For the Defense - Vol. 4, Issue 4 - 21

*	the victim received prior medical care before
the SANE was brought in;
*	the SANE is a member of a SART team;
*	the forms used by the SANE are law
enforcement, and not medical records;
*	the SANE's training and training manuals are
forensic and not medical in nature; and
*	the time elapsed between the alleged sexual
assault until the SANE exam, and prior
involvement of law enforcement.

"because my dad is touching me," to which the
SANE asked if it was his hands or penis. Prior to the
SANE bringing up the word penis that term had not
been involved in the interview. Furthermore, the
SANE is asking a leading question to achieve that
answer which could lead to a less reliable answer.
Similar to the detective in
Davis, it could be argued that, given the suggestive
questioning by the SANE, the victim has been
tainted.
For Defense Counsel
SANEs provide a service to victims of sexual
assault and there is an increase in the successful
prosecution of cases. Defense counsel must be
aware of the role of the SANE and be prepared
to challenge the admission of hearsay testimony
of a SANE that does not meet narrow hearsay
exceptions. In dealing with statements from victims
to a SANE, defense counsel should ask the following
questions:
*	Does the testimony meet a hearsay exception
under tender years or the medical exception?
*	If it meets a hearsay exception, does it violate
the defendants' right to confrontation of
witnesses?
*	If the testimony does not violate the right to
confrontation and meets a hearsay exception,
can taint be established in the way the SANE
questioned the victim?
When establishing whether the right to
confrontation has been violated, defense counsel
must attempt to show that the primary purpose of
the exam was for forensic purposes, not medical
care. It would be prudent to offer the National
Training Standards for Sexual Assault Medical
Forensic Examiners, and have the court take judicial
notice of the current Pennsylvania Bulletin which
has the requirements of evidence collection that a
SANE must follow. A properly trained SANE should
separate the medical exam from evidence collection.
To challenge hearsay testimony offered through
a SANE, defense counsel should elicit testimony
to show that the medical exam is pre-textual to
the forensic exam. One or more of the following
could serve as grounds for excluding SANE hearsay
testimony:
*	the SANE was specifically brought in to conduct
this exam to gather evidence;

The admissibility of victims' statements through
hearsay testimony from SANE nurses varies in
the different jurisdictions, with the common
thread being the record established at the trial
level, determining whether the exam is medical
or forensic. Defense counsel must attempt to
build a sufficient record showing that the SANE
has stepped from the shoes of being a medical
practitioner into the shoes of law enforcement,
gathering evidence for future prosecution.

PANTON

2955C
CMYK

90/78/39/30

NOTES:

9

RGB

22/58/92

U.S. v. Barker, 820 F.3d 167, 171 (5th Cir. 2016).
72
Ohio v. Clark, 135 S. Ct. 2173 (2016).
73
Id.
74
U.S. v. Barker, 820 F.3d at 172.
75
Id.
76
U.S. v. Gardiner, 65 M.J. 60, 65 (U.S. App Armed Forces
2007).
77
Id.
78
Id.
79
Id.
71

Click here to view and/or print the
full notes section for this article.

About the Author
Robert Kinnear is the owner
of Kinnear Law Office LLC,
a three-attorney firm with
offices in Erie and Warren,
Pennsylvania. He received his
J.D. from Widener University
School of Law graduating
cum laude, and his LLM in
Health Care Regulation from Loyola University.
He specializes his practice in criminal defense.

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