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Narrowing Crawford

Two years ago, in Crawford v. Washington, the US Supreme Court laid down the rule that the Confrontation Clause barred the admission of out-of-court "testimonial" statements against the accused at trial, even if they qualified under a hearsay exception.  Since that time, the courts have wrestled with the definition of what constitutes a "testimonial" statement. 

The Crawford court declined to define what the term meant, but did give examples.  The first two, ex parte communications such as statements to the police and extrajudicial communications such as affidavits and prior testimony, are fairly clear.  It's the third one that creates a problem:  "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

The Ohio Supreme Court tackled that question last week in State v. Stahl, with unfortunate results.  Stahl was accused of raping a woman who'd come to see him about getting her boyfriend's job back.  The woman reported the incident to the police, made a detailed statement, and then was taken to the local hospital's Developing Options for Violent Emergencies (DOVE) unit, which essentially specializes in taking evidence from rape and domestic violence victims.  The woman signed a consent form stating

I voluntarily consent to this forensic examination and collection of evidence. I have received a detailed description of the steps of the process and understand that I may withdraw my consent to any or all parts of this examination at any time. I authorize the release of evidence, information (including protected health information), clothing, colposcope photos, and photography documentation of injuries to a law enforcement agency for use only in the investigation and prosecution of this crime. I understand that if release of the Sexual Assault Evidence Collection Kit is not authorized, the kit will be kept at the SANE [Sexual Assault Nurse Examiner] Unit for sixty days and then destroyed."  (My emphasis).

The woman made a detailed statement to the nurse of how the rape allegedly occurred; the police officer remained in the room during the entire time.  Five weeks later, the woman died of an unrelated illness.  The defense moved to suppress the statement given in the DOVE unit, and the trial court agreed that it was testimonial pursuant to Crawford.  The court of appeals didn't.

Neither did the Supreme Court.  The Court focused on the last example of testimonial statements -- a statement that a witness would believe would be used at trial -- and concluded that the key factor to be used in this analysis is the expectation of the declarant, not the motivation of the questioner. 

That's arguably correct, but the court's conclusion that the victim here would have expected that her statement would only be used for medical treatment and not for prosecution is another matter.  As the three dissenters point out, that's a hard sell given the express wording of the consent form and the presence of the police officer throughout the interview.  Militating further against the belief that this was all for medical treatment is the fact that no medical treatment was provided; the woman didn't even see a doctor during the process.

An appeal from Stahl is likely, and if the US Supreme Court accepts cert, I'd lay at least even money on a reversal.  One thing that Stahl does do, though, is sound the death knell for the argument that a statement by a child abuse victim to anyone other than the police -- even to a social worker investigating the abuse -- is barred by Crawford.  Stahl gives numerous examples from other jurisdictions where such statements have been allowed.  In fact, what Stahl arguably holds is that any statement other than one made to the police is going to come in as long as it meets one of the hearsay exceptions.

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