Nursing the truth: developing a framework for admission of sane testimony under the medical treatment hearsay exception and the confrontation clause.

AuthorChapman, Julia
  1. INTRODUCTION

    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.

  2. 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. (13) As investigators, they document injuries resulting from the sexual assault, and collect and preserve evidence to be used later in criminal proceedings. (14) The multifaceted examination creates a "medico-legal record" that combines the victim's medical history, current physical assessment, and a comprehensive overview of the assault. (15) Throughout this extensive process SANEs, like all nurses and medical professionals, are bound by an ethical duty to prioritize patient interests above forensic expediency. (16)

    The SANE program was developed in the 1970s, after emergency room doctors, nurses, and nurse practitioners recognized a striking deficiency in emergency medicine: treatment resources for sexual assault victims reporting to emergency departments were inadequate and below the standard of care of other emergency department patients. (17) Emergency room staff were rarely trained to conduct medico-legal exams, and were often ill-equipped to address sexual assault victims' emotional trauma. (18) Specialized sexual assault treatment training emerged to fill this void in emergency medicine. (19) Thus, SANE programs began not as an investigative tool, but as a specialized treatment option for an underserved group of emergency room patients (20) and sexual assault emergency nursing has grown into the largest specialty of forensic nursing in the United States. (21)

    To treat sexual assault patients as SANEs, registered nurses must undergo training to ensure they can carry out the medical-legal functions of the position effectively. (22) A physician specializing in gynecology typically provides medical training, and forensic training is commonly provided by local police and staff from a prosecuting attorney's office. (23) The training program clarifies the SANE's role in an emergency department; provides specialized medical training on testing and treatment of sexual transmitted diseases, testing and prevention of pregnancy, and injury assessment; offers psychological training on typical victim responses and crisis intervention; and provides forensic training including documentation of injuries, forensic photography, and courtroom testimony preparation. (24)

    In their forensic role, SANEs traditionally counsel victims on the process of reporting a sexual assault and prepare an evidentiary rape kit (25) for victims who choose to report the assault. (26) During the exam, the victim often describes the assault and details the events leading up to it. (27) SANEs also maintain the chain of evidence and testify in court as to the proper handling of evidence. (28) However, any evidence collected by the SANE during the forensic exam is turned over to law enforcement only with the victim's consent. (29) Finally, if charges are filed, SANEs may be called to testify in court regarding the victim's injuries. (30)

    It is the SANE nurse's dual medical and investigatory role that calls into question what purpose she is actually serving: is she a nurse or is she an investigator acting as an arm of the police department? (31) Do victims make statements to SANEs for the purpose of medical treatment or for later use at a trial? (32) These distinctions are critical to the admissibility analyses of both the medical treatment hearsay exception and the Confrontation Clause. (33)

  3. HEARSAY AND THE CONFRONTATION CLAUSE IN THE SANE CONTEXT

    Courts are divided on the issue of whether sexual assault victims' statements to SANEs describing the assault are admissible at trial where the victim is unavailable to testify. (34) Such testimony faces two hurdles to admissibility: the court must determine whether the SANE's testimony as to the victim's description of the assault is admissible under the medical treatment exception to the bar on hearsay, as well as whether the introduction of the SANE's testimony violates the defendant's Sixth Amendment right to confrontation. (35)

    1. The Medical Treatment Hearsay Exception

      Forensic nursing attempts to prioritize specialized medical care over the collection of evidence. (36) Yet, their dual medical-legal role exposes patient statements made to forensic nurses to close scrutiny under the medical treatment hearsay exception. (37) Under the Federal Rules of Evidence, "[a] statement that: (A) is made for--and is reasonably pertinent to--medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause" is not excluded by the rules against hearsay, regardless of the declarant's availability at trial. (38) Most states also exempt statements made for the purpose of receiving medical treatment from the traditional ban on hearsay. (39)

      The medical treatment exemption has its roots in common law, where it evolved from the "spontaneous declarations" exception to the ban on hearsay. (40) Spontaneous expressions of pain and suffering, regardless of to whom they were made, were considered inherently reliable evidence as to the true character of the suffering. (41) As physicians' involvement as interveners increased, the justification for admitting the statement of pain and suffering shifted from the spontaneity of the statements to the practical concerns of the declarant. (42) Today, the medical treatment exception is justified by the inherent credibility of information given when it forms the basis of a health-dependent medical diagnosis: a patient has a strong disincentive against making false statements when receiving medical treatment, given that the patient's health may be at stake. (43) This justification generally results in a two-part analysis by courts "as to the admissibility of statements made for medical diagnosis or treatment: (1) whether the declarant's motive in speaking was consistent with receiving medical care; and (2) whether it was reasonable for the physician to rely on the statements in diagnosis or treatment."...

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