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Implications of recent court cases.  

 

Implications of Recent Court Cases

General Testimonial Guidelines According to Evidentiary Rules

  1. Generally a SANE is permitted to make statements regarding pain, symptoms, medical history or general nature of the cause thereof that are involved in the medical diagnosis or treatment of the victim.
  2. Generally a SANE is permitted to make statements regarding any report, data, record, or memo regarding conditions, diagnoses, and events if they were kept in the course of a regularly conducted business activity. As long as the material was produced and kept as a regular practice of that business as shown by their testimony or as long as some other qualified witness can make such an acknowledgement.

Admissibility of Expert Testimony

If proposed expert testimony is determined to be relevant and meet the requirements of F.R.E. 402 or the applicable state rules of evidence, the testimony still must be subjected to further scrutiny under a state’s interpretations of novel scientific evidence. States generally use one of two standards to determine the admissibility of this type of evidence: Frye v. United States and Daubert v. Merrell Dow.

Frye v. United Sates, 293 F. 1013 (App. D.C. 1923)

The defendant Frye was convicted of murder. He appealed his conviction on the ground that his expert witness was not allowed to testify regarding the results of a deception test he had taken. The test was a systolic blood pressure test (a lie detector test). Before the trial began Frye had taken the lie detector test and during the trial his attorneys wanted to call the scientist who administered the test to testify to about the results of the test. The court upheld Frye’s conviction because the test had not gained significant standing in the scientific community and was not readily recognized or endorsed by a majority of scientists.

The test to see whether an expert can testify in this case is the general acceptance test. It is a two prong test. The first prong is identifying which field the underlying principle falls within (i.e. anatomy, physiology, physic, etc.). Once the field has been identified the second prong requires that you determine whether the principle has been generally accepted within that field. In this case the systolic blood pressure test was fairly new and had not been readily accepted by scientists in the psychological and physiological fields, therefore the scientist was not able to testify about the results of the tests. It is not enough for one or even several qualified individuals to testify that a particular technique is valid, the technique must be “generally accepted” by the relevant scientific community.

In Frye the court did not give a definition or explanation of the phrase “general acceptance.” Several cases following Frye have attempted to clarify what “general acceptance” is. In Zeiger general acceptance is defined as “widespread; prevalent; extensive though not universal. Lykes conceded that a degree of scientific divergence is inevitable but doesn’t specify how much divulgence is allowed before the technique becomes inadmissible. In other cases that have followed Frye general acceptance equates to being published in scientific journal or somewhere where the scientific community will be able to review the materials.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

Several parents of children born with severe birth defects brought a claim against a pharmaceutical company which manufactured a drug the mothers had taken while pregnant. The parents alleged the drug was the cause of their children’s birth defects. The pharmaceutical company filed for summary judgment stating that there was no scientific evidence supporting the parent’s claim. The company offered the documentation from an epidemiologist saying that the drug had not been shown to cause birth defects. The parents offered testimony from eight experts saying that the drug did cause birth defects. The district court granted the motion for summary judgment and concluded that the parents’ testimonial evidence was inadmissible because it was not generally accepted by the scientific community (Frye General Acceptance Test), the test and data that the experts used had not been published or presented for peer review. The parents appealed the district court’s ruling. The appeals court affirmed the ruling citing Frye. The Supreme Court granted certiorari.

The Supreme Court disagreed with the lower courts. In their analysis they discredited the general acceptance test stating that there was nothing in the Federal Rules of Evidence that requires that “acceptance” be a prerequisite to admissibility. The court goes on to say that a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to 'opinion' testimony," and that the general acceptance test should not be used in federal courts. Instead of using the general acceptance test the court gives wide discretion to the judge in determining whether expert testimony should be admitted. The court then addressed the four criteria that should be used to help the judge determine whether the expert testimony is admissible (1) the judge should consider whether the scientific methods discussed in the testimony are centered around a testable hypothesis; (2) the rate of error associated with the method; (3) whether the method has been reviewed by peers; (4) and whether the method is generally accepted by the scientific community. These are factors that should be taken into consideration, however all factors do not have to present in order for evidence to be admissible.

Admissibility of Out-of-Court Statements

The admissibility of out-of-court, testimonial statements are governed by Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 126 S. Ct 2266 (2006) and Giles v. California, 128 S. Ct. 2678 (2008). The admissibility of nontestimonial, out-of-court statements are governed by the rules of evidence.

Crawford v. Washington, 123 S.Ct 1354, 541 U.S. 36 (2004)

Michael Crawford was tried for the assault and attempted murder of a man who attempted to rape his wife. At trial the state wanted to play a tape of the defendant’s wife’s interview with the police. The defendant invoked the marital privilege which prevented his wife from testifying without his permission. The defendant argued that allowing the tape would violate his 6th amendment right. The tape was admitted because the defendant’s wife was determined to be unavailable and the statement was deemed trustworthy, under the test set forth in Ohio v. Roberts.[1] The Washington Court of Appeals reversed, stating the tape was not trustworthy based on a nine factor test. The Washington Supreme Court reinstated the conviction stating that Crawford’s wife’s statement was trustworthy. The Supreme Court granted certiorari to determine whether the admission of the Crawford’s wife’s taped interview violated his 6th amendment right (the confrontation clause).

In his decision, Justice Scalia references the history of the 6th amendment confrontation clause. He relies on well known English cases to support the fact that the 6th amendment applies to out-of-court statements as well as statements made in court, as long as the out-of-court statement is testimonial in nature. The Court held, therefore, in order for a testimonial statement to be admissible it must: (1) be made by a witness that is unavailable, and (2) there must have been an opportunity for cross examination. The Court stated that testimonial statements are solemn declarations or affirmations made for the purpose of establishing or proving some fact. The Court does not, however, define the term “testimonial,” stating: “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”[2] The Court found that the petitioner’s 6th amendment rights had been violated; they reversed the lower courts decision and remanded the case for further consideration.

Davis v. Washington, 126 S. Ct 2266 (2006)

The victim called 9-1-1 to report that Davis was abusing her. Later Davis was arrested and charged with felony violation of a domestic no-contact order. The victim did not show up to testify at the Davis’ trial. The prosecutor introduced the 9-1-1 tapes over defense objection. Davis was convicted. Davis appealed, the Washington Court of Appeals affirmed and the Supreme Court of Washington affirmed also.

This case was decided with Hammon v. Indiana. In Hammon, police responded to a report of a domestic dispute and when they arrived on the scene they questioned the victim. She admitted to being abused by her husband. She completed and signed a battery affidavit at the police’s direction. Hammon was charged with battery and violating probation. The victim did not appear for trial. At trial, the police officer who questioned the victim testified about Amy’s statement. The statements were admitted, over defense objections, as excited utterances. Hammon was convicted. The Indiana Court of Appeals affirmed. The Indiana Supreme court also affirmed.

The Supreme Court granted certiorari on both cases. The Court affirmed the judgment of the Supreme Court of Washington and reversed the judgment of the Indiana Supreme Court. The Court held: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

Giles v. California, 128 S. Ct. 2678 (2008)

The defendant, Dwayne Giles, was tried in state court in California for the murder of his ex-girlfriend, Brenda Avie. Giles claimed he had killed Avie in self-defense. He claimed that Avie had threatened him and run at him. He claimed, therefore, that he killed her to defend himself. In support of his claim, Giles also stated that Avie had a history of violent behavior and had threatened him in the past.

One witness stated that she had heard multiple gunshots. She stated that Giles held a shotgun and stood eleven feet from an unresponsive Avie. Avie did not have a weapon.

The trial court admitted evidence of previous statements to police officers detailing prior assaults in which Avie stated that Giles had threatened to kill her. The court admitted the statements under California Evidence Code Section 1370, which permits the admission of hearsay describing the infliction or threat of physical injury when the declarant is unavailable and the statements are trustworthy.[3] Giles appealed his conviction. During the pendency of his appeal, the Supreme Court decided Crawford v. Washington. The appeal c concluded that Giles had forfeited his right to confront the victim’s testimony by making it impossible for her to testify against him through the very act he was on trial for, killing Avie. The jury found Giles guilty of premeditated first-degree murder.

Giles appealed his conviction to the California Court of Appeals on the grounds that the admission of Avie’s statements prior to the assault had violated his rights under the Confrontation Clause. The California Court of Appeals concluded that Giles had forfeited his right to confront Avie because he had committed the murder for which he was on trial, and because his intentional criminal act made Avie unavailable to testify. The California Supreme Court affirmed on the same ground.   Giles appealed this decision to the Supreme Court, which held that forfeiture by wrongdoing is established when the prosecution establishes that the defendant wrongfully caused the declarant’s absence and that the defendant did so with the intention of preventing the declarant’s testimony or cooperation. Significantly, the Court also noted that acts of domestic violence are often intended to dissuade a victim from resorting to outside help. It further held that a defendant’s prior abuse or threatened abuse, intended to prevent a victim from seeking outside help would be highly relevant to determining the intention of a defendant’s subsequent act causing the declarant’s absence.

Velazquez v. Commonwealth of Virginia, 557 S.E. 2d 213 (Va. 2002)

The defendant was indicted for raping a 15 year old girl. The girl was taken to a local hospital where she was examined by a Sexual Assault Nurse Examiner (SANE). The defendant argued there was insufficient evidence to show he had raped the victim but the court found the evidence provided was satisfactory. At trial the state called the nurse examiner to testify as an expert in the diagnosis of sexual assault. The defendant objected to the nurse being qualified as an expert witness stating that only doctors and scientists were qualified to give expert testimony. The court overruled the objection stating that the nurse had sufficient training and experience to testify. During the trial the nurse testified that (1) the physical findings were inconsistent with consensual intercourse and (2) that the injuries the teenager had were consistent with non-consensual intercourse. Based on this testimony and other evidence Velaquez was found guilty of rape. He appealed. The Virgina Court of Appeals affirmed the trial courts judgment.

The Supreme Court of Virginia affirmed in, reversed in part, and remanded the case back to the trial court. The Supreme Court affirmed the trial courts decision to allow the nurse to testify as an expert witness. The court reversed the trial courts decision to allow the nurse’s opinion as to whether the girl was raped to be admitted. The court found that the nurse’s testimony improperly invaded the duty of the jury since the nurse was commenting on an ultimate issue of fact (whether the girl was raped). It is the jury’s job to consider and answer this question and it does not require special knowledge or experience so expert testimony is not needed. Since the nurse, in her second statement ruled out any other cause of the injuries by stating they were consistent with non-consensual intercourse (rape), her testimony invaded the duty of the jury.

Mohajer v. Commonwealth of Virginia, 579 S.E. 2d 359 (Va. Ct. App. 2003)

The victim was assaulted by the defendant while receiving a professional massage. The defendant appealed his convictions of forcible sodomy and animate object penetration. The defendant argued the trial court erred in allowing the Sexual Assault Nurse Examiner (SANE) to state an expert opinion regarding the cause of the victim’s injuries and by finding the evidence sufficient to support his convictions. The appellate court disagreed and stated the nurse did not have to be licensed to practice medicine to express an expert opinion on the cause of injuries in an alleged sexual assault victim. The court further stated the nurse only offered her expert opinion as to the victim's injuries in terms of whether or not the injuries were consistent or inconsistent with consensual sexual intercourse.



[1] Ohio v. Roberts, 448 U.S. 56 (1980)
[2] Crawford v. Washington, 124 S.Ct. 1354, 74 (2004).
[3] Cal. Evid. Code Ann. §1370.
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