U.S. v. Squire, 72 M.J. 285

First Principles: Constitutional Matters: Confrontation

1. the Confrontation Clause bars admission of the testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination
2. a comprehensive definition of testimonial statements under the Confrontation Clause has not been articulated, but the analysis is fact specific, meaning that it is contextual, rather than subject to mathematical application of bright line thresholds; the goal is an objective look at the totality of the circumstances surrounding the statement; factors used in determining whether a given statement is testimonial include whether: (1) the statement was elicited by or made in response to law enforcement or prosecutorial inquiry, (2) the statement involved more than a routine and objective cataloging of unambiguous factual matters, and (3) the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial
3. statements made by a female eight-year-old victim after an alleged sexual assault to a physician when he took her medical history prior to performing a sexual assault examination were not testimonial for Confrontation Clause purposes where the physician was primarily acting for the purpose of providing medical treatment; his practice was always to take a medical history before performing a physical exam, and the history was ultimately medically significant to his conclusion that there had been physical penetration of the vagina; even though the physician was aware of the possible law enforcement consequences of the exam and he was a mandatory reporter of cases involving child sexual assault victims under state law and completed a state-mandated form while conducting the exam, he was not acting in a law enforcement capacity; here, the connection to law enforcement was the general requirement that the physician, as a mandatory reporter under state law, must report and document possible sexual abuse of children after conducting a forensic examination; this general requirement, which broadly covers health care professionals, employees of public and private schools, child care providers, and providers of recreational and sports activities, was not alone sufficient to establish that the physician was acting in a law enforcement capacity
4. statements made by a female eight-year-old victim after an alleged sexual assault to an emergency room physician when the physician took her medical history were not testimonial for Confrontation Clause purposes where the primary purpose of the statements was to facilitate medical treatment for a possible sexual assault; the victim’s mother brought the victim to the emergency room on her own volition, without having been advised by or even seeking to contact law enforcement personnel, the emergency room physician did not conduct a forensic examination, and in taking the patient’s history, the physician asked questions to the victim that were narrow in scope, fact oriented, and limited to addressing the victim’s emergency medical condition and its causes

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. the Confrontation Clause bars admission of the testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination
2. a comprehensive definition of testimonial statements under the Confrontation Clause has not been articulated, but the analysis is fact specific, meaning that it is contextual, rather than subject to mathematical application of bright line thresholds; the goal is an objective look at the totality of the circumstances surrounding the statement; factors used in determining whether a given statement is testimonial include whether: (1) the statement was elicited by or made in response to law enforcement or prosecutorial inquiry, (2) the statement involved more than a routine and objective cataloging of unambiguous factual matters, and (3) the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial

Core Criminal Law Subjects: Witnesses: Confrontation

1. the Confrontation Clause bars admission of the testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination
2. a comprehensive definition of testimonial statements under the Confrontation Clause has not been articulated, but the analysis is fact specific, meaning that it is contextual, rather than subject to mathematical application of bright line thresholds; the goal is an objective look at the totality of the circumstances surrounding the statement; factors used in determining whether a given statement is testimonial include whether: (1) the statement was elicited by or made in response to law enforcement or prosecutorial inquiry, (2) the statement involved more than a routine and objective cataloging of unambiguous factual matters, and (3) the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial
3. statements made by a female eight-year-old victim after an alleged sexual assault to a physician when he took her medical history prior to performing a sexual assault examination were not testimonial for Confrontation Clause purposes where the physician was primarily acting for the purpose of providing medical treatment; his practice was always to take a medical history before performing a physical exam, and the history was ultimately medically significant to his conclusion that there had been physical penetration of the vagina; even though the physician was aware of the possible law enforcement consequences of the exam and he was a mandatory reporter of cases involving child sexual assault victims under state law and completed a state-mandated form while conducting the exam, he was not acting in a law enforcement capacity; here, the connection to law enforcement was the general requirement that the physician, as a mandatory reporter under state law, must report and document possible sexual abuse of children after conducting a forensic examination; this general requirement, which broadly covers health care professionals, employees of public and private schools, child care providers, and providers of recreational and sports activities, was not alone sufficient to establish that the physician was acting in a law enforcement capacity
4. statements made by a female eight-year-old victim after an alleged sexual assault to an emergency room physician when the physician took her medical history were not testimonial for Confrontation Clause purposes where the primary purpose of the statements was to facilitate medical treatment for a possible sexual assault; the victim’s mother brought the victim to the emergency room on her own volition, without having been advised by or even seeking to contact law enforcement personnel, the emergency room physician did not conduct a forensic examination, and in taking the patient’s history, the physician asked questions to the victim that were narrow in scope, fact oriented, and limited to addressing the victim’s emergency medical condition and its causes

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a statement is inadmissible testimonial hearsay under the Confrontation Clause as interpreted in Crawford v. Washington (541 US 36 (2004)), is a question of law that an appellate court reviews de novo