State v. Evans
Case #: A143780
Ortega, P.J. for the Court; Haselton, C.J.; and Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A143780.pdf
Evidence: An exception to OEC 504(2), ORS 419B.040(1) allows for the admissibility of therapists testimony, as long as the testimony references only exculpatory or inculpatory information regarding the abuse of the child in the case being decided.
Defendant was convicted of two counts of first-degree sex abuse under ORS 163.427, and claims the trial court erred in denying his motion to introduce testimony from both a school psychologist and a family therapist, who spoke to the victim. According to Defendant, the victim's statements to the therapists would show the victim was defiant around authority figures, fearful of men, and prone to exaggerations, among other things. Defendant argued that these statements were to be used for impeachment purposes under OEC 607, 608(1), and 609(1) and (2). Further, Defendant claimed this was an exception to the psychotherapist-patient privilege under OEC 504(2), because under ORS 419B.040(1), there is an exception to the privilege for mandatory reporting. The victim was ten years old, and reported to her school counselor Defendant had sexually abused her, which triggered a mandatory child abuse report. Defendant moved to enter testimony by a therapist and a school psychologist. The trial court denied the motion, holding the credibility of a witness is determined by the jury, and additionally, this testimony does not fall within the scope of the exception under OEC 504(2), and 419B.040(1). The Court of Appeals held that the scope of the exception under ORS 419B.040(1) is very limited. Only exculpatory and inculpatory statements made by the victim in reference to the child abuse in the case in question may be admitted. Here, the therapist’s' testimony Defendant sought to include did not reference the abuse of the child, and therefore, was correctly excluded. Affirmed.