State v. Hocevar6/19/2000
in lieu of cross-examination." State v. J.C.E. (1988), 235 Mont. 264, 272, 767 P.2d 309, 314. "Everything that bears on the credibility of the speaker and the accuracy of his statement counts. . . ." Christopher B. Mueller and Laird C. Kirkpatrick, Evidence § 8.65 (1995). We have held that the residual exceptions "should be used sparingly, and only in exceptional circumstances." State v. Brown (1988), 231 Mont. 334, 338, 752 P.2d 204, 207.
Here, the District Court reviewed the videotapes and found that Mr. Stabio and Wesley did not communicate very well. There is a lot of inconsistencies, a lot of difficulty with times, staying focused on what Mr. Stabio wanted to say, and the Court cannot say that even at that time from that, that Wesley was a competent witness at that time. It just seems to me that he, initially, at the first interview, he was saying his mother told him-at first he said no, she didn't tell him to take them. He took them because he wanted to take them. And then she did tell him to take them. And then there was, how many were there? There were this many. And that means ten or five? It just doesn't seem to me that there is anything substantive that would assist the jury with respect to that . . . .
The admission of the videotaped interviews was properly denied under the residual exception because the videotapes did not manifest circumstantial guarantees of trustworthiness.
The videotapes were not admissible pursuant to Rule 803, M.R.Evid., as present sense impression, recorded recollection, or under the residual exception. The District Court did not abuse its discretion in refusing to admit the videotaped interviews with Wesley into evidence.
Issue 5
Whether the expert testimony on MSBP was properly admitted.
In regard to evidentiary matters, it is within the district court's discretion to determine whether or not evidence is relevant and admissible. See Beavers,
20. District courts are " 'vested with great latitude in ruling on the admissibility of expert testimony.' " State v. Southern, 1999 MT 94, 48, 294 Mont. 225, 48, 980 P.2d 3, 48 (citations omitted). Absent a showing of an abuse of discretion, we will not overturn a district court's determinations on evidentiary matters. See Beavers, 20.
Susan challenged the admissibility of the MSBP expert testimony prior to trial. The District Court preliminarily ruled that the testimony would be admissible and that the jury was entitled to receive and weigh such evidence. The court noted that a further hearing outside of the presence of the jury might be necessary. The court conducted the hearing prior to the testimony of one of the State's expert witnesses, Dr. Randall Alexander, a Professor of Pediatrics. Alexander presented his prospective testimony. The court found that the foundational requirement for admission of MSBP testimony had been satisfied and allowed the State to present Alexander's testimony regarding MSBP to the jury.
Although both parties have framed their argument with regard to the admissibility of the MSBP expert testimony around the Daubert standard, that standard is inapplicable because it only applies to the admissibility of novel scientific evidence. See, e.g., Gilkey v. Schweitzer, 1999 MT 188, 18, 295 Mont. 345, 18, 983 P.2d 869, 18 (citations omitted). The expert testimony regarding MSBP is neither novel nor scientific. The term "Munchausen Syndrome By Proxy" has appeared in medical literature since at least 1977. Cf. State v. Southern, 1999 MT 94, 59, 294 Mont. 225, 59, 980 P.2d 3, 59 (holding that microscopic hair comparison evidence was not novel because the Court had considered se
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Montana DUI Attorneys
DUI Lawyers
|