Federal Evidence Review

Fifth Circuit addresses an open issue concerning admission of medical statements under the Confrontation Clause; circuit also notes that “there is no constitutional right to confront the victim of a crime” where the government elects not to call the victim at trial, in United States v. Santos, 589 F.3d 759 (5th Cir. Dec. 2, 2009) (No. 08-31225)

The parameters of “testimonial” statements continue to be an issue in the courts since the landmark 2004 ruling of the Supreme Court in Crawford. Under Crawford, “testimonial” statements of an unavailable witness are inadmissible under the Confrontation Clause unless “the defendant has had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). In its decision, the Court explicitly left “for another day any effort to spell out a comprehensive definition of testimonial” even recognizing that the Court’s “refusal to articulate a comprehensive definition in this case will cause interim uncertainty.” Crawford, 541 U.S. at 68 & n.10. The Fifth Circuit recently confronted an open issue involving testimonial statements: “whether out-of-court statements made during medical treatment are testimonial.” Santos, 589 F.3d at 762.

In the case, defendant Santos was a cell-mate with inmate Cazeau. The defendant stabbed and assaulted Cazeau in a prison cell with the help of another prisoner. Officers later discovered a shank in a trash can. A nurse provided medical treatment to Cazeau who described his pain. The defendant was charged with committing assault resulting in serious bodily injury. At trial, the government did not call the victim to testify. The nurse testified that the victim reported he was “cut up and stabbed” and about his pain:

“[Nurse] Dallas asked [victim] Cazeau to describe his pain on a scale of one to ten, and Cazeau responded ‘nine.’ Dallas recorded Cazeau’s answer on a standardized medical assessment form and then called for pain medication. Dallas administered the pain medication and again asked about Cazeau’s level of pain, to which Cazeau responded ‘four.’ Dallas also reported that Cazeau was agitated and that his clothes were ‘saturated’ with blood.”

Santos, 589 F.3d at 761. The defendant’s objections about the level of pain and that the victim was “cut up and stabbed” were overruled on Confrontation Clause and hearsay grounds. The jury convicted the defendant. The court sentenced him to 115 months’ imprisonment. On appeal, he challenged the admission of the victim’s statements through the nurse as violating the Confrontation Clause and inadmissible hearsay.

The Fifth Circuit affirmed the admission of the statements. There was no violation of the Confrontation Clause since the out-of-court statement was not “testimonial.” The circuit applied the definition of a testimonial statement as one “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Santos, 589 F.3d at 762 (quoting Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2532 (2009) (quoting Crawford, 541 U.S. at 52)).

On the issue of “whether out-of-court statements made during medical treatment are testimonial,” the circuit was guided by two recent Supreme Court decision. The first case involved dicta from the Court’s most recent Confrontation Clause decision in Melendez-Diaz v. Massachusetts, noting that “medical reports created for treatment purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2533 n.2.

The second case concerned Davis v. Washington, which involved an emergency 911 telephone call. The Court concluded that statements to a 911 operator to “enable police assistance to meet an ongoing emergency” were not testimonial. Davis v. Washington, 547 U.S. 813, 828 (2006). The fact that the nurse was employed by the government was “not determinative.” As the circuit explained:

“As in Davis, [victim] Cazeau made his statements during an ongoing emergency, for the purpose of seeking a resolution to that emergency. See Davis, 547 U.S. at 828 (finding statements made to 911 operator non-testimonial). We do not doubt that some statements made to a prison nurse would be testimonial due to the nurse’s dual role in providing treatment and gathering information regarding the incident, but we believe that district courts are equipped to distinguish the point after which ‘statements in response to questions become testimonial.’ Id. Cazeau made the statement that his pain was a nine out of ten for medical treatment to “meet an ongoing emergency.” See id. Dallas was not interrogating Cazeau to gather evidence for trial or prison disciplinary proceedings. Dallas asked Cazeau the question to determine whether he needed pain medication. This interpretation is bolstered by the fact that Dallas, after administering the medication, again asked Cazeau about his level of pain. Even if Cazeau lied about his level of pain to receive medication, this does not render his statements testimonial. Any witness would have concluded that Cazeau was in pain and wanted pain medication, but would not have anticipated that Cazeau’s statements regarding his level of pain would be used against Appellant at a later trial. We therefore hold that statements made for the purposes of obtaining medical treatment during an ongoing emergency are not testimonial under Crawford.”

Santos, 589 F.3d at 763. The circuit also rejected the defendant’s claim that his confrontation rights were violated by the government’s failure to call the victim at trial. The circuit noted that “there is no constitutional right to confront the victim of a crime.” Santos, 589 F.3d at 763 n.2.

On the hearsay challenge, the Fifth Circuit had no problem concluding that the statements were admissible under FRE 803(4) as a statement “made for purposes of medical diagnosis or treatment”. The circuit rejected the defense contention that the victim’s statements were “inadmissible hearsay because they are testimonial and were not necessary for the purpose of medical diagnosis or treatment.” The rule “does not require that each statement be ‘necessary’ for medical treatment; it requires that statements be reasonably pertinent to diagnosis or treatment’,” which was met in the case. Santos, 589 F.3d at 763. Also, in admitting the statements under FRE 803(4), there was no requirement or concern that the statement be “testimonial.”

The Santos decision provides an interesting application of recent Supreme Court cases to an open issue. For a case from the Eighth Circuit concluding medical treatment statements were not testimonial under the Confrontation Clause, see United States v. Peneaux, 432 F.3d 882, 893-94 (8th Cir. 2005) (three-year old sexual abuse victim’s statements to physician as to acts and identity of her abuser were admitted as reasonably pertinent to medical diagnosis or treatment because the statements were necessary to identify and treat victim’s emotional and psychological problems and prevent recurrence of the abuse; statements of minor victims to doctor and foster parent were not “testimonial” under Crawford; the statements to the physician were made for treatment and not for a law enforcement purpose; the foster parent was not an agent of the state).