For the Defense - Vol. 4, Issue 4 - 12

questions asked were for the limited purpose
of treating the victim's medical condition to
facilitate medical care.84 Therefore, the court
found the primary purpose of the statements was
to facilitate medical treatment and as such was
non-testimonial.

The
	 State Courts
Jurisdictions in the State Courts are split on
whether testimony from a SANE is testimonial
under the Confrontation Clause. In cases where
the SANE's testimony was found to be nontestimonial, the record demonstrated that the
examination was conducted in accordance with
hospital procedure and the statements received
were during the course of an ordinary medical
examination.86 Another factor considered is the
role of the SANE nurse-specifically whether
the nurse was tasked with conducting a medical
examination or was working under a law
enforcement protocol with law enforcement
present.87 Courts that have found the testimony

to be non-testimonial acknowledge the dual role
of a SANE as a forensic nurse, but do not permit
the investigatory work of the nurse to overcome
the "primary purpose" of the medical purpose of
the exam.88
Where courts have found the testimony to
be testimonial, the focus has been on whether
the victim has already received treatment by
another medical staff member, and the way in
which the examination was completed.89 Some
courts have characterized SANEs as being "police
operatives" due to the evidence gathering
they do, leading the SANE to be viewed as
investigatory-not medical-personnel, making
the testimony testimonial.90 States that have
found the testimony of a SANE nurse to be nontestimonial include: Ohio, Connecticut, Florida,
and Colorado.91 States finding the testimony
testimonial include: Nevada, Tennessee,
Kentucky, Kansas, Michigan, and New Mexico.92
In People v. Spangler, the Michigan Court of
Appeals remanded the case to the lower court
to develop a record to determine whether a
victim's statement to the SANE was testimonial.
The Spangler court instructed the lower court to
consider the following in determining whether
the victim's statements were testimonial:
[T]he reviewing court must consider the
totality of the circumstances of the victim's
statements and decide whether the
circumstances of the victim's statements
objectively indicated that the statements
would be available for use in a later
prosecution, or that the primary purpose
of the SANE's questioning was to establish
past events potentially relevant to a
later prosecution, rather than to meet an
ongoing emergency.94
Most courts utilize a version of the Spangler
test in coming to varying decisions regarding
whether the primary purpose of the exam was
medical or forensic.
In State v. Ortega, the court found the
SANE nurse's testimony testimonial. The
Ortega decision found a SANE examination
to be a "forensic evaluation that has medical
examination features to it, and if it's appropriate,
to determine which forensic evidence needs
to be recorded or collected."95 The court relied

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For The Defense

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

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