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Cobb judge to weigh whether hearsay can ID accused child molester
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Cobb judge to weigh whether hearsay can ID accused child molester

Cobb judge to weigh whether hearsay can ID accused child molester
Photo Credit: Getty Images/iStockphoto

Cobb judge to weigh whether hearsay can ID accused child molester

You have probably heard the “Objection! Hearsay!” line in your favorite legal drama. 

A Cobb County judge must decide whether alleged hearsay can be used against an accused child molester. 

The Georgia Supreme Court unanimously ruled that when the case against Antonio Almanza goes to trial, hearsay evidence identifying him as the alleged abuser is not categorically barred under Georgia’s new rules of evidence. 

Cobb County Sheriff's Office
Booking photo for Antonio Tapia Almanza, dated May 28, 2014.
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Cobb judge to weigh whether hearsay can ID accused child molester

Photo Credit: Cobb County Sheriff's Office
Booking photo for Antonio Tapia Almanza, dated May 28, 2014.

In May 2014, a Cobb County girl told her mother that a relative had molested her. The mother alerted authorities, who told her to take the child to the doctor for an examination. 

At the hospital, the mom told an ER doctor that Almanza had touched and raped the girl. Almanza was indicted for aggravated child molestation, aggravated sexual battery, statutory rape, child molestation, and incest. 

Since that outcry, the mom and the little girl have vanished, and prosecutors have not been able to find her. They believe the pair may have left the country. The Cobb County District Attorney sought to have the mother's statements at the hospital, and later to the girl's pediatrician, admitted as evidence. 

Almanza's lawyers objected, saying that the testimony from doctors does not fall under the typical medical exceptions to the hearsay rule. Hearsay testimony is usually barred because defendants have the right to cross-examine witnesses, which they cannot do if the speaker is not in court. The trial judge, then the Court of Appeals, said that the testimony was inadmissible hearsay. 

WSB legal analyst Phil Holloway says one exception to the hearsay rule is for medical diagnosis and treatment – and what is considered "pertinent." 

"If a child or a parent goes to the doctor and says the child has been molested or abused, it's important for the doctor to know how the child was molested or abused so the child can be treated properly," Holloway explains, adding, "What's not so important to diagnosis or treatment is the alleged identity of the abuser." 

Prosecutors contended, however, that the statements should be allowed under newer federal evidence rules which pushed out Georgia's older ones. 

Cobb County District Attorney Vic Reynolds says he is pleased with the justices' "well thought-out" opinion. 

"The mother of that victim had made statements to the treating physicians about what happened to her daughter. We believe that should have been admissible in a court of law based on the opinions that we've read throughout the United States," Reynolds says. 

He adds, "We were convinced in the end that the Supreme Court would agree with us and rule in our favor, and thankfully, they did." 

Holloway says the justices essentially punted the case back to the trial judge to decide, using the newer federal rules of evidence, whether the mother's statements can be heard by a jury. 

"It's like a math teacher telling you got the problem wrong because you worked the equation wrong, even if you may have stumbled onto the correct final answer," he says. "The Cobb judge may well reach the same conclusion because under federal precedent, the state has a tough hill to climb." 

Reynolds is confident the statements pass the test, noting that the justices said both the trial court and the Appeals Court were wrong to use Georgia's outdated evidence rules in excluding the mom's statements. He calls the state Supreme Court's ruling a "strong opinion in favor of all victims of crime.”

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