David, J.
When a competent adult patient visits a doctor and provides the physician with a medical history intending to aid in their diagnosis or treatment, we presume those statements are made truthfully because adults know that lying to one’s doctor risks misdiagnosis or mistreatment. Accordingly, the Rules of Evidence generally allow medical professionals to provide substantive testimony as to the statements their patients make in the course of providing their medical history—even though that testimony would ordinarily be excluded as hearsay. When the patient is a young child, however, it is not so easy to assume that he or she recognized the merit of providing a nurse or doctor with truthful information. Because of this, we require a more robust evidentiary foundation be laid before the same type of hearsay testimony is seen as reliable enough to be admitted.
Here, a defendant was convicted on two counts of child molestation and the only substantive evidence implicating him in those crimes was a forensic nurse examiner who testified about statements made by the alleged victim—a six-year-old child who, at the time of trial, had recanted. Based on our review of the trial record, however, there was an insufficient showing that the child victim in this case was motivated to provide truthful information to her nurse. Because of this, the nurse’s testimony should not have been admitted as substantive evidence against the defendant and we therefore vacate his convictions with respect to those two counts of child molestation.
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Were S.D. and E.R. older, certainly the State is correct that the appearance of the building, the exam room, and Moss’s scrubs and job title would probably be sufficient circumstances from which to infer that the two girls desired to seek medical treatment and were thus motivated to speak truthfully. But as we said in McClain, with young victims, “that inference is not obvious,” and “there must be evidence that the declarant understood the professional’s role in order to trigger the motivation to provide truthful information.” McClain, 675 N.E.2d at 331. . . . .
In fact, the precise point of McClain is that courts cannot simply assume that what is obvious to a competent adult—that they are in a medical facility seeking medical treatment from a medical professional—is obvious to a child. As VanPatten’s counsel argued at trial in support of his objection, “the distinguishing feature here is we’re dealing with a six year old child, that the six year old child doesn’t comprehend the same way that adults do. We as adults of course know that it’s important for a medical professional to know the truth. I don’t think you can make that assumption when dealing with a six year old child.” (Tr. at 329.)
Instead, the question before us is whether the record reflects that the child adequately understood the role of the medical professional and the purpose of the visit in order for us to infer that the child was motivated to speak truthfully. . . . .
As we read it, the collective impression left from the testimony at trial is murky at best, beginning with the purpose of the examination. The girls were examined by Moss only after being extensively interviewed at DCS, muddying the issue of whether the underlying motivation even from their parents was to seek medical treatment for their children or to assist the police in their investigation. And Moss admitted that she observed the DCS interview before she met the girls, raising the concern that her questioning may have steered the answers to support the allegations brought up in the interview. This is a concern we cannot fully dismiss based on the trial record.
Furthermore, there is no testimony from E.R. or S.D. that either understood Moss’s professional role, or the role of nurses or doctors in general. Nor is there testimony from either girl, or their parents, concerning past experience with medical facilities or medical providers from which we could reasonably infer that the girl knew why she was being examined at the Fort Wayne Sexual Assault Center.
In fact, the only statements relevant to the first prong of the McClain test are Moss’s statement that she tells children “[i]t’s my job to make sure that you’re okay,” and her affirmative response to the question “[s]o you ask general health issues and you also talk to them about why you’re there to see them and provide treatment to them?” And even though Moss testified that she goes through this same procedure with every child, her subsequent testimony that she has no actual recollection of her conversations with E.R. and S.D.—and also that those conversations were not recorded or summarized in the report she used to refresh her memory—undercuts our ability to infer that E.R. and S.D. were motivated to respond truthfully to her questions because they understood her professional role.
Nor can we draw this inference just from the fact that Moss had performed well over a hundred such forensic examinations on children, because every child will be different at that age. While this background certainly lends support to her assertion that her interaction with E.R. and S.D. occurred in a similar fashion, it does not necessarily indicate that these particular children, in these particular examinations, understood the nature of the process. Each child is different, and it would be no more appropriate to treat them all the same with respect to this inference than it would be to treat them the same as we treat adults.
We do not intend for this evidentiary foundation to present an insurmountable hurdle, nor do we seek to dictate trial testimony. But here, for example, a few simple questions asked of E.R. and S.D. would have helped: “Have you been to a doctor’s office before?” “Have you been seen by a nurse before?” “Do you know what nurses do?” “What do they do?” “Do you know the difference between the truth and a lie?” “Do you tell nurses and doctors the truth?” “Do you know why you tell the nurses and doctors the truth?” “Did you know why you were seeing Nurse Moss?” Firm responses to questions like these would go a long way in supporting the inference that E.R. and S.D. were motivated to tell Moss the truth when she examined them.
Likewise, a few more directed questions for Moss would have been helpful (although given her lack of precise knowledge about her interactions with E.R. and S.D., we concede that these would have been difficult in this particular case): “Did you explain the purpose of the examination to the girls?” “How so?” “Did you ask if they understood the purpose of the examination?” “Did you ask if they had been seen by a nurse before?” “Did you explain how important it was that they tell you the truth?” “How did they respond?” These sorts of questions—and solid responses—reflected in the record would certainly help a reviewing court confirm that the hearsay testimony sought to be admitted was sufficiently reliable.
Along those same lines, a few simple questions asked of E.R. and S.D.—or their parents—could have clarified the purpose of the visit in the first place. “Why were you seeing Nurse Moss?” “Did the police ask you to take your daughter to the Sexual Assault Treatment Center?” “Why did you take your daughter there?” “Why not take her to a hospital before taking her to DCS?” This sort of evidentiary foundation would certainly ameliorate our concern that the visit was intended to obtain evidence as part of a law enforcement investigation.
But no such foundation is here in this record. The testimony does not tell us at all what Moss said to E.R. and S.D., how they responded, and whether they understood what was going on. And in fact, Moss expressly said that she would not have explained to the girls how important it is that they tell her the truth. Simply put, there is no “evidence that the declarant understood the professional’s role in order to trigger the motivation to provide truthful information.” McClain, 675 N.E.2d at 331. This is not to say that Moss did not necessarily discuss these things with S.D. and E.R., or that her work as a sexual assault examiner was somehow deficient. But without that firm indication of reliability in the record, we have no choice on appellate review but to conclude that the statements made to her by S.D. and E.R. should not have been admitted under the hearsay exception found in Indiana Rule of Evidence 803(4), and it was an abuse of the trial court’s discretion to do so.
Dickson, C.J., and Rucker, J., concur.
Massa, J., concurs in result with separate opinion in which Rush, J., concurs:
Although I agree with the majority’s analysis of S.D.’s statements to Moss under our Rules of Evidence, I write separately because I believe the admissibility of such evidence can and should be evaluated pursuant to the Protected Person Statute, Indiana Code § 35-37-4-6 (2008 & Supp. 2012), not Rule 803(4). . . . .