Subject: Hearsay, o' Hearsay

From: [email-masked] (aaron.l.hoffmeyer)
Date: Sun, 14 Mar 1993 01:14:24 GMT

Listen.

I've been involved in helping a man who was falsely accused of abusing
his three-year-old daughter as party of a custody disputed divorce.
Charges were filed against him in Juvenile Court.  The state was
seeking to terminate his parental rights and limit his contact with his
daughter, based on the word of the mother of the child and the
substantiation of abuse by three doctors.  However, about three months
ago, the state and his ex-wife were all willing to grant shared
parenting to this father and completely dismiss the case in juvenile
court if he would agree to shared parenting with supervised
visitation.

He refused.  This father has money to defend himself, which is very rare
in these cases, because it takes such an inordinate amount of money to
fight these allegations in multiple courts--juvenile, domestic and
sometimes civil and criminal.  A person can be tried multiple times for
the same thing, each time having to pay $10,000 to $25,000.

After this father refused a settlement, the state proceeded with the
juvenile case against him.  The trial in juvenile court started Friday,
March 12th.

The three doctors who substantiated abuse:  well, only one of them ever
saw or talked to his daughter.  This doctor worked for Children's
Hospital, but has subsequently been fired for what a representative of
Children's Hospital deemed "problems with her work."   The other two
doctors substantiated based on a review of what the first doctor had
written on this case, and I've seen the first doctor's records on this
case, they're ridiculous.  The first doctor in the case substantiated
abuse based on the dimensions of the hole in the child's hymen, which
she indicated was 3mm x 7mm.  Her charts showed that for a
three-year-old, the size of the ring of the hole in the hymen should
have been 3mm x 5mm.   She made this measurement, not using any tools
or measuring devices, but by comparing the size of the hole to a chart
on an abuse form they have at Children's Hospital.  The 2mm difference,
for those of you unfamiliar with metric units, is equivalent to 1/13th
of an inch.  That 13th of an inch difference is the only bit of
physical evidence upon which this doctor substantiated.

It is the only "evidence" in this case, besides the hearsay word of
what several people have stated the child told them.  I've seen these
hearsay statements in documents filed with the court by the
prosecution.  The child has never made a specific statement of abuse,
only made statements like, "Daddy hurt me down there."  No one has
questioned the child to check for coaching.  No interviews have ever
been recorded, whether by transcript, or audio or video recordings.

The child was examined by a family doctor who was a close friend of the
mother soon after she made the allegations.  This doctor, at that time,
found no evidence of abuse.  In court on Friday, he stated that he
believes the child was abused.  He also stated that as part of his
examination, he stuck his finger up inside the little girl.  He did NOT
look at her hymen.  He also did not know how a hymen should be properly
examined.  He could not describe the proper procedure, nor name the
proper instruments for performing such an examination.

The next and only subsequent doctor to examine the child was recently
fired from Children's Hospital.  She is the one who substantiated based
on a 1/13th of an inch difference in what the size of the hole in the
hymen was supposed to be (on average) and her line-of-sight
determination of the actual size.  Well, she is not even in the state
anymore, so the state cannot use her as a witness.  The state is now
trying to admit the entry of her boss, who has never seen this child at
all, to testify on her behalf, in her absence.  More about that in a
minute.

The two doctors who made written statements to the juvenile court
backing up the substantiation of the doctor who performed the physical
examination at Children's Hospital, will NOT testify, either because
the state does NOT want to reveal that they never saw the child, or
because these doctors will NOT backup their written statements.
Whatever the case, they won't be testifying.

Now, back to the Children's Hospital situation:  The boss of the doctor
who made the substantiation has revealed that this doctor was new, and
that she was subsequently fired.

He cannot testify to the validity of her substantiation.  However, he
defends her report, and although he has never seen the child, wants to
testify for the prosecution for several reasons:  1) He wants to
describe the methodology that he tells his doctors to use; and 2) to
testify about the statements made by the little girl to the doctor who
is no longer in his employ.  In other words, the state is trying to
admit the interpretation by a third party of the written word of a
doctor summarizing the word of the little girl.

I understand that the courts have trounced the Constitution in
admitting the hearsay testimony of children who have allegedly been
abused if they supposedly made statements to a professional (but only
in some states), but this is hearsay of hearsay.  Is there a precedence
for this?  What laws would specifically prohibit this?  I understand
the Sixth Amendment to the Constitution already.  What else?

The tactics utilized by the state in this trial are truly
disconcerting.  The juvenile court prosecutor kept running through
sustained objections to her questioning.  In other words, even when the
judge told her she could not ask a question or phrase a question a
certain way, she would do it anyway.  By the end of the day, the
defense counsel was asking the court to reprimand her for her
behavior.

Also, Mom's divorce attorney was present and was trying to help the
prosection with their case.  He also demanded money from the defendant
for child support to be paid to him in cash, right there in front of
witnesses.  The accused is paying his child support through the Child
Support Enforcement Agency every month and is current.

The Guardian Ad Litem of the child is also helping the prosecution with
their case.  He refused to investigate the veracity of the allegations
when they came up.  He was not interested in this man's innocence or
guilt, merely in creating a trust fund for the child which he would
manage.  When this father refused the Guardian's offer, the Guardian
became incensed and is now out to terminate this father's rights to his
child.  

The referee refused this man's request for a jury trial.  He has also
tried to allow the admission of the hearsay o` hearsay evidence, but the
defense wants to illustrate in black and white why it is not legal to do
so.  He also refused to allow any of the witnesses against this man to
be deposed as part of the domestic relations case.

The accused man said that the three attorneys and one referee all
opposing his defense counsel looked to him like a lynch mob.  Sad to
say, apparently this is the standard state of affairs in Juvenile Court
in the US.

So what sayeth thou?  Hearsay o' hearsay admitted as evidence--how can
it be possible?  How can it be stopped?

I still think this man will win this case.  He is bringing in the
national experts, Dr. Gordon Blush and Karol Ross, along with their
medical experts, including Dr. Timothy Campbell.  And, after he wins
this case, well, he'll then be entertaining a lass named Sue.

Aaron L. Hoffmeyer
[email-masked] 

P.S.  It is important to note that in this case, Mom at first alleged
Dad had intercourse with his three-year-old daughter.  The evidence did
not support this at all.  Next Mom stated that the little girl had told
her that Dad stuck a toy inside her.  Several months ago Mom was saying
it was a crayon.  That was still impossible based on the size of the
hole in this girl's hymen.  So, guess what Mom is saying happened now?

Dad put the tip of the crayon up inside his daughter.

Oh.  The first doctor to testify, the family doctor, stated he believed
the little girl was abused, in part, because, according to Mom, she
peed her pants several times last summer.  Imagine that.... a
three-year-old.