Nursing the Truth: Developing a Framework for Admission of Sane Testimony under the Medical Treatment Hearsay Exception and the Confrontation Clause
Chapman, Julia, American Criminal Law Review
On February 25, 2006, a 79-year-old woman was admitted to Grant Hospital in Columbus, Ohio to undergo a forensic rape examination. (1) Earlier in the day, the woman told her daughter her caretaker had repeatedly raped her. (2) The rape exam, performed by a Sexual Assault Nurse Examiner (SANE) in the hospital's emergency department, served to treat the victim's injuries and to begin an investigation into her rape allegations. (3) During the exam, the SANE asked the elderly woman "what happened?" and recorded her statement as to the cause of her injuries. (4)
Based on the injuries and allegations, the victim's caretaker was charged with rape. (5) However, the victim died before the trial was completed, forcing the prosecution to rely in part on the victim's statements to the SANE as evidence of sexual conduct. (6) Although these statements were hearsay, the state sought their admission under the medical treatment exception. (7) The defendant claimed the introduction of victim's hearsay testimony violated his Sixth Amendment right to confront witnesses against him. (8)
Under the Supreme Court's recent Confrontation Clause jurisprudence, this challenge hinges on whether the statement was "testimonial"--whether it was objectively intended to be later used at trial. Accordingly, the case posed the question (9): was the SANE's testimony admissible under the medical hearsay exception as non-testimonial based on her role as a medical professional, or did her investigatory role deem it an inadmissible testimonial statement that would violate the defendant's Sixth Amendment Rights. (10)
This Note addresses the unique evidentiary position that the factual testimony of Sexual Assault Nurse Examiners as to victim statements occupies regarding the medical treatment hearsay exception and the Supreme Court's recent Confrontation Clause jurisprudence, expanded in Michigan v. Bryant. (11) Part Two of the Note outlines the development and features of SANE programs in hospitals across the country. Part Three provides background on the two primary legal elements of the admissibility of SANE testimony: the history and requirements of the medical treatment hearsay exception, and the complex background and non-linear evolution of the Constitutional right to confrontation leading up to the Court's decision in Bryant. Part Four highlights the complicating factors that arise when analyzing the testimonial nature of SANE statements.
Part Five synthesizes and compares competing resolutions currently taken by courts when determining whether to admit such testimony by SANEs under the medical treatment hearsay exception and the Confrontation Clause. Part Six suggests a more consistent multi-factor framework through which courts should determine the admissibility of factual testimony by SANEs in prosecutions where the victim does not testify. The proposed test relies in part on Bryant's assertion that the primary-purpose determination involves both the objective intent of the interviewer and the interviewee, which can lead to consistency in the admission of SANE hearsay testimony absent any express law enforcement involvement. This Note concludes that while Bryant clarified somewhat the distinction between testimonial and non-testimonial statements, the Court needs to continue to refine the distinction to increase the consistency and predictability of determining testimonial nature of non-police questioning.
II. WHAT IS A SANE NURSE? NURSES AS EMERGENCY TREATMENT PROVIDERS AND INVESTIGATORS
SANE nursing combines the medical treatment of victims of trauma, violence, and criminal activity through the traditional biological, psychological, and social elements of nursing with scientific investigation of the patient's condition. (12) In their medical role, forensic nurses specializing in the emergency treatment of sexual assault victims provide patient care in the form of emotional support, post-exposure prophylaxis for sexually transmitted diseases and emergency contraception, and referral to counseling services. …