Oregon Supreme Ct - July 16, 2015

by: Abassos and Tyler Williams • July 16, 2015 • no comments

Vouching – Sex Abuse - New Test for the Admissibility of a Medical Diagnosis of Sex Abuse Where Physical Evidence Is Present

There is sufficient physical evidence of abuse so that a medical diagnosis of sexual abuse ordinarily is admissible under OEC 403 if

(1) physical evidence meaningfully corroborates the alleged type of abuse; (2) the expert significantly relies on that physical evidence in making the diagnosis of sexual abuse; and (3) the causal relationship between the physical evidence and the diagnosis is sufficiently complex such that a lay trier of fact cannot assess the connection as well as an expert. When those factors are present, the diagnosis tells the jury something that it could not determine as well on its own; thus, the probative value of the diagnosis ordinarily will not be substantially outweighed by the danger of unfair prejudice.

Here, in a trial for child sex abuse, the trial court did not err in admitting a Kids Intervention and Diagnostic Service Center’s doctor’s diagnosis, because there was:

• Corroboration: the allegations were of touching and rubbing that woke the complainant up and the medical examination revealed redness, swelling and abrasion of the vaginal area. The doctor testified that there was no likely explanation other than the allegations.
• Reliance: the doctor testified that the redness, swelling and abrasions were "highly concerning" and important to the diagnosis because the examination occurred the same day as the alleged abuse and there were no other explanations for the injuries.
• Complexity: the diagnosis was based on a medical understanding of a child's physiology, rather than on criteria that laypeople are expected to use in their ordinary experience. A layperson could understand there are various possible causes for the redness, swelling and abrasions, but not that abuse was the likely cause.

Because sufficient physical evidence existed for the diagnosis, the doctor was also allowed to discuss assessments and criteria unrelated to the physical evidence that would otherwise be considered vouching:

When a medical diagnosis of child sexual abuse is adequately supported by physical evidence of abuse and is otherwise admissible, short of a direct comment or a statement that is tantamount to stating that the child is telling the truth, the expert’s testimony concerning the diagnosis ordinarily can include a description of the evaluative criteria underlying the diagnosis and the characteristics of the child that led to the diagnosis.

Here, the doctor was allowed to talk about the complainant's statements being "spontaneous", "consistent with earlier statements", "descriptive", "contextual", "having a consistency of core details" and "given in more than one media form". Affirmed. State v. Beauvais 357 Or 524 (2015)