Home / Uncategorized / CLARK v.COMMONWEALTH

CLARK v.COMMONWEALTH



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


CLARK

v.

COMMONWEALTH


NOVEMBER 30, 1999

Record No. 1425-97-4

JACK ENIC CLARK

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

F. Bruce Bach, Judge

Present: Judges Benton, Willis and Senior Judge
Cole

Argued at Richmond, Virginia

OPINION BY JUDGE MARVIN F. COLE

Peter D. Greenspun (Peter D. Greenspun &
Associates, P.C., on briefs), for appellant.

John H. McLees, Jr., Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


Jack Enic Clark was convicted by jury trial of
one count of sodomy and one count of statutory rape. On November
8, 1996, two months before trial, appellant moved for, inter
alia, disclosure of the complaining witness’ prior medical
records and an independent medical examination ("IME")
of the complaining witness. At a November 15, 1996 pretrial
hearing, appellant argued that he had a due process right to
present evidence in his favor. Specifically, appellant contended
that the IME was necessary to defend the statutory rape charge
and "extremely important" to adequately address and
explain the physical findings of the sexual assault nurse
examiner ("SANE"). Appellant informed the trial court
that the complaining witness has "made prior
complaints," and the prosecutor pointed out that the
complaining witness had a pelvic examination "in the early
part of 1995." Following argument, the trial court ruled
that it did not have authority to require the complaining witness
to submit to such tests and that to do so would place a
tremendous chill on reporting and prosecution of such criminal
activity. Appellant contends the court erred in denying his
motion to require the complaining witness of a sexual assault to
submit to an IME.

The following month, during a December 13, 1996
pretrial hearing pursuant to CodeSect. 18.2-67.7, often
referred to as the "rape shield law," the prosecutor
acknowledged that the complaining witness made a complaint that
her "adoptive step-father" sexually abused her,
resulting in a 1995 pelvic examination.
[1]

Whether a trial court has the authority to
require an alleged victim of a sexual assault to submit to an IME
is an issue of first impression in Virginia; therefore, we look
to other jurisdictions for guidance.

FEDERAL CASES

Although the federal courts have yet to address
whether a trial court may require a complaining witness to submit
to a physical examination, the United States Supreme Court
addressed whether the government could require a criminal
defendant to submit to a surgical procedure to remove a bullet
that was alleged to be evidence of the crime. See Winston
v. Lee
, 470 U.S. 753 (1985). Applying the balancing test put
forth in Schmerber v. California, 384 U.S. 757 (1966), the
Court ruled the surgical procedure unreasonable under the Fourth
Amendment. See Winston, 470 U.S. at 763-66.

In Gilpin v. McCormick, 921 F.2d 928
(9th Cir. 1990), the United States Court of Appeals for the Ninth
Circuit addressed Gilpin’s unsuccessful request for a psychiatric
examination of an eleven-year-old female and a twelve-year-old
female he was convicted of sexually assaulting. Gilpin argued
that the examinations were "necessary to indicate the
presence or absence of Rape/Trauma Syndrome (RTS)." Id.
at 930. Gilpin argued that because "Montana has permitted
the state to have an expert examine a complainant and offer her
opinion at trial," it was "a denial of due process to
refuse" his request for "the reciprocal
opportunity." Id. at 930-31. The Ninth Circuit found
no reciprocal authority or denial of due process, noting that the
Montana cases upon which Gilpin relied involved situations where
the complainant "volunteered to be examined by a
psychiatrist" and that, under Montana law, an examination
could not be compelled unless "a party’s mental or physical
state is in controversy." Id. at 931. According to
the court, "[e]ven were Gilpin not to base his petition on
lack of reciprocity, this circuit has never held that the defense
may compel witnesses to be examined." Id.

The court concluded its analysis as follows:

We are fully aware of widespread public
concern over child sexual assault and abuse cases and the
passions they arouse. Appellant invokes the specter of pliant
children being hectored by psychiatrists and social workers
into traducing scores of innocent adults with the stain of
child abuse. But new constitutional rights cannot be found
for every new passion that may drive criminal prosecutions.
It is clear that Montana’s refusal to compel child sexual
assault victims to undergo psychiatric examination does not
violate constitutional due process.

Id. at 931-32.

The United States Court of Appeals for the
Fifth Circuit has held that a federal trial "court has broad
discretion in determining whether to compel a witness to undergo
a psychiatric examination." United States v. Raineri,
670 F.2d 702, 709 (5th Cir. 1982). "In exercising this
discretion the court must consider the infringement on a witness’
privacy, the opportunity for harassment, and the possibility that
an examination will hamper law enforcement by deterring witnesses
from coming forward." Id.

STATE CASES

Numerous states have addressed the issue of
whether a trial court can order a complaining witness to submit
to a physical examination. Most states addressing the issue have
found to varying degrees that a trial court has discretion to
order such an examination. One of the earliest opinions on the
issue originated from the Alabama Court of Criminal Appeals. See
Lanton v. State, 456 So. 2d 873 (Ala. Ct. App. 1984). In
that case, "the child had been examined by a physician not a
gynecologist." Id. at 874. The trial judge denied the
defendant’s motion for a physical examination of the
thirteen-year-old alleged rape victim by a competent
gynecologist.

[The] physician testified as a defense
witness that she could not determine whether or not the
prosecutrix had engaged in sexual intercourse because the
victim was too tense. The defendant alleged in his motion
that he "has reason to believe an examination by a
competent gynecologist would reveal that said . . .
[prosecutrix] has not engaged in sex."

Id.

Noting the absence of law on the issue, the
court held that such a determination is "’a matter of
judicial discretion with the trial court, to be exercised only in
cases of extreme necessity.’" Id. at 873-74. The
court held that the "’granting or refusal of an order for a
physical examination of the prosecutrix . . . will not be
reversed except for a manifest abuse of such discretion.’" Id.
at 874 (quoting C.J.S. Criminal LawSect. 80 (1952)).

In People v. Nokes, 228 Cal. Rptr. 119,
123-27 (Cal. App. Dep’t Super. Ct. 1986), a magistrate refused to
order a physical examination of the defendant’s son in a sexual
abuse case. The son had not been examined by a physician. A trial
judge later reversed the magistrate and dismissed the
information. In reversing the trial court and upholding the
magistrate’s decision, the California Court of Appeals held that
whether to order the examination "was within the discretion
of the magistrate." Id. at 125. The court approved
the manner in which the magistrate balanced the magnitude of the
intrusion upon the complaining witness with the possibility of
gaining exculpatory evidence. See id. at 122, 125.
Although the Court of Appeals held that "the method of
examination may have been reliable in the abstract," it
further noted that "the reliability of the examination with
respect to defendants’ right to present an affirmative defense
was virtually nonexistent." Id. at 126.

In Turner v. Commonwealth, 767 S.W.2d
557 (Ky. 1988), the Kentucky Supreme Court held that the
defendant, "as a matter of due process and fairness, was
entitled at least to have the alleged victim examined by an
independent gynecologist in preparation for trial." Id.
at 559. The defendant, Turner, was convicted of raping his
four-year-old daughter. A gynecologist examined the complaining
witness in response to a request by the Department of Social
Services. The gynecologist testified that the complainant had
healed injuries to her hymenal ring at five locations or
positions. See id. at 558. Because of the healing,
the gynecologist could express no opinion about the age of the
injuries. Although the gynecologist acknowledged that small girls
sometimes do things that can rupture the hymenal ring, "she
expressed the opinion that some of the injuries to the alleged
victim were caused by penile penetration." Id. at
559. The Kentucky Supreme Court explained:

Perhaps in the case of sexually active
females a vaginal examination, remote in time from an
allegation of sexual abuse, would reveal little of probative
value as to whether sexual assault had occurred, but in the
case of a four-year-old child, evidence of tears in the
hymenal ring was a significant circumstance, and testimony
that penile penetration caused the injury was a significant
incriminating factor.

In this case, the alleged victim was only four
years old. The physical examination of the child by an
independent expert might have permitted the appellant to offer
evidence to contradict that offered by the Commonwealth as to
whether there were, in fact, any injuries to the hymenal ring. If
such an injury was found, the examination by an independent
expert may have enabled appellant to contradict testimony for the
Commonwealth that the location of the injuries indicated the
probability of penile penetration. In any event, the examination
of the alleged victim by an independent expert and consultation
with that expert as to the results of the examination would have
been of material assistance to the appellant in his
cross-examination.

Id. at 559.

Noting the need to balance the accused’s rights
with those of the complaining witness, the court explained:

In a case such as this, the critical
question is whether the evidence sought by the appellant is
of such importance to his defense that it outweighs the
potential for harm caused by the invasion of the alleged
victim’s privacy and the probability that the prospect of
undergoing a physical examination might be used for
harassment of a prosecuting witness.

We must be vigilant not to open the door to the
opportunity for a defendant in a criminal case to invade the
privacy of a prosecuting witness or to harass the witness. In
this case, a physical examination of the four-year-old child
might have disclosed evidence to completely refute the charge,
and at the very least, would have been of enormous benefit to the
appellant in the conduct of the trial.

Id.

Shortly after Turner, the Rhode Island
Supreme Court addressed the issue in State v. Ramos, 553
A.2d 1059 (R.I. 1989). There, the defendant was tried and
convicted of sexually assaulting a twelve-year-old female. A
gynecologist employed as an expert witness for the state examined
the complaining witness, who was then thirteen years old,
"for evidence of vaginal penetration." Id. at
1061.

Based upon the examination, the doctor found
"penetration possible but not definite." Although the
hymen of a thirteen-year-old girl normally covers about 50
percent of the vaginal entrance so that one finger may be
admitted with some difficulty, [the doctor] testified that she
could easily insert two fingers into the [complainant's] vagina
during the examination without any resulting discomfort. The
state’s expert physician stated that although she found no
obvious caruncle or torn edges of the hymen generally associated
only with childbirth or very traumatic intercourse, [the
complainant's] hymen was stretched, allowing for easy penetration
into her vagina. Thus, comparing her examination of [the
complainant] to vaginal examinations performed on other
thirteen-year-old females, [the doctor] concluded that she was
"fairly certain" [the complainant's] vagina had been
penetrated.

Id.

The trial judge refused to order the
complaining witness to submit to an independent medical
examination. The Rhode Island Supreme Court affirmed the trial
judge’s decision, finding no abuse of discretion in denying
Ramos’ request. See id. at 1062. The court
established the following procedure to follow in such situations:

[A] trial justice has discretionary power
to require a witness in a criminal trial to submit to an
independent physical examination only under the most
compelling of circumstances. In situations in which the
defendant has shown substantial need and justification and no
violation of substantial rights will result, the trial
justice has discretionary power to order the complainant to
undergo a physical examination. The practice of granting
physical examinations of criminal witnesses must be
approached with utmost judicial restraint and respect for an
individual’s dignity. In determining whether to order an
independent examination, the trial justice should consider
(1) the complainant’s age, (2) the remoteness in time of the
alleged criminal incident to the proposed examination, (3)
the degree of intrusiveness and humiliation associated with
the procedure, (4) the potentially debilitating physical
effects of such an examination, and (5) any other relevant
considerations.

Id.

Two years after Ramos, the Colorado
Supreme Court considered a defendant’s request for involuntary,
independent psychological and physical examinations of a child
who was an alleged victim of sexual abuse. See People
v. Chard
, 808 P.2d 351 (Colo. 1991). Relying on prior case
law relating to involuntary psychological examinations, the court
applied Colorado law to adopt the "’compelling reason or
need’" test with regard to involuntary physical
examinations. Id. at 353 (citing People v. Estorga,
612 P.2d 520, 523-24 (Colo. 1980)). The court noted a "split
of authority [among the states] with regard to a trial court’s
power to order an involuntary physical examination of a child
victim in the absence of statutory authority." Id. at
355. The court declined to adopt the view held in a minority of
jurisdictions, "most notably North Carolina and Texas,
[that] have held that in the absence of specific statutory
authority, a trial court may not order an unwilling witness to
submit to a physical examination." Id. (citing State
v. Hewett
, 376 S.E.2d 467, 472 (N.C. App. 1989); State ex
rel. Wade v. Stephens
, 724 S.W.2d 141, 143-44 (Tex. Ct. App.
1987)).
[2]

Instead, the Colorado Supreme Court
"adopt[ed] the majority view and h[e]ld that a trial court
may exercise its discretion to order an involuntary physical
examination when a defendant demonstrates a ‘compelling need or
reason’ for the examination." Id. at 356. Quoting the
balancing test and factors to consider put forth in Ramos,
the Colorado Supreme Court explained:

The majority of courts considering the
issue of whether a trial court has the power to order a
compelled physical examination of a child victim in the
absence of statutory authority have sought to balance a
defendant’s right to discover possible exculpatory evidence
against the victim’s privacy interests. These courts have
attempted to strike the proper balance by holding that it is
within a trial court’s discretion to order an involuntary
physical examination, but only on a showing by a defendant of
a "compelling need or reason" for the examination.

Id. at 355 (citation omitted).

The court added:

The highly intrusive nature of a physical
examination raises the same concerns about emotional trauma,
embarrassment, and intimidation to the child victim that are
present with regard to a psychological examination. These
concerns must be balanced against a defendant’s right to
discovery. We therefore adopt the majority view and hold that
a trial court may exercise its discretion to order an
involuntary physical examination when a defendant
demonstrates a "compelling need or reason" for the
examination. In exercising this discretion, the trial court
must "’balance the possible emotional trauma,
embarrassment or intimidation against the likelihood of the
examination producing material, as distinguished from
speculative, evidence.’"

Id. at 355-56 (quoting Estorga,
612 P.2d at 523).

In State v. Delaney, 417 S.E.2d 903, 907
(W. Va. 1992) (en banc), the defendant contended the trial
court erred in denying his request for his court-appointed expert
to physically examine children who were alleged sexual assault
victims who had previously been examined by the state’s expert.
The West Virginia Supreme Court adopted the "’compelling
need or reason’ test" put forth in Ramos. Id.
at 907. The court held as follows:

We believe the guidelines established in Ramos
are a reasonable method of balancing the defendant’s need for
the examinations against the victim’s right to privacy. Thus,
in order for a trial court to determine whether to grant a
party’s request for additional physical or psychological
examinations, the requesting party must present the judge
with evidence he has a compelling need or reason for the
additional physical or psychological examinations. In making
the determination, the judge should consider (1) the nature
of the examination requested and the intrusiveness inherent
in that examination; (2) the victim’s age; (3) the resulting
physical and/or emotional effects of the examination on the
victim; (4) the probative value of the examination to the
issue before the court; (5) the remoteness in time of the
examination to the alleged criminal act; and (6) the evidence
already available for the defendant’s use.

Id. See also State v.
Barone
, 852 S.W.2d 216, 217, 221-22 (Tenn. 1993) (ruling that
a trial judge has inherent power to require examination when a
defendant demonstrates a compelling need, and adopting the
factor-based balancing test "to provide trial courts with
guidance in determining whether a compelling need exists for
ordering a compelled physical examination").

Most states that have addressed the issue have
held that a trial court has discretion to require an alleged
victim to submit to an additional medical examination. See,
e.g., State v. Nguyen, 726 A.2d 119, 125 (Conn.
App. Ct. 1999) (applying abuse of discretion standard in
reviewing denial of defendant’s motion for additional physical
examination; holding that, in cases involving a child who is an
alleged victim of sexual assault, courts must balance "the
protection of the victim against the need of the defendant to
present a defense"); State v. Garrett, 384 N.W.2d
617, 619 (Minn. Ct. App. 1985) (requiring movant to demonstrate
compelling reason before trial court may exercise its discretion
in this area); State v. D.R.H., 604 A.2d 89, 95-96 (N.J.
1992) (holding that trial court may order a physical examination
of a child who is an alleged victim of sex abuse only when
satisfied that the defendant has made a sufficient showing that
such exam can produce competent evidence that has substantial
probative worth and that "if admitted and believed by the
trier of fact, that evidence could refute or neutralize
incriminating evidence or impugn the credibility of the
prosecution witness"; also, "the court must be
satisfied that the defendant’s need clearly outweighs the
possible harmful consequences to the alleged victim"
requiring movant to demonstrate substantial need that outweighs
need to protect complaining witness (citing Turner, Ramos
and Chard)).

CONCLUSION

In our adversary system of criminal justice,
all relevant facts must be available to both the prosecution and
the defense in order to preserve the system’s integrity. In United
States v. Nixon
, 418 U.S. 683 (1974), the Supreme Court said:

The very integrity of the judicial system
and public confidence in the system depend on full disclosure
of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to
the function of courts that compulsory process be available
for the production of evidence needed either by the
prosecution or by the defense.

Id. at 709. Moreover, the Virginia
Supreme Court has said that "[calling for evidence in one's
favor] is central to the proper functioning of the criminal
justice system. It is designed to ensure that the defendant in a
criminal case will not be unduly shackled in his effort to
develop his best defense." Massey v. Commonwealth,
230 Va. 436, 442, 337 S.E.2d 754, 757 (1985). The right to
prepare for trial and to present an adequate defense "lie at
the heart of a fair trial, and when they are abridged, an accused
is denied due process." Gilchrist v. Commonwealth,
227 Va. 540, 547, 317 S.E.2d 784, 787 (1984).

We agree with the majority view and hold that a
trial court has discretion to require a complaining witness to
submit to an independent physical examination, provided the
defendant makes a threshold showing of a compelling need or
reason. Cf. Henshaw v. Commonwealth, 19 Va. App.
338, 343-46, 451 S.E.2d 415, 418-19 (1994) (relying on language
in Article I, Section 8 of the Virginia Constitution
"’[t]hat in criminal prosecutions a man hath a right . . .
to call for evidence in his favor,’" we held that accused
has a right to visit and inspect a crime scene under control of a
third party provided he "makes a showing that a substantial
basis exists" that "evidence relevant and material to
his defense" will be obtained). In addition, after a
defendant demonstrates a compelling need or reason, the trial
court is then required to balance the defendant’s due process and
Sixth Amendment rights to present evidence in his or her favor
against the complaining witness’ welfare. In determining whether
a compelling need has been demonstrated and in balancing the
rights of the defendant with the rights of the complaining
witness, the trial court should be guided by the factors and
considerations put forth in Chard, Ramos, Delaney
and Barone.

In making its determinations, the trial court
should consider, inter alia, "(1) the nature
of the examination requested and the intrusiveness inherent in
that examination; (2) the victim’s age; (3) the resulting
physical and/or emotional effects of the examination on the
victim; (4) the probative value of the examination to the issue
before the court; (5) the remoteness in time of the examination
to the alleged criminal act; and (6) the evidence already
available for the defendant’s use." Delaney, 417
S.E.2d at 907. In addition, the trial court should consider any
other material facts and circumstances pertinent to balancing the
competing interests and making a reasoned determination.

When considering the effects that a required
examination may have upon the complaining witness, the trial
court must be mindful of the due process rights of the
complaining witness. Accordingly, the complaining witness should
receive notice and have an opportunity to be heard before a
decision is rendered involving his or her rights. Cf. Daryl
v. Coler
, 801 F.2d 893, 899-907 (7th Cir. 1986) (holding that
visual examination of unclothed alleged minor victim by child
protection worker implicated Fourth Amendment concerns;
discussing advisability of adequate notice and/or consent); Troy
Andrew Eid, A Fourth Amendment Approach to Compulsory Physical
Examinations of Sex Offense Victims
, 57 U. Chi L. Rev. 873,
895-901 (1990) (discussing scope of Fourth Amendment protection
for complainants).

This decision is not intended to allow the
criminal justice system to further traumatize an alleged victim.
However, the rights of an accused may be clearly compromised when
access to relevant evidence is denied under certain
circumstances. The exercise of sound discretion by the trial
court best protects the interests of the complaining witness, the
accused and the Commonwealth.

Because the trial court ruled that it lacked
authority to grant appellant’s motion, we reverse and remand to
the trial court for further proceedings consistent with this
opinion.

Reversed and remanded.


Benton, J., concurring.

I join in the opinion’s "hold[ing] that a
trial [judge] has discretion to require a complaining witness to
submit to an independent physical examination provided the
defendant makes a sufficient threshold showing." Therefore,
I also would reverse the trial judge’s ruling.

I write separately because I do not agree with
the standard that the majority adopts to guide the determination
whether the accused has made a sufficient threshold showing. When
addressing the accused’s constitutional "right [under the
Virginia Constitution] . . . to call for evidence in his
favor," Va. Const. art. I,Sect. 8, the Supreme Court of
Virginia has generally used as a standard whether the accused has
made a showing of materiality. See, e.g., Massey
v. Commonwealth
, 230 Va. 436, 442, 337 S.E.2d 754, 757 (1985)
(holding that "the constitutional right to call for evidence
in one’s favor" includes the right to prove evidence
material to an accused’s defense); McHone v. Commonwealth,
190 Va. 435, 444, 57 S.E.2d 109, 114 (1950) (holding that no
constitutional violation was proved absent a showing that the
accused was deprived of "material evidence"); Bobo
v. Commonwealth
, 187 Va. 774, 779, 48 S.E.2d 213, 215 (1948)
(holding that the constitutional right of an accused to call for
evidence in his or her favor "includes the right to
interview material witnesses"). The Court has explicitly
ruled that "[w]hen [an accused] seeks disclosure of
evidence, the standard to be applied in determining its
materiality is whether ‘a substantial basis for claiming
materiality exists.’" Cox v. Commonwealth, 227 Va.
324, 328, 315 S.E.2d 228, 230 (1984). Thus, when an accused
establishes that evidence is material, "denying the
[accused] access thereto violate[s] her constitutional right ‘to
call for evidence in [her] favor.’" Id. at 328-29,
315 S.E.2d at 230.

Citing Cox, we have applied the same
standard in a similar context. In Henshaw v. Commonwealth,
19 Va. App. 338, 451 S.E.2d 415 (1994), an accused sought access
to a private residence to inspect, photograph, and measure the
purported crime scene. See id. at 339-40, 451
S.E.2d at 416. Ruling that the trial judge erred in refusing the
request, we held that "[t]he right ‘to call for evidence’ in
one’s defense is an ‘unqualified’ right, which is restricted only
by whether ‘a substantial basis for claiming materiality
exists.’" Id. at 344, 451 S.E.2d at 419 (quoting Cox,
227 Va. at 328, 315 S.E.2d at 230). I believe that this is the
appropriate standard to be used in this case, in which Jack Clark
relies upon the protection of Article I, Section 8 of the
Virginia Constitution "to call for evidence in his
favor."

We are not required to adopt the
"compelling need" test. Other courts have used their
state law as a basis for adopting an appropriate standard. See
State v. Barone, 852 S.W.2d 216, 221-22 (Tenn. 1993)
(cataloging the rulings of courts of various states and noting
that "state courts have adopted a number of approaches to
determining whether an accused sex-offender is entitled to a
compulsory physical examination of a complainant"). For
example, the Supreme Court of Kentucky, when faced with this
precise issue, ruled that the standard to be applied was whether
the "results of the examination would have been of material
assistance to the [accused]." Turner v. Commonwealth,
767 S.W.2d 557, 559 (Ky. 1988). See also State
v. Hewett
, 376 S.E.2d 467, 472 (N.C. App. 1989) (finding no
abuse of discretion and ruling that the accused "failed to
make a preliminary showing to the judge that the examinations
would be probative and were necessary").

In Virginia, the constitutional right of an
accused "’to call for evidence in his [or her] favor’ . . .
is central to the proper functioning of the criminal justice
system . . . [and] is designed to ensure that the [accused] . . .
will not be unduly shackled in his [or her] effort to develop
[the] best defense." Massey, 230 Va. at 442, 337
S.E.2d at 757. I believe that the standard announced in Cox
best implements this constitutional protection.

 

FOOTNOTES:

[1] In its initial August 1996 answer
to discovery in the juvenile and domestic relations district
court, the Commonwealth acknowledged that the complaining witness
accused another man, her "adopted father," of forcing
her to sleep with him in 1989. As a result, the complaining
witness was examined by "Dr. Richter who did not find any
evidence of injury; however she was not examined
internally." Absent evidence of sexual abuse, Child
Protective Services found the charge unsubstantiated.

In 1994, the complaining witness "left a
note for her mother that she remembered her adopted father
sexually abusing her." The Commonwealth stated that after
the complaining witness indicated sexual intercourse had
occurred, Dr. Anne B. Brown examined the complaining witness and
performed a "full gynecological evaluation."

[2] Under North Carolina case law,
"a [trial] judge has no discretionary authority to require
an unwilling witness to submit to [a psychological] examination." Hewett, 376 S.E.2d at 472.

In our view, a trial court would have the
discretionary power to permit a second physical examination of an
alleged sexual-abuse victim if the defendant shows the court that
the examination would be probative, that it is necessary to the
defendant’s preparation of his defense, and if the victim or the
victim’s guardian consents to the examination.

Id. The Court failed to explain what
would happen if an alleged victim refused to submit to an
examination deemed probative and material.

In State v. Drab, 546 So. 2d 54, 55
(Fla. Dist. Ct. App. 1989), the Florida Court of Appeals for the
Fourth District relied on a decision from the Court of Appeals
for the First District in holding that "where compelling
circumstances exist so that an accused may be deprived of his due
process rights unless the complaining witnesses are compelled to
undergo a physical examination, the state should be precluded
from introducing as evidence at trial the results of a previous
voluntary examination unless and until the complaining witnesses
voluntarily submit to a physical examination by a qualified
physician of the defendant’s choice." But see Fuller
v. State
, 669 So. 2d 273, 274 (Fla. Dist. Ct. App. 1996)
(Court of Appeals for the Second District noting that
"[a]lthough the trial court’s power to order a witness to
undergo an examination is limited, the trial court has the
authority to order an involuntary examination of a prosecution
witness where strong and compelling reasons exist";
explaining "there may be instances in which an examination
is necessary to protect a defendant’s rights and the examination
can be conducted without unusual harm to a victim"); State
v. Kuntsman
, 643 So. 2d 1172, 1173 (Fla. Dist. Ct. App. 1994)
(Court of Appeals for the Third District noting that Florida’s
"District Courts [of Appeal] have recognized a trial court’s
authority to order an involuntary examination of a prosecution
witness, but have limited the exercise of that authority to
situations where strong and compelling reasons exist").

Scroll To Top