Would they rather the child be cross-examined?

CHILD ADVOCATES' TESTIMONY ON TRIAL
Justices to rule on social workers speaking for kids
Kevin Mayhood, Columbus Dispatch, Oct. 10, 2006, News pg 1D.

A social worker at the Center for Child and Family Advocacy coaxed the 10 year-old girl to tell her what happened and who did it. The girl told Kerri Marshall that Shawn W. Martin told her to pull down her pants or he'd punch her. Then he touched and licked her private parts.

The girl didn't know that a Columbus police investigator, a nurse practitioner, a mental-health advocate and a caseworker from Franklin County Children Services were watching the interview on closed-circuit television.

The adults used her statements to do their jobs: Investigate the crime, treat the child and investigate the family situation. Marshall later told a jury what the child had said and helped convict Martin of four counts of rape, sparing the girl from testifying.

Rarely is one person permitted to testify about what another person said, but this fits an exception to Ohio's hearsay law, center officials say.

Defense attorneys say the center, which opened last year at Children's Hospital, is walking a fine line at best and abusing the rights of the accused at worst.

Twice this year, the Franklin County Court of Appeals has ruled that social workers' testimony is allowed in such cases because the questions were asked for medical purposes, not law enforcement.

Last Wednesday, the Ohio Supreme Court agreed to decide if the medical exception is enough.

The high court will hear a case from the Hancock County Court of Appeals, which ruled differently from the appeals courts in Franklin, Cuyahoga, Erie and Trumbull counties. In the Hancock case, the court ruled that a social worker's testimony used to convict Dennis D. Muttart of rape should not have been allowed.

The court said a state precedent required the trial judge to first hold a hearing to determine if the little girl was competent when she talked to the social worker. Competent means the child could understand the difference between imagination and reality and remember and be able to tell facts.

The technique used at the center blurs the lines, said Martin's appeals attorney, W. Joseph Edwards. "Whether the victim is injured or not, whether the incident took place a year ago or two years ago, they take the child to the center, and the social worker there is conducting an interview just like a police officer would," he said.

Edwards lauds the center's efforts but said that allowing the social worker, who is trained to testify, to repeat the victim's statements at trial is "a way around the evidence rules," which generally require that the accused be permitted to question their accusers.

Other centers created the technique, which has been approved by courts in other states and other parts of Ohio, said Yvette McGee Brown, a former juvenile-court judge who heads the Columbus center.

"We're not stepping over the line. We're asking questions to get the best care for that child."

Medical staff members need to know what happened so they can respond with proper treatment and tests, whether the abuse occurred an hour or a year ago, she said.

The police and other agents watch the interview from afar for two reasons. The child is spared the trauma of retelling the story to each individual.

And courts have ruled that, when a police officer is present, the social worker's testimony is barred because the child may have understood that her answers might be used to arrest the abuser.

If charges do result, which happens in about 10 percent of the hundreds of cases a year at the center, a digital recording of the interview is available to the defense.

"We want to be as transparent as possible," McGee Brown said.

The tapes have resulted in some guilty pleas, prosecutors said. If a trial is held, the social worker's testimony can spare the victim from facing the abuser and "being whip-sawed under cross-examination in court," McGee Brown said.

Jonathan Tyack represented John V. Edinger, who was convicted of rape and gross sexual imposition of a 2-year-old girl in Franklin County. Tyack thinks the competency hearing should be required before a social worker can testify.

"It seems unfair that a child is going to make an accusation to a social worker one time, and the social worker comes to court to testify and the testimony is used to convict when there are no other checks," Tyack said.

The girl didn't testify against Edinger, but the social worker provided corroboration the crimes had occurred. As is often the case in sex crimes, there was no physical evidence.

Sharon Davies, who teaches evidence and criminal law at Ohio State University, said the center appears to be on the right side of a fine line. She said the exception for medical purposes "already implicitly assumes that those talking to their doctors are competent."

"The person seeking treatment or a diagnosis knows what happened ... and is probably the most competent person to be making those kinds of statements to a medical professional."

Further, she said the exception fits a recent U.S. Supreme Court ruling that allows such testimony if the victim does not know the statement would likely be used in court.

"It's hard to believe a child could make that connection," she said, "especially the very young."