For the Defense - Vol. 4, Issue 4 - 13

on the United States Department of Justice's
description of SANE program operations which
states,
[t]he SANE or other medical personnel (e.g.,
emergency department physicians or nurses)
first assess the victim's need for emergency
medical care and ensure that serious injuries
are treated. After the victim's medical
condition is stabilized or it is determined
that immediate medical care is not required,
the SANE can begin the evidentiary
examination.96
The decision found that a SANE examination is
a "forensic exam with medical features...geared
for the preparation, collection, evaluation and
disposition of evidence, and all medical treatment
provided is relative to the patient being a victim
of a sexual crime."97 As such, the SANE nurse's
testimony was found to be inadmissible as it was
testimonial in nature.
In State v. Romer, the decision found that the
forensics' role of the SANE overrode any medical
role of the nurse.98 In Romer, the SANE testified
that after the victim was asked what happened
response was:
"That's when he sexually assaulted me
on the floor. He took off my pants and
underwear and penetrated me." I asked
Jessica, and this is me asking Jessica, I asked
Jessica what she meant by penetrated me.
Jessica replied, and this is her words, 'penis
in my vagina." End quote. Then Jessica
continued, and this is in quotes, "I kept
telling him no and to stop. I don't remember
after that." End quote. I asked Jessica if
Anthony was wearing a condom and she
replied no.99
The decision found that the fact that the
defendant was not wearing a condom was
relevant for medical treatment. However, the
specific accusations of criminal acts made the
statements accusatory undermining the medical
purpose.100 As such, the testimony was found to be
inadmissible.101
In State v. Miller, the court found that the
primary purpose of the SANE exam was to collect
and preserve evidence. The Miller court sets
out the factors to be considered in determining
whether a statement is testimonial as:

(1) Would an objective witness reasonably
believe such a statement would later be
available for use in the prosecution of a crime?
(2) Was the statement made to a law
enforcement officer or to another government
official?
(3) Was proof of facts potentially relevant
to a later prosecution of a crime the primary
purpose of the interview when viewed from an
objective totality of the circumstances, including
circumstances of whether:
(a) the declarant was speaking about
events as they were happening, instead of
describing past events;
(b) the statement was made while the
declarant was in immediate danger, i.e.,
during an ongoing emergency;
(c) the statement was made in order to
resolve an emergency or simply to learn what
had happened in the past; and
(d) the interview was part of a governmental
investigation? and
(4) Was the level of formality of the statement
sufficient to make it inherently testimonial,
e.g., was the statement made in response to
questions, was the statement recorded, was
the declarant removed from third parties,
or was the interview conducted in a formal
setting such as in a governmental building?102
In analyzing the above factors, the court found
that even though a four-year-old would have
no idea that the evidence collected by the SANE
would be used, "[f]rom an objective witness's
perspective, the witness could expect that the
physical evidence collected by a nurse and the
witness' statements made to the nurse could be
used for the prosecution of a crime."103 This is
contrary to the U.S. Supreme Court decision in
Ohio v. Clark. The Miller court found that the
SANE was not the equivalent of law enforcement
or government official, that the statements were
about past events, and the level of formality of
the statements was not to the level to make them
inherently testimonial.104
Looking at the primary purpose of the exam,
the court noted that the SANE testified that she
questioned the victim "to know where on the
body I need to collect evidence which is part of our

Vol. 4, Issue 4

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For The Defense

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For the Defense - Vol. 4, Issue 4

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