Where the declarant is a child, we require extra care in determining the declarant's intent: "[T]he proponent of Rule 803 (4) statements must present evidence establishing that the child had the requisite intent, by showing that the child made the statements understanding that they would further the diagnosis and possible treatment of the child's condition." State v. Wade, 136 N.H. 750, 755, 622 A.2d 832, 835 (1993). "This finding may be based upon circumstantial evidence."
We have explained that diagnosis need not inevitably result in treatment for statements to qualify under the rule; however, the diagnosis must have been sought with the purpose of treatment, if necessary. State v. Wade, 136 N.H. 750, 755, 622 A.2d 832 (1993). Thus, the statements must have been made for the purpose of "medical diagnosis or treatment, as opposed to solely for the purpose of enabling a physician to testify."
The record must affirmatively demonstrate the child made the statements understanding that they would further the diagnosis and possible treatment of the child's condition. See State v. Wade, 136 N.H. 750, 622 A.2d 832 (1993); R.S. v. Knighton, 125 N.J. 79, 96, 592 A.2d 1157, 1166 (1991); Renville, 779 F.2d 430. Cases from other jurisdictions that apply the same standard to such a declarant as is applied in situations involving adults ignore the underpinning of the rule.
The record must affirmatively demonstrate the child made the statements understanding that they would further the diagnosis and possible treatment of the child's condition. See State v. Wade, 136 N.H. 750, 622 A.2d 832 (1993); R.S. v. Knighton, 125 N.J. 79, 96, 592 A.2d 1157, 1166 (1991); Renville, 779 F.2d 430. Cases from other jurisdictions that apply the same standard to such a declarant as is applied in situations involving adults ignore the underpinning of the rule.
This is because "[i]t is difficult for a court to discover whether a young child completely understands the purpose for which information is being obtained from her." State v. Wade, 136 N.H. 750, 755 (1993). Thus, it is necessary to establish that the child had the requisite intent "by showing that the child made the statements understanding that they would further the diagnosis and possible treatment of [her] condition."
This is because "[i]t is difficult for a court to discover whether a young child completely understands the purpose for which information is being obtained from her." State v. Wade, 136 N.H. 750, 755 (1993). The defendant argues that the first part was not met because E.M.
As the proponent of the statement, the defendant had the burden of proving that it met the requisites of Rule 803(4). See State v. Wade, 136 N.H. 750, 755 (1993). We hold that the trial court reasonably determined that he failed to meet this burden.
A declarant's motive in making the statement must be consistent with seeking diagnosis or treatment. See, e.g.,State v. Hildreth, 582 N.W.2d 167, 169-70 (Iowa 1998); State v. Wade, 622 A.2d 832, 835 (N.H. 1993). The trial justice considered this dilemma, noting:
"The guarantee of trustworthiness is that no one would willingly risk medical injury from improper treatment by withholding necessary data or furnishing false data to the physician who would determine the course of treatment on the basis of that data." State v. Wade, 136 N.H. 750, 622 A.2d 832, 835 (1993) (quotation omitted). The defendant argues that the statements at issue are not trustworthy because the statements were made to an emergency room physician with whom the victim had "no prior relationship of trust," the statements were made while the victim was intoxicated, and the victim subsequently renounced the contents of the statements under oath.
Id. at 303-04, 726 A.2d at 1278 (quotation omitted). While we have required affirmative evidence on the record of a child declarant's intent, see State v. Wade, 136 N.H. 750, 755, 622 A.2d 832, 835 (1993), this intent can be established by circumstantial evidence. See Lowe, 140 N.H. at 273, 665 A.2d at 742.