Statements made for medical treatment and/or diagnosis, even though made out of court, are an exception to Tennessee’s exclusionary hearsay rule and are generally admissible if relevant and not excluded for some other evidentiary reason. This of course does not mean that the fact finder in a criminal trial is required to believe the veracity of the statements. It just means the statements can be considered for whatever weight the trier of fact elects to attribute to them. In the recent case of State v. Howard, E2014-01510-CCA-R3-CD (Tenn.Crim.App. 8-4-2015), the Tennessee Court of Criminal Appeals rejected a challenge to the admissibility of statements contained in a medical record in which a child described acts of sexual abuse inflicted upon her.
In the Howard case, the Defendant had been convicted of multiple counts of rape of a child. Among the issues on appeal, the Defendant challenged the trial court’s decision to allow the State to introduce into evidence statements contained in medical reports, in which the victims described acts of abuse and identified the defendant as having committed those acts. The Defendant described the contents of the reports as “hearsay within hearsay,” as they contained information prepared out of court and ostensibly obtained from witnesses (the child victims) out of court. The reports themselves however were considered admissible under the business records exception, and the statements within them fit the Tennessee hearsay exception of statements made for medical diagnosis or treatment (as medical treatment of a sexual abuse victim necessarily involves asking the victim, if possible, what exactly was done and who did it).
The Defendant also challenged the evidence as violating his right to confront witnesses in court through cross examination. This challenge failed for two reasons. First, statements made to health care professionals for medical diagnosis or treatment are not considered ‘testimonial,’ and therefore not subject to the right of confrontation. Second, the victims whose statements were contained within the reports did testify at the trial and were therefore available for cross examination about those statements from defense counsel.
For more information regarding the evidentiary hearsay rule and its exceptions, contact Hindman & Associates.