childabuselaw

Statement to Doctor Not Testimonial, Court Holds

A 2 1/2-year-old boy's statement to a physician was not testimonial and so could be admitted at trial, the Washington Court of Appeals has ruled. The case is State of Washington v. Fisher, 108 P.3d 1262 (2005).

The court compared the case with similar ones in Nebraska, Minnesota, Maryland, and California. All have applied the U.S. Supreme Court's decision in Crawford v. Washington to children's statements to persons working with them.

In the Crawford case last year, the Supreme Court held that the federal constitution's Confrontation Clause permits the prosecution to use a "testimonial" out-of-court statement in a criminal trial only if the declarant testifies at the trial or if the defendant had an adequate prior opportunity to cross-examine the declarant. The Supreme Court did not define "testimonial" statements. It did, though, give examples, and the lower courts have turned to them to decide whether particular statements were "testimonial."

In the Fisher case, the boy was hospitalized with head injuries. The defendant told the emergency room physician that the boy had fallen down stairs. The child told the ER physician the same.

The next day, a family practice physician visited the child in his hospital room and asked him what had happened. The boy pointed to his forehead and said, "Stacey hit me right here."

According to the family practice physician, the boy's injuries had seemed consistent with falling down stairs. (A child abuse medical expert, though, testified to the contrary at trial.)

The court quoted some of the Crawford case's descriptions of testimonial statements:

"ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;" ... "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;" ... statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

These phrases showed, the court said, that the boy's statement here was not testimonial:

[The family practice physician] was not a government employee, and Fisher was not then under suspicion. And the doctor testified that she questioned [the boy] as part of her efforts to provide him with proper treatment. ... [T]here was no indication of a purpose to prepare testimony for trial and no government involvement. Nor was the statement given under circumstances in which its use in a prosecution was reasonably foreseeable by an objective observer.

These facts distinguished the case, the court said, from Maryland and California cases in which children's statements were held testimonial.