For the Defense - Vol. 4, Issue 3 - 49

Fidler decision spells out further consideration to
determine "reliability" regarding child declarants.
"The main consideration for determining when
hearsay statements made by a child witness are
sufficiently reliable is whether the child declarant
was particularly likely to be telling the truth
when the statement was made."60 Therefore, a
statement made by a victim who is twelve years of
age or younger made to a SANE nurse may meet
the exception under the Tender Years Doctrine,
although an analysis under the Confrontation
Clause is still necessary.
For a victim who is over 12 years of age,
the Statement Made for Medical Diagnosis or
Treatment hearsay exception may apply for
statements given to SANE nurses for treatment of
the victim. Under Pa.R.E 803(4) a statement made
for medical diagnosis or treatment is a statement
that:
(A) is made for-and is reasonably pertinent
to-medical treatment or diagnosis in
contemplation of treatment; and
(B) describes medical history; past or
present symptoms, pains, or sensations, or
the inception or general character of the
cause or external source thereof; insofar
as reasonably pertinent to treatment, or
diagnosis in contemplation of treatment.61
"The medical treatment exception provides
that testimony repeating out-of-court statements
for the purposes of receiving medical treatment is
admissible as substantive evidence."62 In order to
qualify for admission under the Pa.R.E. 803(4) the
statement must be necessary for the diagnosis and
treatment of a medical issue. 63 In Commonwealth
v. Smith, the Pennsylvania Supreme Court found
that the identification of an alleged child abuser
by the victim to a nurse providing treatment did
not meet the medical exclusion from hearsay as the
identification was not necessary for treatment of a
medical condition.64 The Smith court explained,
[A] person's statements, "I was hit by a car,"
made for the purpose of receiving medical
treatment would come within the [medical]
exception. It is important for doctors to
know how the person sustained the injuries.
However, a person's statement, "I was hit by
the car which went through the red light,"

would not come within the exception, or
at least that part of the statement which
indicated that the car "went through the
red light" would not. It is inconsequential
and irrelevant to medical treatment to
know that the car went through the red
light.65
Based on the Smith decision, when a SANE
nurse conducting the examination asks questions
regarding how the assault occurred, only the
answers which were necessary and proper for
receiving medical treatment will meet the hearsay
exclusion under Pa.R.E. 803(4). As such, care
should be given in crafting the questions to avoid
suppression of the victim's testimony later.

The Confrontation Clause
After meeting either an exception or exclusion
from the Pennsylvania hearsay rules, the court
must then analyze whether the proposed SANE
nurse testimony would violate the Confrontation
Clause. The Confrontation Clause of the Sixth
Amendment of the United States Constitution
applies to the states through the Due Process
Clause of the Fourteenth Amendment. It provides
that in all criminal prosecutions, the accused
shall enjoy the right to be confronted with
the witnesses against him.66 Additionally, the
Pennsylvania Constitution, Article 1, §9 gives
criminal defendants "a right to be heard by
himself and his counsel, to demand the nature
and cause of the accusation against him, and to
be confronted with the witnesses against him..."67
The Confrontation Clause's primary concern
is testimonial hearsay:"...the Framers would not
have allowed admission of testimonial statements
of a witness who did not appear at trial unless
he was unavailable to testify, and the defendant
had a prior opportunity for cross-examination."68
While the decision in Crawford v. Washington,
does not define the term "testimonial
statement," it describes testimonial statements
as: "ex parte in-court testimony or its functional
equivalent-that is, material such as affidavits,
custodial interrogations, prior testimony that
the defendant was unable to cross-examine, or
similar pretrial statements that declarants would
reasonably expect to be used prosecutorially."69

Vol. 4, Issue 3

l

For The Defense

49
For the Defense - Vol. 4, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 3
