People v. Meeboer

484 N.W.2d 621, 439 Mich. 310

• Court: Michigan Supreme Court
• Decided: May 5, 1992
• Docket: Docket Nos. 88115, 88565, 88931, (Calendar Nos. 9-11)
• Status: Published

Opinions

Riley, J.

We consolidated these three cases to determine whether error requiring reversal occurred by the admission of hearsay statements made to medical personnel pursuant to the hearsay exception of MRE 803(4).¹ See 436 Mich 880 (1990). These cases present an opportunity for this Court to clarify the interpretation and application of MRE 803(4) to hearsay statements made to physicians by child victims of sexual abuse.

Because we believe that neither the rationale supporting the medical treatment exception to the hearsay rule, MRE 803(4), nor our decision in LaLone2 requires the exclusion of all statements made to treating medical health care providers by the victims of child sexual abuse which identify their assailants, we affirm the convictions in People v Conn and People v Meeboer. We affirm the Court of Appeals reversal of defendant’s conviction in People v Craft because we believe the evidence does not sufficiently support admission of the hearsay statements under MRE 803(4).

FACTUAL BACKGROUND

PEOPLE v CONN

This case involves an allegation of criminal sexual conduct against defendant, Bobby S. Conn, for allegedly committing acts of sexual intercourse with the complainant who was seven years old at the time. She and her mother were residing in an apartment with defendant at the time of the alleged sexual assault on or about June 1, 1984.

Complainant was taken by her mother to see Dr. Samuel Scheinfield on February 16, 1984, after she complained of pain in her vaginal area.³ Dr. Scheinfield conducted an examination and was informed by complainant’s mother that the child had injured herself.⁴ When questioned by the doctor, complainant first indicated she fell upon her bicycle; she then indicated a boy, who was later determined to be approximately eighteen to twenty years old, had been "messing” with her; finally she indicated that defendant had sexually abused her.

Following the doctor’s notification to the proper authorities, the police interviewed the defendant. He was subsequently charged with criminal sexual conduct in the first degree. MCL 750.520b(1)(a); MSA 28.788(2)(1)(a).

At trial, the complainant testified that while residing with defendant and her mother, defendant would come into her bedroom dressed in his long johns and attempt to commit acts of sexual intercourse through the opening in the bottom half of his long johns. Complainant admitted she had first informed Dr. Scheinfield that a different individual had "messed” with her, but after her mother told her to be truthful with the doctor, she identified defendant, to whom she referred as her "dad,” had "messed” with her.

Defendant did not testify or present any witnesses on his behalf. The jury rendered a guilty verdict against defendant.

Defendant appealed his conviction in the Court of Appeals, arguing that the medical testimony regarding statements made by the complainant to Dr. Scheinfield had been improperly admitted because it constituted inadmissible hearsay and was not within the medical treatment exception, MRE 803(4). The Court of Appeals affirmed the conviction, holding that MRE 803(4) was properly applied in this instance because the statements made by the complainant to the doctor were reasonably necessary to make complete medical treatment available to this particular victim, namely a child sexual abuse victim.⁵ In lieu of granting leave to appeal, this Court remanded the case to the Court of Appeals for reconsideration in light of our decision in People v LaLone, 432 Mich 103; 437 NW2d 611 (1989).⁶

Upon remand, the Court of Appeals determined that the statements were admitted in violation of the rationale expressed in LaLone, and the defendant’s conviction was reversed.⁷

We granted leave to appeal,⁸ limited to the issue whether error requiring reversal occurred in the admission, under MRE 803(4), of statements made by the victim to medical personnel. This case was argued and submitted with People v Meeboer and People v Craft

PEOPLE v MEEBOER

The Meeboer family babysat the six-year-old complainant at their residence from January 9 through January 11, 1986. She alleged that during this time period she was sexually penetrated by the twenty-year-old defendant while his mother, father, and sister were absent from the house.

Eleven days after the date of the alleged occurrence, complainant’s aunt and uncle were babysitting the complainant at their home and, while bathing complainant, observed swelling and redness around the vaginal area. Following further examination and questioning by her aunt, after initially stating that nobody had done anything to her, complainant disclosed to her aunt and uncle that defendant had "messed” with her.

As soon as complainant’s mother was informed of the sexual assault, including the identity of the perpetrator, she notified the police. Complainant was then taken to the hospital, where she was referred to Dr. Karen Bentley, a specialist in the area of child sexual abuse.

Dr. Bentley performed an examination of the complainant on January 22, 1986, which included a physical examination and a recording of the complainant’s medical history. The doctor concluded that sexual penetration had occurred. Charges of criminal sexual conduct in the first degree were brought by the Genesee County Prosecuting Attorney’s Office against defendant. MCL 750.520b(1)(a); MSA 28.788(2)(1)(a).

The trial court admitted, over objection, the testimony of Dr. Bentley relaying complainant’s identification of the defendant as her abuser. The trial court determined that this hearsay evidence was reasonably necessary for purposes of medical treatment or diagnosis and was therefore within the medical treatment exception to the hearsay rule, MRE 803(4). The doctor’s brief testimony regarding complainant’s statements describing the incident corroborated the testimony rendered by the complainant.

Defendant presented an alibi defense after the prosecution completed its case in chief. He attempted to establish that he was never alone with the complainant for the entire time of January 9 through 11, 1986. The jury found defendant guilty of first-degree criminal sexual conduct on April 16, 1986.

Defendant appealed his conviction in the Court of Appeals alleging, among other issues, error in the admission of the statements by the complainant to Dr. Bentley regarding the identification of defendant. The Court of Appeals, relying upon a line of Michigan⁹ and federal¹⁰ case law, affirmed the finding of the trial court that this type of statement is admissible as substantive evidence pursuant to MRE 803(4) because it is necessary for the diagnosis and treatment of a child sexual assault victim.¹¹ We remanded the case to the Court of Appeals for reconsideration in light of our decision in People v LaLone, supra.12 Upon remand, the Court of Appeals affirmed its earlier holding, relying on four factors to distinguish the facts of this case from those in LaLone, finding that the victim’s statements regarding identification were admissible.¹³

We granted defendant’s application for leave to appeal.¹⁴

PEOPLE V CRAFT

This case involves allegations of criminal sexual conduct against defendant, Theodore R. Craft, for allegedly committing acts, of sexual intercourse with the complainant, his four-year-old stepdaughter. It is alleged that on March 25, 1984, the complainant was sexually assaulted in the bedroom of her mother and defendant-stepfather.

Complainant’s school teachers noticed that complainant urinated frequently and that she had a discharge in her underwear. They contacted protective services regarding suspected child abuse. On March 29, 1984, complainant was taken to a clinic by her mother. Dr. David Cooke performed a physical examination resulting in a determination, based upon the vaginal examination and discussion with the complainant, that sexual abuse had occurred. The doctor reported his finding of sexual assault to proper authorities, and the child was removed from defendant’s residence and placed in a foster home. During the trial, defense counsel elicited information from the doctor that, in addition to stating that a boy had touched her in the vaginal area while she was at home, complainant had also informed him that a boy who lived in another house had touched her and put something on her vagina. Complainant also made conflicting statements to Dr. Cooke regarding whether it was a boy or girl who committed the alleged acts. All this information was admitted into evidence through the medical hearsay exception, MRE 803(4), and reliance by the trial court on the Court of Appeals decision of People v Wilkins, 134 Mich App 39; 349 NW2d 815 (1984).

On May 23, 1984, complainant was taken to Dr. Barrett by the foster mother to determine the source of a discharge she had observed in the complainant’s underwear. At this examination, Dr. Barrett found that the vaginal lips of complainant were more gaping than those found in most children her age, although not sufficiently pronounced to indicate sexual activity. The doctor also concluded from her examination that there were no signs of venereal disease and that the hymen had been broken. Dr. Barrett then questioned complainant about whether anybody had done anything to her in the genital area, and thereby learned the identity of defendant. Defendant was charged with violation of MCL 750.520b(1)(a); MSA 28.788(2)(1)(a) on July 6, 1984.

Dr. Barrett testified at trial regarding the statements made by the complainant identifying defendant as the perpetrator of the sexual assault. The doctor’s testimony is consistent with the complainant’s in-court version identifying defendant as the assailant and describing defendant’s conduct during the assault. The doctor stated that the information regarding the sexual assault, as communicated by the complainant, was related to the rendering of proper medical treatment to the complainant. The trial court permitted the doctor’s testimony to be admitted on the basis of the medical treatment exception, MRE 803(4).

Defendant attempted to assert an alibi defense by bringing in witnesses to establish that he was not alone, and had not had an opportunity to be alone, with complainant in his bedroom. Defendant also testified on his own behalf and essentially reaffirmed, that he could not have committed the sexual assault without it being in the presence of someone in the household, and he further denied that any sexual assault occurred. The jury returned a guilty verdict on October 17, 1984.

Defendant appealed his conviction in the Court of Appeals, which reversed in a short per curiam opinion.¹⁵ Relying on our decision in LaLone, supra, the Court of Appeals held that the testimony by Dr. Barrett was inadmissible hearsay and a new trial was required. The dissent opined that the statements by the victim to the physician had been properly admitted into evidence and cited as authority the dissent in People v Conn (On Remand) and People v Meeboer (On Remand). This Court granted the prosecutor leave to appeal in order to resolve the apparent conflict between these cases.¹⁶

ANALYSIS

I

Exceptions to the hearsay rule are justified by the belief that the hearsay statements are both necessary and inherently trustworthy. See Solomon v Shuell, 435 Mich 104, 119; 457 NW2d 669 (1990); 5 Wigmore, Evidence (Chadbourn rev), § 1420, p 251. Hearsay evidence is not admissible at trial unless within an established exception. See People v Eady, 409 Mich 356; 294 NW2d 202 (1980). In order to be admitted under MRE 803(4), a statement must be made for purposes of medical treatment or diagnosis in connection with treatment, and must describe medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause or external source of the injury. Traditionally, further supporting rationale for MRE 803(4) is the existence of (1) the self-interested motivation to speak the truth to treating physicians in order to receive proper medical care, and (2) the reasonable necessity of the statement to the diagnosis and treatment of the patient. The trustworthiness of a child’s statement can be sufficiently established to support the application of the medical treatment exception. Furthermore, we find that the identification of the assailant is necessary to adequate medical diagnosis and treatment.

A. TRUSTWORTHINESS OF STATEMENT

While in cases involving adults a cognitive connection between speaking the truth to physicians and receiving proper medical care may seem obvious, further analysis of the circumstances surrounding the examination of a child is necessary to determine whether the child understood the need to be truthful to the physician. The United States Supreme Court recently found error in the contention that a child’s hearsay statements are presumptively unreliable when the child is found incompetent to testify at trial. Idaho v Wright, 497 US 805, —; 110 S Ct 3139, 3151; 111 L Ed 2d 638 (1990). All three children in the instant cases were found competent to testify. Although Wright involved a Confrontation Clause challenge against admission of hearsay statements under the residual hearsay exception, it is analogous to the present case because the Court in Wright was also required to address the inherent reliability of a child’s statements regarding sexual abuse.

In Wright, the Court held that no mechanized test should be formulated to determine whether a child’s out-of-court statement is reliable. Id., 110 S Ct 3150. Instead, it favored a totality of the circumstances test, citing several state and federal court decisions which highlight certain factors, including the spontaneity and consistent repetition of the statement, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and the lack of motive to fabricate. Id. The Court warned against bootstrapping the admission of a hearsay statement on extrinsic or corroborating evidence, holding that the evidence "must possess [an] indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Id.17

Through analysis under the Confrontation Clause, some evidence may be excluded that Would otherwise be admissible under an exception to the hearsay rule. Id., 110 S Ct 3146. We conclude that there is no risk in the present cases of violating the Confrontation Clause guarantees, because the admissibility of the hearsay statements is analyzed under MRE 803(4), an established hearsay exception. Moreover, we believe that it is sufficient to establish the trustworthiness of a child’s statement through an analysis which is not more demanding than required under the Confrontation Clause. Hearsay statements can be admitted where they sufficiently satisfy the underlying rationale of the applicable exception. A child can have the same selfish treatment-related motive to speak the truth as any adult. See State v Larson, 472 NW2d 120 (Minn, 1991). The inquiry into trustworthiness should therefore consider the totality of circumstances surrounding the declaration of the out-of-court statement.

While the inquiry into the trustworthiness of the declarant’s statement is just one prong of the analysis under MRE 803(4), it is very important that the understanding to tell the truth to the physician be established. Factors related to trustworthiness guarantees surrounding the actual making of the statement include: (1) the age and maturity of the declarant,¹⁸ (2) the manner in which the statements are elicited (leading questions may undermine the trustworthiness of a statement),¹⁹ (3) the manner in which the statements are phrased (childlike terminology may be evidence of genuineness),²⁰ (4) use of terminology unexpected of a child of similar age,²¹ (5) who initiated the examination (prosecutorial initiation may indicate that the examination was not intended for purposes of medical diagnosis and treatment), (6) the timing of the examination in relation to the assault (the child is still suffering pain and distress),²² (7) the timing of the examination in relation to the trial (involving the purpose of the examination), (8) the type of examination (statements made in the course of treatment for psychological disorders may not be as reliable),²³ (9) the relation of the declarant to the person identified (evidence that the child did not mistake the identity),²⁴ and (10) the existence of or lack of motive to fabricate.²⁵

Although some courts hold that corroborative evidence relating to the truth of the out-of-court statement should not be considered in determining whether to admit the statement,²⁶ we believe the better reasoned view is that the reliability of the hearsay is strengthened when it is supported by other evidence.²⁷ Corroborating physical evidence of the assault,²⁸ evidence that the person identified as the assailant had thé opportunity to commit the assault,²⁹ and resulting diagnosis and treatment can support the trustworthiness of the child’s statements regarding a sexual assault and aid in the determination whether the statement was made for the purpose of receiving medical care.

While these factors are neither inclusive nor exclusive, an analysis of the available evidence can support an application of MRE 803(4) even where it is not apparent that the child understood that statements must be truthful in order to receive proper care. The contention by the dissent that analysis of these factors incorporates a "substitute” component for the self-interest motivation factor for the application of MRE 803(4), post, p 345, misconstrues a major premise of our analysis: that due to the tender years of the hearsay declarants, the understanding to tell the truth may not be as apparent as it is with adults; that investigation into the circumstances surrounding the making of the hearsay statements is required in order to establish whether the child understood the need to be truthful to the physician. The gravamen of our analysis is that hearsay statements must simply be analyzed with more precision because of the young age of the declarants.

Moreover, courts have not asserted a lack of conscious connection as a basis for excluding statements by children that are otherwise admissible under the medical treatment exception. In LaLone, supra at 112, we cited with approval the decision in United States v Iron Shell, 633 F2d 77 (CA 8, 1980),³⁰ where the court held that statements made by a sexually abused child to the doctor were admissible. The nine-year-old victim’s statements related the details of the assault, but not the identity of the assailant. The court found that the victim’s motive was consistent with the purpose of FRE 803(4) because there were no facts indicating a motive other than a patient seeking treatment. Iron Shell, supra at 84. Moreover, the court found that the young age of the victim mitigated against a finding that the statements were not within the traditional rationale of the rule. Id.31

We further believe that admission of these statements is consistent with our holding in LaLone. Although in LaLone we did not analyze the facts according to a totality of circumstances test, upon such analysis it is clear that the declarant’s hearsay statement of identification was properly excluded. While under MRE 803(4) a statement does not necessarily have to be made to a medical doctor, the fact that the statement was made to a psychologist "suggests that the statement by the victim in this case may be less reliable than a statement made to a physician.” Id. at 113.³² The meeting during which the accusatory statements were made occurred after the complainant told the police of the abuse by the defendant, and after an investigation into those allegations had begun. The complainant was fourteen years old and knew that a case was being prepared against defendant. Furthermore, the complainant had already been removed from her home, and in fact it was the Department of Social Services who initiated the examination by the psychologist of the complainant.

We held in LaLone that "it has not been shown that the reliability of the complainant’s statement reaches the level necessary to fall within MRE 803(4).” Id. at 114. We did not, however, create a prophylactic exclusion of all hearsay statements of identification made to physicians. LaLone should be interpreted in light of its factual background, and does not preclude admission of statements where an analysis of the totality of the circumstances surrounding the declaration of the hearsay statement supports the underlying requirements of MRE 803(4).

B. REASONABLE NECESSITY

In order to ensure reliability of out-of-court statements of identification, the statements must be reasonably necessary to diagnosis and treatment. The purpose of statements identifying the assailant need not be merely to establish fault or to provide for social disposition of the child. Identification can be as important to the health of the child as treatment of the physical injuries that are apparent to the physician.

Identification of the assailant may be necessary where the child has contracted a sexually transmitted disease. It may also be reasonably necessary to the assessment by the medical health care provider of the potential for pregnancy and the potential for pregnancy problems related to genetic characteristics, as well as to the treatment and spreading of other sexually transmitted diseases such as syphilis and gonorrhea. Furthermore, certain diseases, such as acquired immune deficiency syndrome, cannot be detected in the early stages after a sexual assault.³³

Disclosure of the assailant’s identity also refers to the injury itself; it is part of the pain experienced by the victim. The identity of the assailant should be considered part of the physician’s choice for diagnosis and treatment, allowing the physician to structure the examination and questions to the exact type of trauma the child recently experienced.

In addition to the medical aspect explained above, the psychological trauma experienced by a child who is sexually abused must be recognized as an area that requires diagnosis and treatment. A physician must know the identity of the assailant in order to prescribe the manner of treatment, especially where the abuser is a member of the child’s household. As found in Wilkins, supra, sexual abuse cases involve medical, physical, developmental, and psychological components, all of which require diagnosis and treatment.³⁴ It should be noted that reference here is to psychological treatment resulting from physical abuse of a child. Our holding in LaLone does not preclude this result because LaLone involved statements made during a psychological examination, rather than psychological treatment resulting from a medical diagnosis.

A physician should also be aware of whether a child will be returning to an abusive home. This information is not needed merely for "social disposition” of the child, but rather to indicate whether the child will have the opportunity to heal once released from the hospital.

Statements by sexual assault victims to medical health care providers identifying their assailants can, therefore, be admissible under the medical treatment exception to the hearsay rule if the court finds the statement sufficiently reliable to support that exception’s rationale.

II

In all three cases, the hearsay statements were made by the declarants with the understanding that they were receiving medical treatment or diagnosis in connection with treatment, and described the external sources of their injuries. In LaLone, we held that "the identity of an assailant cannot fairly be characterized as the 'general cause’ of an injury.” Id. at 113. We believe statements describing an external source may require some type of identification, while the general character of the cause does not necessarily require identification. The statements must be specific enough to allow for identification of the external source of injury.

In Conn, the hearsay statement was made by the seven-year-old declarant with the understanding that she was receiving medical treatment or diagnosis in connection with treatment. The declarant had complained of pelvic pain and was brought by her mother to see the doctor. In Meeboer, the six-year-old victim was examined by a physician after her uncle noticed her scratching her private parts and her aunt noticed redness and swelling after giving her a bath. When notified, the victim’s mother called the police and then took the child to the hospital, where they were referred to the physician to whom the child made the statement identifying the defendant as her assailant. Finally, in Craft, the four-year-old hearsay declarant was brought to the doctor’s office because her foster mother noticed a discharge in her underwear. The physical symptoms in these cases required examinations by the physicians for purposes of medical diagnosis and treatment. These statements identifying the assailants were also descriptions of the external sources of these victims’ injuries. The statements were made in response to inquiries concerning how the victims were injured.

A. TRUSTWORTHINESS

To be admissible under MRE 803(4), these statements must also be made with the understanding by the declarant of the need to tell the truth to the physician. Sufficient evidence was introduced in People v Conn and People v Meeboer in support of the reliability of the hearsay statements to allow the application of MRE 803(4).

The disputed hearsay statement made by the victim in Conn did not identify the defendant by name, but rather described her assailant, directly implicating defendant.

The victim was seven years old when she spoke to the doctor. She attended school at that time, responded appropriately to the doctor’s inquiries, and was found competent by the court to testify.³⁵ She did in fact testify at trial, and the defense had ample opportunity to cross-examine her while she was on the stand. The victim spoke with the doctor and identified the defendant as the cause of her injuries before any investigation against him had begun. In fact, it was the doctor who alerted the proper authorities to the sexual abuse. The child was in an environment of receiving medical care, and was not in any way pressured to accuse the defendant as her assailant.

Upon examination of the victim’s pelvic area, the physician found labial irritation. When asked how that area got hurt, the victim initially stated that she had fallen off her bicycle.³⁶ The child testified that her mother told her to tell the doctor that a male baby sitter had sexual contact with her, but when then told by her mother to tell the doctor the truth, the doctor testified that the victim described her assailant as "a man that was living in the home with her and someone that she had multiple sexual experiences with.” The initial motive to fabricate was in response to the mother’s plan to protect the defendant from criminal prosecution. Despite initial conformity with that plan, the victim named the defendant as her assailant when told to tell the truth.

From a review of the record, it appears that the circumstances surrounding the child’s declaration of the hearsay statement sufficiently demonstrate the understanding on the part of the victim to tell the truth to the physician. Any conclusion raised by her tender years that she could not formulate a self-interested motivation to speak the truth to her physician was sufficiently countered by circumstantial evidence of her understanding of the need to be truthful.

In Meeboer, the child made the statement of identification when she was six years old. The court found the victim competent to testify. She was still six years old at the time of trial. The examination took place two days following discovery by the child’s family of possible abuse. Although the police had been alerted to the family’s suspicion of defendant, there is no indication that the examination was a pretext for an investigation. The physician was attempting to determine whether in fact abuse had occurred. Nor was there evidence indicating that the child fabricated her story. The child knew the defendant, for she had often stayed with his family, so she would not have mistaken his identity. Furthermore, the child stayed at his home during the weekend the assault occurred, although there was conflicting testimony regarding the issue of his opportunity to be alone with the child.

During trial the physician testified that she was aware, before conducting the examination, that the child might have been a victim of sexual abuse. When asked during the examination if anyone had done something to her they were not supposed to do, the child answered that the defendant had genital contact with her, using his hand and penis, as well as contact with her rectum and mouth with his penis. The exact words used during the examination are not reflected in the record. The doctor testified, however, that the child pointed to her genital area when asked where she was touched, and indicated that the penis entered her vagina further than the doctor’s finger upon examination, which indicated more than a one-inch penetration. While there was testimony, which her mother disputed, that the child might have seen adult cable movies depicting sexual encounters, there was no other evidence of the manner by which this six-year-old child would know the nature and mechanics of sexual intercourse.

The physician qualified as an expert in pediatrics and in identification of sexual abuse in children. While the physician was a member of a child abuse team at Hurley Hospital whose purpose it was to investigate alleged complaints of abuse and neglect, there does not appear from the record any use of leading or improper questions. The child was asked what happened, and she answered that the defendant had sexual encounters with her. The identification of the defendant was almost incidental to the remainder of the statement conveying what happened.

The victim experienced discomfort in her pelvic area, her family brought her to the doctor to determine its cause, and she answered questions initiated by the physician. The circumstantial evidence of trustworthiness is sufficient to establish that the child had the selfish motivation to speak truthfully to her physician.

We further find that in these two cases the identification of the assailant was reasonably necessary to the victims’ medical diagnosis and treatment.

In Conn, the foundation for admission of the statement of identification was created by a conclusory assertion that the statement of identification was reasonably necessary to diagnosis and treatment. In light of the ambiguity concerning the requirements for admission under prior case law, however, it is appropriate to consider the circumstances surrounding the statement to determine whether the statement was reasonably necessary to diagnosis and treatment.

The doctor testified that he inquired into the identity of the assailant as an aid for his diagnosis and treatment. He inquired into the identity of the assailant so he could scan for sexually transmitted diseases. Furthermore, since the doctor learned that the assailant was a member of the victim’s household, he in fact began her future treatment by alerting the authorities. The mother was incapable of protecting her daughter from the assaults of the defendant. Had she been more capable, the information gleaned by the doctor could have alerted her to the immense problem in her own household and been used by her to ensure that her daughter healed and did not suffer any more physical or emotional abuse.

The fact that child protective services were alerted does not turn the question of the assailant’s identity into an issue of social disposition. The victim was removed from her home and allowed to physically heal. She began psychological therapy, and was at the time of trial receiving therapy. Treatment and removal from an abusive environment is medically beneficial to the victim of a sexual abuse crime and resulted from the victim’s identification of the assailant to her doctor. The questions and answers regarding the identity of her assailant can therefore be regarded as reasonably necessary to this victim’s medical diagnosis and treatment.

In Meeboer, a specific foundation was established for admission of the statement of identification under MRE 803(4). In fact, the trial judge warned counsel to lay a firm foundation before proceeding with his questioning.

The physician testified that she was a member of the child abuse team at Hurley Hospital that investigated allegations of sexual assault. She had attended a seminar on sexual abuse, during which she participated in a workshop on the emotional effect of sexual assault on children. In response to questions regarding the purpose for her questioning the child, the physician stated:

Basically it gives me an idea of what to look for when I’m examining the child and some questions to ask while I’m examining. And, also, to get an idea of how the child is handling the alleged sexual abuse so that I can, perhaps, work to allay any fears or any apprehension when I’m going to be doing the exam.

She then answered in the affirmative the questions of the trial judge whether she was going to treat the victim and whether she was going to make a medical diagnosis in connection with her medical treatment.

C. PEOPLE v CRAFT

In People v Craft, we are not persuaded that sufficient evidence was presented to support admission under MRE 803(4) of the child’s statement of identification to the physician. The victim was only four years old, making it more difficult to establish that she understood the need to be truthful to her physician. The circumstances surrounding the examination of the child, during which the defendant was named as the assailant, do not adequately establish that this child knew she must speak truthfully to her physician.

Because of the need for frequent urination and a discharge in her underwear, the child’s teachers notified protective services and the police. After her mother was also notified, the child was examined by a physician, who noted that the child’s vaginal opening was larger than expected of a four-year-old child, and the hymen was not intact. No lacerations or scarring was noticed, however. The child did not implicate defendant as the person having sexual contact with her, although she did indicate that a boy had touched her. This examination was the first indication by the child that some sexual assault or encounter may have occurred.

The second examination of the child was conducted by a different doctor, and took place after the child was removed from her home. The foster mother noticed a discharge in the child’s underwear, and brought her to the doctor to determine the source of the discharge. Through the physician’s testimony, the record shows that the victim identified defendant as her assailant in response to general questions regarding who might have touched her. The child understood that defendant had put "his weenie,” which was "straight,” and a "rubber on his weenie” in her genital area. The child indicated by pointing to her genital area where her assailant’s "weenie” would be on him. Such knowledge of the mechanics of sexual intercourse strengthens the assertion that this child did not fabricate her story, and the mother of the victim admitted that she knew no reason why the child would lie, nor how she would know of the mechanics of sexual intercourse, aside from the possibility that the child witnessed her mother and defendant engaged in intercourse.³⁷ An investigation of possible sexual abuse was ongoing during that time, however, and we cannot conclude from this record whether the child was influenced in her accusation of the defendant. The initial examination of the child took place two days after the alleged assault. The child resided with her family at that time, and she did not accuse defendant of any wrongdoing during that examination. The child was then removed from her home and placed in foster care. Several weeks later, she was examined again by a different physician, during which examination the child implicated the defendant as her assailant. The passage of time between the two examinations, as well as the participation of investigative authorities before the examination during which the child indicated«that defendant had assaulted her, demonstrates the insufficiency of the evidence presented in support of the application of MRE 803(4).

The physician in Craft testified that the purpose of her examination and questions was to determine the source of the vaginal discharge. She also established her opinion that information regarding the identity of the assailant was not necessary to proper diagnosis, but was necessary for treatment and reporting.

It was very important to determine if an adult male had penetrated the child in order to screen for sexually transmitted diseases. The doctor considered the identification of the assailant to be necessary for treatment and reporting in that she did not pursue further diagnostic studies of the victim’s secondary complaint of incontinence because she wanted to see how the child healed outside the home. The identification of the assailant was reasonably necessary with reference to the placement and the physical and psychological treatment of the child.

While perhaps the information necessary for treatment of an ailment that is capable of diagnosis without that knowledge falls within MRE 803(4), we do not resolve that issue because we believe that an analysis of the totality of the circumstances does not support the finding that the statement was made with the requisite understanding by the declarant to speak the truth to her physician.

We therefore affirm the decisions of the Court of Appeals in People v Meeboer and People v Craft, and reverse the decision of the Court of Appeals in People v Conn.

Boyle, Griffin, and Mallett, JJ., concurred with Riley, J.

1 The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment. [MRE 803(4).]

2 People v LaLone, 432 Mich 103; 437 NW2d 611 (1989).

3 This examination by Dr. Scheinfield predated the alleged sexual assault. Defense objected to such testimony; however, the trial court permitted its admission.

4 Complainant’s mother was charged with and convicted of cruelty to children and as an accessory after the fact to criminal sexual conduct in the first degree. She was tried jointly with defendant Conn; however, each defendant had separate juries.

5 People v Conn, 171 Mich App 55; 429 NW2d 839 (1988).

6 432 Mich 916 (1989).

7 People v Conn (On Remand), 182 Mich App 13; 451 NW2d 555 (1990).

8 436 Mich 880 (1990).

9 See People v Wilkins, 134 Mich App 39; 349 NW2d 815 (1984).

10 See United States v Iron Shell, 633 F2d 77 (CA 8, 1980).

11 People v Meeboer, unpublished opinion per curiam of the Court of Appeals, decided April 6,1988 (Docket No. 97072).

12 432 Mich 932 (1989).

13 People v Meeboer (On Remand), 181 Mich App 365; 449 NW2d 124 (1989).

¹⁴

15 People v Craft, unpublished opinion per curiam of the Court of Appeals, decided January 23,1990 (Docket No. 108572).

¹⁶

17 In fact, the Court later reasoned:

Corroboration of a child’s allegations of sexual abuse by medical evidence of abuse, for example, sheds no light on the reliability of the child’s allegations regarding the identity of. the abuser. [Id., 110 S Ct 3151.]

See also State v Larson, 472 NW2d 120, 125 (Minn, 1991) (trustworthiness guarantees must be shown by the totality of the circumstances surrounding the actual making of the statement, not evidence corroborating the statement), and Huff v White Motor Corp, 609 F2d 286, 293 (CA 7, 1979) (corroborative evidence is not a consideration relevant to admissibility under the hearsay exceptions).

18 United States v Renville, 779 F2d 430, 441 (CA 8, 1985); Wright, 110 S Ct 3150; Myers, Child Witness Law & Practice, § 5.37, p 369; Wilkins, supra at 44.

19 Larson, supra at 125. See also Myers, n 18 supra at 365 (spontaneity is an important indicator of reliability) and 366 (leading questions may influence the statement, thus potentially decreasing its reliability).

20 United States v Nick, 604 F2d 1199, 1204 (CA 9, 1979); Larson, supra at 125.

21 Wright, 110 S Ct 3150; Myers, n 18 supra at 367.

22 Nick, n 20 supra at 1204.

23 LaLone, supra at 110.

24 Nick, n 20 supra at 1204; Myers, n 18 supra at 370.

25 Larson, supra at 125; Wright, 110 S Ct 3150; Myers, n 18 supra at 370.

26 See Wright, 110 S Ct 3150; Huff, n 17 supra at 293.

27 See Myers, n 18 supra at 364.

²⁸

29 Id.

30 See also People v Hackney, 183 Mich App 516, 528; 455 NW2d 358 (1990).

31 See also Renville, n 18 supra at 441; Wilkins, supra at 44. But see Cassidy v State, 74 Md App 1; 536 A2d 666 (1988), and Mosteller, Child sexual abuse and statements for the purpose of medical diagnosis or treatment, 67 NC L R 257, 293 (1989), stating that the naiveté of children is not a sufficient substitute for the selfish interest foundation to the medical treatment exception.

32 See also Mosteller, n 31 supra at 268.

33 "Phs Recommendations for Management of Persons After Occupational Exposures That May Place Them at Risk of Acquiring hiv Infection,” Center for Disease Control, Morbidity & Mortality Weekly Report, January 26, 1990, vol 39, no RR-1, p 2.

34 See also LaLone, supra at 117 (Archer, J., concurring in part and dissenting in part).

35 The victim was ten years old at the time of trial.

36 See n 4.

37 The prosecutor impeached this part of the mother’s testimony with a prior inconsistent statement made by her at the preliminary examination, where the mother testified that the child could not have witnessed her mother and defendant engaged in intercourse.