Tuesday, February 8, 2005

Child hearsay in; "expert" testimony out

A nine-year-old told her father that her step-grandfather had been touching her sexually. She then told her mother and a police sergeant. The girl testified at trial. The step-grandfather moved to exclude the testimony of the three adults, arguing that "the repetitive and cumulative hearsay overemphasized [the girl's] trial testimony and aroused an emotional, rather than rational, response from the jury."

On appeal, Division 3 observed that child hearsay is admissible under the circumstances (see RCW oA.44.120). But was it prejudicial under ER 403? No, it was not an abuse of discretion for the trial court to admit it.

A physician's assistant who had examined the child testified that he found no physical evidence of sexual abuse, but that sexual abuse was "probable." He based his opinion on a published diagnostic method for child abuse that scores abuse as "probable" if the child's report is clear, concise, explicit, and detailed.

Was this opinion admissible expert testimony? Division 3 held not. The diagnostic method does not satisfy the criteria of Frye. Moreover, admitting the testimony "usurped the exclusive function of the jury to weigh the evidence and determine credibility. It was not harmless error."

State v. Dunn, --- P.3d ----, 2005 2WL 249236 (Wash. App. Feb. 3, 2005).

Filed in: , , , , , , ,

No comments: