For the Defense - Vol. 4, Issue 4 - 14

job as the Sexual Assault Nurse Examiner, we do
swabs, things like that, take pictures, I like to know
on the body where I need to be looking for those
things."105 The court found based on the totality
of the circumstances that the primary purpose of
the SANE medical exam was to collect evidence for
later prosecution.106
The Court held the SANE examination was for
the sole purpose to collect evidence that would
be used against at trial, and "even though [the
SANE] was not a law enforcement officer and
her questioning had no apparent formalities
usually accompanying a testimonial statement.
An objective witness would know that statements
made to a SANE could be used during a later
prosecution." As such, the statements were found
to be testimonial.107
Whereas, in People v. Garland, the decision
found that the testimony from the SANE nurse
regarding the victim's statements was nontestimonial. In Garland, the victim was referred to
a non-profit that provided "free and confidential
comprehensive services for sexual assault
survivors."108 The victim arrived for medical care
the morning of the assault with the nurse taking
a history and examining the victim at the same
time of arrival.109 The police investigation did
not occur until after the nurse's taking of history
and examination.110 The decision in Garland
distinguishes itself from Spangler finding:
[W]here the factual record was not
developed enough to determine whether
the victim's statements were testimonial,
we have a factual record that sufficiently
indicates that under the totality of the
circumstances of the complainant's
statements, an objective witness would
have reasonably believe that the
statements made to the nurse objectively
indicated that the primary purpose of the
questions or examination was to meet an
ongoing emergency.111
The decision found that even though the nurse
collected evidence during the exam after taking
the history, the nurse is required to report the
crime to police and turn over the evidence. The
nurse was not part of the police interview of the
victim or investigation of the crime and therefore
her testimony was admissible.112
The Ohio Supreme Court found that a nurse

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practitioner who was a specialist in sexual assault
treatment could testify regarding statements
made by the victim.113 The court found that the
exam was forensic, and that the victim had to sign
a law enforcement form.114 In the decision, the
court focused on the expectation of the declarant,
and not the intent of the questioning by the
nurse.115 "[A] reasonable person, questioning by
a nurse or other medical professional during an
emergency-room examination would appear to
serve a primarily health-care related function."116
The decision is an example of the courts finding a
medical purpose to be the primary purpose, even
though there is a forensic component of the exam.
In Pennsylvania, there is only one nonprecedential case regarding the admissibility of
SANE nurse testimony of a victim's statement. In
Commonwealth v. Howard, the Superior Court
of Pennsylvania found the testimony to be nontestimonial.117 The case involved a conviction
on 61 counts consisting of multiple counts of
Rape, Rape of a Child, Involuntary Deviate Sexual
Intercourse-By Force, Aggravated Indecent
Assault, Aggravated Indecent Assault of a Child,
Indecent Assault, Indecent Exposure, Incest of
a Minor Age 13-18, Endangering the Welfare
of Children, and Corruption of Minors-Sexual
Nature.
On August 13, 2014, C.H., the 11 year old
daughter of Shaun Howard (defendant) disclosed
to her mother that Mr. Howard had been touching
her inappropriately.118 At this time, C.H.'s mother,
called her friends Tiffany Lasher and Melissa
Butler for help, at which time it was decided that
C.H. should live with Tiffany Lasher.119 While C.H.
was living with Ms. Lasher, she was questioned
multiple times by Ms. Lasher and Mrs. Butler about
the statements that she made to her mother.120
During one of these conversations, C.H. disclosed
that Mr. Howard had been touching her body
and digitally penetrated her in the vagina and
anus with his fingers.121 C.H. also disclosed that
Mr. Howard began having intercourse with her in
January 2014 and that Mr. Howard made her "put
it in her mouth and use her hands on it."122 These
disclosures were mostly non-verbal responses
to questions asked by Mrs. Butler, which mainly
consisted of indicating specific body parts by
pointing when asked where she was touched.123
After C.H.'s conversation with Mrs. Butler, she



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
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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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For the Defense - Vol. 4, Issue 4 - 58
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