CAAF decided United States v. Squire, No. 13-0061/AR, 72 M.J. 285 (CAAFlog case page) (link to slip op.), on June 13, 2013, finding that the statements the 8 year old child sexual assault victim made to medical providers were not testimonial and the Appellant was not deprived of his Sixth Amendment right to confront his accuser when the military judge admitted the statements as having been made for purposes of medical diagnosis or treatment. CAAF affirms the Army CCA and the findings and sentence.
Judge Erdmann writes for a unanimous court.
The Appellant was convicted contrary to his pleas, by a general court-martial composed of members, of engaging in a sexual act with a child who had not attained the age of twelve years, in violation of Article 120 (2006). He was sentenced to confinement for 20 years and reduction to E-1.
The conviction was based on an alleged encounter between the Appellant and his fiance’s 8 year old daughter. After coming home early, the girl’s mother encountered the girl leaving the master bedroom wearing only a long t-shirt (and not the underwear and pants she had been wearing). The Appellant was in the master bed, also without pants. The mother questioned the girl, and the girl said that the Appellant had touched her vagina. Medical treatment was sought, and two doctors conducted separate examinations of the girl. During those examinations the girl made additional statements, including saying that the Appellant “put his wee wee inside me and it hurt.” DNA analysis of swabs taken from the girl’s genitals and underwear further implicated the Appellant in the assault. Neither side called the child to testify at trial, but the Government successfully moved to introduce her statements to the doctors under the exception to the general rule against hearsay for statements made for the purposes of medical diagnosis or treatment.
CAAF granted review to determine:
Whether Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL’s statement to a physician.
Judge Erdmann begins his analysis by explaining that whether a statement is testimonial depends on a contextual analysis, and cannot be determined through a formulaic approach:
While “our goal is an objective look at the totality of the circumstances surrounding the statement,” [United States v. Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007)], we have developed a set of factors to assist us in determining whether a given statement is testimonial. Those factors 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. Id.; [United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007)].
Slip op. at 8. The opinion is primarily focused on the statements made to the second doctor, who was the on-call physician at the local “Child Protection Center and the Sex Abuse Treatment Center,” as the nature of these statements is the closer question.
Finding that the statements were not testimonial, Judge Erdmann focuses on the three factors discussed above. First, he sees no significant involvement of law enforcement, as the only law enforcement connection to the statements in this case is the doctor’s status as a state-law mandatory reporter who must document and report possible sexual abuse of children. The court “do[es] not believe that this general requirement . . . is alone sufficient to establish that [the doctor] was acting in a law enforcement capacity.” Slip op. at 10. A footnote explains that this is not a per se rule, but that “to prevail in such cases there must be a showing of something more than the fact that the doctor is an expert in the field with a statutory obligation to report suspected child abuse.” Slip op. at 10 N.7.
Next, while Judge Erdmann does not find that the statements were “a routine, objective cataloging of unambiguous factual matters,” he instead looks at the “general nature of the statement at issue.” Slip op. at 10-11. He concludes that the doctor did not lead or prompt the child, but rather “he asked her what had happened and she responded with a factual response of the incident.” Slip op. at 12.
Finally, Judge Erdmann considers the primary purpose of the statements, noting that “when a medical provider provides treatment to the victim of a criminal offense, statements solicited by the medical provider may be primarily for medical treatment purposes, or, at the other end of the spectrum, they may be primarily for law enforcement purposes.” Slip op. at 13. He considers the circumstances surrounding the statements to conclude that they are at the medical treatment end of the spectrum. In making this conclusion, Judge Erdmann rejects the mere fact that the doctor “was aware that the results of his examination were likely to be used in a subsequent criminal prosecution,” finding that this “knowledge alone does not transform what would otherwise be a statement for the purpose of medical treatment into a testimonial statement.” Slip op. at 15.
Accordingly, the statements were not testimonial, and their admission did not violate the Appellant’s Sixth Amendment right to confrontation. A final footnote emphasizes the factual nature of this inquiry and provides some clues for trial-stage litigation of this question:
We do not hold today that any statement made to a doctor or medical professional in the context of a medical examination is per se for the primary purpose of medical treatment, or that all such statements are inherently nontestimonial. That holding would conflict with both our analysis and result in Gardinier. As we have already emphasized, the analysis of statements in Confrontation Clause cases is inherently fact specific and every case must be decided, in context, on its own facts.
Slip op. at 16 N.13. The ACCA’s decision spent many pages on the factual inquiry into the non-testimonial nature of the statements. Moreover, the ACCA also found that even if the admission of the statements was error, it was harmless beyond a reasonable doubt based on the other evidence in the Government’s case. Notably, that evidence didn’t just include a DNA match to the Appellant for semen found on vaginal and dried secretion swabs taken from the child, but also “after waiving his rights, [the A]ppellant told the CID agent who interviewed him that ‘if his DNA was found on or in the victim, then his penis did penetrate her, but it was accidental not deliberate.'” Squire, No. 20091106, slip op. at 8 (A.Ct.Crim.App. Aug 17, 2012) (unpublished).
So, reading this unanimous opinion, it’s hard not to wonder why CAAF granted review of this case.