the court reasoned that the Nebraska Supreme Court had previously ruled on facts similar to Vaught that statements made to medical professionals by a child sexual assault victim were admissible under Rule 803(3).(fn31) Furthermore, the court acknowledged that Dr. Lamberty's testimony indicated that identity is important in treating a patient's overall mental health.(fn32) Moreover, Dr. Lamberty testified that knowing the identity of the offender is important to ensure the patient's safety and to avoid entrusting the patient to a potential perpetrator.(fn33)

On appeal to the Nebraska Supreme Court, the court reviewed the court of appeals' affirmance of the trial court's ruling that admitted Dr. Lamberty's testimony regarding Vaught's identity under Rule 803(3).(fn34) The Nebraska Supreme Court affirmed the court of appeals' ruling and concluded that Dr. Lamberty's testimony identifying Vaught as the perpetrator was admissible under Rule 803(3).(fn35) The court began its analysis with a premise promulgated by the United States Court of Appeals for the Eighth Circuit that the medical diagnosis or treatment exception is founded on the notion that a person has a selfish motive when disclosing information to a medical professional in order to receive the correct treatment for injuries sustained.(fn36) Because this reasoning focused on the victim's state of mind, the court expressly declined to adopt the Eighth Circuit's rule, but noted this rationale helped guide the decision in Vaught .(fn37)

The court reasoned that for testimony to be admissible under Rule 803(3), a party must show three things: (1) the statement was reasonably pertinent to medical diagnosis or treatment; (2) the doctor reasonably relied upon the statement while make a medical diagnosis or treatment; and (3) the purpose of the statement was to provide assistance to a medical professional for the diagnosis or treatment of the patient.(fn38) The court also noted that Rule 803(3) allows for circumstantial evidence to reasonably infer a declarant's state of mind at the time of the statement.(fn39)

The court deemed the evidence sufficient for the trial court to admit Dr. Lamberty's testimony regarding the victim's statement made about the perpetrator's identity under Rule 803(3).(fn40) The court stressed the importance that Dr. Lamberty testified that the victim understood he was performing a medical examination and the questions asked were to promote medical treatment, which fulfilled the re-quirement that the statement provide assistance to a medical provider for treatment.(fn41) Because of those factors, the court reasoned that the victim was motivated to make the statements in order to gain medical treatment.(fn42)

The court further inferred from Dr. Lamberty's testimony that he reasonably relied upon the statements proffered by the victim in order to administer medical treatment.(fn43) Moreover, the statement was reasonably pertinent to the victim's medical treatment because the identity of the perpetrator was a consideration for the safety and mental health of the victim.(fn44) Finally, the court repeated that Dr. Lamberty's testimony was adequate to deduce the victim's state of mind when offering the statement to Dr. Lamberty.(fn45) Therefore, the statement identifying Vaught as the perpetrator met all of the requirements to satisfy admission under Rule 803(3).(fn46) Based on the foregoing reasons, the Nebraska Supreme Court affirmed the court of appeals' ruling that Dr. Lamberty's testimony regarding Vaught's identity was admissible under Rule 803(3).(fn47)

3. State v. Vigil: The Nebraska Supreme Court Determines a Medical Provider's Testimony About...