Friday, October 23, 2009

"Counseling" is treatment under Evid.R. 803(4) (10 23 2009)

Ohio’s Second District Court of Appeals reversed convictions for rape and gross sexual abuse of a child under thirteen because of hearsay and confrontation clause problems. Most interesting was the Appellate Court’s interpretation of what is included in "statements for purpose of medical diagnosis or treatment."

The complainant, who did not testify at trial, received counseling from a school psychologist. The complainant first told the psychologist she had been raped, but later she told the psychologist that she had only dreamt she was raped, and finally she told the psychologist that she made up the allegations.

Whether the child was actually violated is irrelevant for legal purposes because the courts deal with "evidence" and not reality as you can read by clicking here.

The trial judge would not allow the psychologist to testify about what the victim told her because it was hearsay (an out of court statement offered for the truth of the matter asserted). The trial court determined that the statements were not made to the school psychologist "for purposes of medical diagnosis or treatment" because the psychologist was not trying to diagnose or treat the complainant. The psychologist was just "counseling" the complainant.

But in reversing the convictions and remanding for a new trial, the Second District Court of Appeals stated "[r]estricting the meaning of diagnosis or treatment in Evid.R. 803(4) in too narrow a way undercuts the function of nurses, psychologists, therapists, social workers and numerous other individuals who routinely treat victims of sexual abuse for physical, mental and emotional problems, often by counseling them." State v. McNew, 2009-Ohio-5531.

Contact me if you need an Ohio criminal defense lawyer for your appeal or other post-conviction matter by going to my Web site and filling in the "contact me" form.
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