Appendix 5. Impact of Crawford v. Washington and The Confrontation Clause
AEquitas: The Prosecutors’ Resource on Violence Against Women contributed this Appendix. Also see Aequitas (2012).
The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to confront the witnesses against him. This right is always satisfied when a victim testifies at trial and is available for cross-examination.  However, when the victim is unable to testify at trial (because, for example, she/he is too young or would be too traumatized by testifying), the question arises whether the young victim’s statements to a pediatric sexual abuse medical forensic examiner can be admitted at trial.
Whether such statements will be admissible is determined by a line of cases arising in the wake of Crawford v. Washington, a landmark decision by the United States Supreme Court that determined when an out-of-court statement made by a non-testifying witness can be admitted at trial without violating the Confrontation Clause. In Crawford, the Court held that whether prior statements of a non-testifying witness will be admissible depends upon whether that prior statement is “testimonial” or “nontestimonial.” Only nontestimonial statements can be admitted at trial without offending the Confrontation Clause.  Crawford, and subsequent cases, including Davis v. Washington and Michigan v. Bryant, provide limited guidance as to when statements will be considered testimonial or nontestimonial. (Note, however, that this case law is not necessarily applicable in tribal courts, as tribes are sovereigns and can look to their own codes and laws for guidance in their court rulings)
Certain categories of statements are typically considered testimonial (and, thus, inadmissible unless the witness testifies), including affidavits, formal or structured statements to law enforcement, and testimony in court or at a deposition. These statements are considered testimonial because their purpose is to provide information that might be relevant to future prosecution.
Nontestimonial statements—those that can be admitted at trial, even if the witness is unavailable, without offending the Confrontation Clause—are generally less formal, not given under oath, are usually made to someone other than a law enforcement authority, and are not given for purposes of providing information relevant to future prosecution. Examples include statements to family members and friends and statements to medical professionals for purposes of diagnosis or treatment.
One exception to the general rule that statements to law enforcement will be considered testimonial are statements made to law enforcement for the purpose of responding to an ongoing emergency. To the extent that a victim or witness communicates with law enforcement for purposes of requesting help, or so the law enforcement can respond to an emergency, the statement will be considered nontestimonial (and, thus, admissible under Crawford).
The difficulty that arises with respect to a child victim’s statements to a pediatric examiner arises from the dual purpose that such professionals serve in the context of examining and treating the victim. In addition to conducting a thorough examination for purposes of identifying and treating any injury the victim may have suffered, pediatric examiners are trained to preserve forensic evidence for possible future prosecution. The victim may be brought in for examination accompanied by law enforcement and law enforcement may have specific questions they hope to have answered. While it is not recommended, it is also possible that law enforcement in some instances may even be present for or observe examinations.
Because the U.S. Supreme Court has not specifically ruled on Crawford’s applicability in the context of such medical forensic examinations, the admissibility of a victim’s statements to a pediatric examiner will be controlled by the case law of the jurisdiction where the prosecution is being conducted. The results of these cases have been mixed, and not all jurisdictions have considered the specific question, so the law may not be clear in every jurisdiction. There are a few jurisdictions that have taken the position that any statements made to a sexual assault nurse examiner (SANE) or sexual assault forensic examiner (SAFE) will be considered testimonial under virtually all circumstances, simply because one of the roles of a SANE or SAFE is to document and collect forensic evidence.  Far more common, however, is a nuanced, fact-sensitive analysis that will result in some statements being considered testimonial and others considered nontestimonial. Sometimes a court will rule that statements made during one portion of the examination are testimonial while statements made during a different portion are nontestimonial. Some courts also focus more on the victim’s purpose in making the statement than on the examiner’s purpose in asking the question that elicited it. Thus, a statement by a very young victim who does not appreciate the fact that statements might be used for prosecution purposes is more likely—at least in some courts—to be held nontestimonial than a similar statement by an older victim who might understand that the statement could be important at trial.
Generally speaking, the more that questioning in a medical history as part of medical forensic care is directed toward medical treatment, rather than law enforcement or evidentiary purposes, the more likely a victim’s statements will be held to be nontestimonial (and thus admissible). Pediatric examiners who perceive their primary role as one of assisting law enforcement, and who focus their practice accordingly, risk having their patients’ statements excluded as testimonial under Crawford and the Confrontation Clause. Conversely, examiners who perceive their primary role as one of providing appropriate medical care and treatment are more likely to elicit statements that will be admissible as nontestimonial statements made for purposes of medical diagnosis and treatment. Pediatric examiners should be able to articulate a practice philosophy that is patient-centered and medically focused when being questioned as a witness at trial. For health care providers, Crawford and its progeny do not change the priorities of the medical forensic examination, which should continue to hold the health and wellbeing of patients of primary importance.
It is also important to note that even when statements to pediatric examiners are considered to be testimonial, and thus normally inadmissible, those statements might nevertheless be admissible if the defendant is found to have engaged in wrongdoing that caused, and was intended to cause, the victim to be unavailable for trial. The doctrine of “forfeiture by wrongdoing”  will allow any hearsay statements of a victim (including any testimonial statements to a pediatric examiner) to be admitted at trial if the defendant has intentionally caused the victim to be unavailable by, for example, intimidating or manipulating the victim or the victim’s caregivers. 
For health care providers, the Confrontation Clause, as interpreted in Crawford and its progeny, should not alter the relative importance of the dual purposes served by the medical forensic examination, which should continue to prioritize the health and wellbeing of patients over concerns about documentation or forensic evidence-gathering for purposes of prosecution. Still, it is helpful for practitioners to be aware of the factors that might affect the admissibility of statements made in the course of their examination.
 It is important to note that even when victims do testify at trial, statements to a pediatric professional still must satisfy a state’s hearsay exception. Where the statement is made for purposes of medical diagnosis or treatment, such statements will most often be admissible; however, the “forensic” aspects of the examination may still preclude admission of statements found to be insufficiently related to the medical purpose of the examination. See, e.g., State v. Mendez, 242 P.3d 328, 339-343 (N.M. 2010) (requiring courts to carefully scrutinize statements to SANE for trustworthiness in light of the purposes of the hearsay exception for statements made for purposes of medical diagnosis and treatment).
 541 U.S. 36 (2004).
 541 U.S. 36 (2004).
 547 U.S. 813 (2006).
 562 U.S. 344 (2011).
 See, e.g., Hartsfield v. Com., 277 S.W.3d 239 (Ky. 2009) (adult victim); Medina v. State, 143 P.3d 471 (Nev. 2006) (adult victim); State v. Ortega, 175 P.3d 929 (N.M. Ct. App. 2007) (overruled in part on other grounds, State v. Mendez, 242 P.3d 328 (N.M. 2010) (overruling Ortega’s analysis of the states’ hearsay exception but leaving undisturbed the Court of Appeals’ confrontation analysis)). The Ortega court characterized a SANE exam as “a forensic exam with medical features.” 175 P.3d at 934. The court’s analysis would appear to preclude, under the confrontation clause, virtually all statements made to a SANE, at least in the absence of a medical emergency.
 See, e.g., Fed. R. Evid. 804(b)(6); Giles v. California, 554 U.S. 353 (2008).
 See Lyon and Dente (2012). The authors, who describe many forms of possible “wrongdoing” in the sense of manipulation and exploitation of young victims of sexual abuse, note that “defendants subvert justice not only through overt threats and violent acts, but also through exploitation and manipulation of our most vulnerable citizens. When exploitation ensures that a child victim will not testify, a finding that the defendant has forfeited his confrontation rights is a fair means to let the child be heard.” Id. at 1232.