For the Defense - Vol. 4, Issue 4 - 11

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magine attending a jury trial where a defendant
stands accused of a sex crime, and during the
trial the victim never takes the stand to testify
against the defendant. The defendant never
receives the chance to confront and cross examine
the victim. The only evidence the jury hears comes
from a Sexual Assault Nurse Examiner (SANE), who,
during an exam of the victim, asked questions
regarding the crime and testifies about what the
victim stated. The defendant is convicted, never
being able to question his accuser. This scenario
happens frequently in the prosecution of sexual
assault cases in some jurisdictions.
In part one of this article, we explored the
history and training of the SANE, the statistical
data regarding victims of sexual assault and the
relationship of SANE intervention, and some of
the evidentiary issues surrounding the admissibility
of SANE testimony. In this issue, the article will
conclude by exploring the admissibility of SANE
testimony under the Confrontation Clause in
Federal and State courts as well as the issue of
taint as a means of attacking the admissibility of
statements received by a SANE from child victims.

Admissibility of SANE Testimony Under
the Confrontation Clause
The
	 Federal Courts
In U.S. v Barker,71 the testimony of a SANE nurse
was found to be non-testimonial. The court found
that the primary purpose of the questioning of
the four-and-a-half-year-old child victim was for
medical reasons. In coming to the decision, the
Court relies on the U.S. Supreme Court decision in
Ohio v. Clark.
In Clark, the court found that statements made
by a child to a preschool teacher regarding abuse
was non-testimonial.72 The Clark decision observed
that statements made to non-law enforcement
officers "are much less likely to be testimonial than
statements to law enforcement officers[,]" and that
the questioning was conducted during an ongoing
emergency.73
In Barker, the argument was raised that the
SANE, based on receiving a certification as a SANE,
converted the interview of the victim from a
medical evaluation to an evidence collection for
prosecution.74 The Court found that the teacher's
mandatory reporting obligations under Ohio law
did not alter the primary purpose of the interview,

and therefore the SANE certification did not
convert the primary purpose of the SANE from a
medical evaluation to evidence collection.75 As such
the testimony was found to be non-testimonial.
The U.S. Court of Appeals for the Armed Forces
found the testimony of the SANE, regarding
the statements of the victim, to be testimonial
in U.S. v. Gardiner. In Gardiner, the victim had
reported to her mother that her father touched
her inappropriately.76 The mother took the victim
to the Army Community Hospital for examination,
and a few days later a joint interview of the
victim by the sheriff's department and the human
services department was conducted.77 Immediately
following that interview the victim was examined
by a SANE. The SANE "described herself as a clinical
forensic specialist, conducted a forensic medical
examination" and "completed a report entitled
'Forensic Medical Examination Form.'"78 It was on
this form that the statements of the victim about
the defendant were noted.79
The court found several factors to distinguish
non-testimonial and testimonial testimony.
Those factors include:
*	 whether the statement was elicited by or
made in response to law enforcement or
prosecutorial inquiry;
*	 whether the statement involved more
than a routine and objective cataloging of
unambiguous factual matters; and
*	 whether the primary purpose for making, or
eliciting, the statement was the production of
evidence with an eye toward trial.80
The Court found that the evidence indicates
the SANE, who specialized in conducting forensic
medical examinations, performed a forensic
medical exam at the behest of law enforcement
with the forensic needs of law enforcement and
prosecution in mind.81 As such the testimony was
found to be testimonial and inadmissible.
The U.S. Court of Appeals for the Armed Forces
reached the opposite conclusion in U.S. v. Squire. In
Squire, a pediatrician was found to not be acting in
a law enforcement capacity during a sexual assault
exam of an 8-year-old victim.82
The victim in Squire was brought to the
pediatrician by family without the involvement
of law enforcement.83 The pediatrician was an
emergency room physician and did not conduct
a forensic examination of the victim. All the
Vol. 4, Issue 4

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For The Defense

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For the Defense - Vol. 4, Issue 4

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

Contents
For the Defense - Vol. 4, Issue 4 - 1
For the Defense - Vol. 4, Issue 4 - 2
For the Defense - Vol. 4, Issue 4 - Contents
For the Defense - Vol. 4, Issue 4 - 4
For the Defense - Vol. 4, Issue 4 - 5
For the Defense - Vol. 4, Issue 4 - 6
For the Defense - Vol. 4, Issue 4 - 7
For the Defense - Vol. 4, Issue 4 - 8
For the Defense - Vol. 4, Issue 4 - 9
For the Defense - Vol. 4, Issue 4 - 10
For the Defense - Vol. 4, Issue 4 - 11
For the Defense - Vol. 4, Issue 4 - 12
For the Defense - Vol. 4, Issue 4 - 13
For the Defense - Vol. 4, Issue 4 - 14
For the Defense - Vol. 4, Issue 4 - 15
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