Court tightens guidelines for psychological exams of kids

Friday, Sept. 17, 2004 | 11:11 a.m.

CARSON CITY -- In what the dissenting opinion called a dramatic change in the law, the Nevada Supreme Court on Thursday tightened the guidelines for psychological examinations of children who are alleged victims of sexual assaults.

The court, in a majority decision written by Justice Deborah Agosti, said the alleged victims may refuse such examinations.

The case involves a man accused of four counts of sexual assault and 10 counts of lewdness with his 5-year-old daughter in Las Vegas. The child described various sexual acts that her father performed on her.

The man denies the allegation and suggests that the girl's mother coached the child to get custody.

The man asked for and received an order from District Judge John McGroarty for a psychological examination of the child in an effort to challenge the truthfulness of her story.

The man's case has been on hold during the appeal. In overturning the ruling, the Supreme Court said the defense is entitled to examine the victim only if the prosecution does and if the defense shows a "compelling need exists."

In determining "compelling need" the District Court must consider whether there is little or no corroboration of the offense except the testimony of the victim and whether there is a basis for believing the mental state of the victim may have affected his or her veracity.

Agosti also wrote that the victim may refuse to submit to an examination by the experts for the defendant. In that case, the prosecution and defense would be restricted to the use of generalized testimony about the victim's mental state by experts who have not examined him or her.

In a strongly worded dissent, Justice Bob Rose said, "This opinion represents the final step in the elimination of a defendant's opportunity to have a psychological examination of the alleged victim in a child sexual assault case and the end of any appearance of fairness in such criminal proceeding."

Rose said the majority decision is a "dramatic change in criminal law."

He said the competency of a witness to testify is "one of the critical threshold questions in the trial process." And it is especially present in the testimony of children.

In the past, Rose said the court "maintained an appropriate balance between the competing interests of protecting a child from unnecessary examinations and a defendant's right to a fair trial. No such observation can be made about the majority opinion in this case."