The Court of Criminal Appeals may have outdone themselves. Really.
Trumping itself in terms of stupid opinions is difficult, but they pulled off the feat in Taylor v. State, 268 SW 3d 571 (10/2008).
This case allows the State to introduce a litany of ongoing hearsay from a therapist regarding the alleged victim child (and adult) of an alleged sexual assault. Essentially, if the “victim’s” and therapists sessions are pertinent to ongoing treatment, then everything the alleged victim says to the therapist is admissible hearsay.
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If the state is clever enough they can put “victims” in therapy immediately after an outcry and have months and years of testimony from a therapist all under the guise of treatment for post traumatic stress disorder or some other malady.
The Court instructed the prosecution how it can, by laying a little foundation, allow a THERAPIST to give hearsay testimony concerning what the “victim” has said in an “ON GOING COURSE OF TREATMENT” and such blatant hearsay is admissible as a declaration for medical diagnosis and treatment.
In a long poorly written convoluted opinion the Court came up with this gem:
“We disagree with the Austin Court, however, to the extent that it has held that such a self-interested motive (presumption behind medical diagnosis and treatment hearsay exception that a patient will be truthful due to patient’s self interest in receiving necessary medical care) ‘ is no longer present once a diagnosis has been made and treatment has begun. This is too categorical. It is inconsistent with the plain language of the rule, which admits hearsay made for the purpose of “diagnosis or treatment”, not “diagnosis or determining a course of treatment,” or “diagnosis or devising a treatment plan.” Moreover, the motive for self-preservation that fuels the hearsay exception does not necessarily extinguish once a course of treatment has been determined and has commenced. The effectiveness of on – going treatment, and especially mental health treatment, we have no doubt, will at least sometimes depend, in some particulars, upon the patient’s veracity. When that is the case, and so long as the patient can be made to understand that dependency, there is little reason to question his motive to be truthful in the interest of improving his own mental health.”
The Court of Criminal Appeals, in other words, cannot conceive of even the possibility that a child, teenager, or adult, would lie, embellish, or exaggerate an allegation of sexual assault. The Court does not even entertain the idea that what the “victim”-patient informs the therapist could be false, based upon suggestiveness or coaching from adults, be motivated for personal gain, or any other possibility.
It has to be true because the “victim”- patient is seeing the therapist for their own mental health well being. Certainly not to assist the state build its case and provide corroborative evidence to bolster the complainant’s credibility.
Further, the Court does not question the therapist’s rendition of years of patient hearsay. Were these sessions recorded? Highly unlikely. Are there extensive notes? Perhaps. When were those notes written? Simultaneously with the session? Post session? What about the therapist’s self interest in remaining on the child advocacy centers list to receive appointments?
None of these issues is even a consideration.
This state will stop at nothing in order to ensure that all it takes is an allegation of sexual abuse in order to convict!
If you are facing charges or arrest for child sexual abuse, call Dunham & Jones, Attorneys at Law at 800-499-8455. We are on your side. The time to act is NOW!
