Sunday, February 03, 2008

NMCCA's Salinas opinion

On 29 January 2008, NMCCA affirmed the findings and sentence in a published opinion in United States v. Salinas, __ M.J. ___, No. NMCCA 200700331 (N-M. Ct. Crim. App. Jan. 29, 2008).

Salinas is yet another ugly and depressing child sex abuse case involving a stepfather convicted of preying on his six-year-old step-daughter. The girl was treated by a licensed family therapist for a year. That therapist's testimony at Petty Officer Salinas's court-martial resulted in the issues that NMCCA's opinion addresses.

NMCCA noted that the admissibility of statements under the medical diagnosis or treatment hearsay exception is governed by a two-part test: (1) "the statements must be made for the purposes of 'medical diagnosis or treatment'"; and (2) "the patient must make the statement 'with some expectation of receiving medical benefit from the medical diagnosis or treatment that is being sought.'" Salinas, slip op. at 4 (quoting United States v. Rodrigues-Rivera, 63 M.J. 372, 381 (C.A.A.F. 2006)).

The principal issue regarding the first prong of the test was whether a statement identifying the perpetrator's identity was made the purpose of medical diagnosis or treatment. NMCCA held that because the alleged abuser was in the patient's household, it was:
It is true that under some circumstances, the specific identity of an assailant might be immaterial to psychological diagnosis and treatment of trauma resulting from a sexual assault. However, where, as here, a member of the household is the alleged offender, the situation is different. While Dr. Borrego's testimony could have been directed more precisely to address this aspect of [the step-daughter's] treatment, the testimony that was elicited is a sufficient basis upon which to conclude that Dr. Borrego needed to know the information about which she inquired in order to properly structure [the step-daughter's] treatment and to ensure that [her] treatment was not compromised by additional encounters and with the perpetrator.

Salinas, slip op. at 8 (internal citations omitted).

As to the second prong, NMCCA concluded that the step-daughter understood that the therapist was a doctor who was trying to help her, thus brining her statements to the therapist (Dr. Borrego) within the medical diagnosis or treatment hearsay exception. Id., slip op. at 8-9.

NMCCA also rejected a defense challenge that the step-daughter's statements to Dr. Borrego were too temporally attenuated from the alleged abuse to qualify under the medical diagnosis and treatment exception. NMCCA both disagreed with the substance of that argument, noting that the step-daughter's first statement to Dr. Borrego was made three months after the alleged abuse occurred, followed by four more statements "over the course of treatment sessions during the year preceding trial. Id., slip op. at 10. NMCCA also questioned whether the temporal attenuation analysis under United States v. Quigley, 35 M.J. 345 (C.M.A. 1992), remains good law. See Salinas, slip op. at 9. n.6.

But NMCCA did hold that the military judge erred by allowing Dr. Borrego to testify to the members that she had diagnosed the step-daughter as suffering from Post-Traumatic Stress Disorder (PTSD). Citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), NMCCA held that "there was insufficient foundation elicited regarding Dr. Borrego's qualifications and the scientific methodology of how she arrived at the diagnosis she tendered in court." Id., slip op. at 13 & n.10. "Similarly, the basis of her conclusion and the relevance of PTSD in this case were not clearly established." Id., slip op.a t 13. NMCCA also observed that the government never actually offered Dr. Borrego as an expert for purposes of her testimony on the merits. Id. Nor did the military judge accept her as an expert for purposes of her testimony on the merits. Id. Nor did the military judge conduct a Military Rule of Evidence 403 analysis. Id. NMCCA therefore concluded "that Dr. Borrego's reference to PTSD was not properly admitted as expert testimony." Id. The court, however, went on to hold that that error was harmless beyond a reasonable doubt. Id., slip op. at 14-16.

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