The Inadmissibility Of Sexual Assault Nurse Testimony In California Sexual

The Inadmissibility Of Sexual Assault Nurse Testimony In California Sexual Assault Cases

In 2009, the 19th of October, the Fourth Division of the Second District Court of Appeal in California published a feature in People Vs Arnulfo Vargas, stating that a declaration of a "sexual assault nurse" is "testimonial" hearsay that should not be accepted.

In Vargas the respondent was accused of multiplecounts of sexual assault with four differentseparate women. He was judgedof 15 counts and the court reversed as to one case which was based exclusively upon inadmissible testimonial evidence by a sexual assault nurse i.e., forensic nurse examiner, who performed a sexual assault examination upon one of the victims .

Considering Vargas:
"In Crawford v. Washington 541 U.S. 36, the Supreme Court of the United States declared that the inclusion of a testimonial hearsay is against the sixth amendment right to inquire and examine witnesses, except the witness is not present at trial and the defendant has had a prioropportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 59.) In subsequent decisions - Davis v. Washington (2006) 547 U.S. 813, and most recently Melendez-Diaz v. Massachusetts (2009) 557 U.S. __, 129 S.Ct 2527 (Melendez-Diaz) - the High Court has sought to clarify the concept of "testimonial" hearsay. The California Supreme Court has also analyzed that concept in two post-Davis, pre-Melendez-Diaz decisions, People v. Cage (2007) 40 Cal.4th 965 (Cage) and People v. Geier (2007) 41 Cal.4th 555 (Geier).

This concern has gained a lot of importance since it is used as a testimony of a sexual assaoult nurse to accuse a sexual assault suspect. When these purportedly "neutral" nurses testify in detail as to the circumstances of the sexual assault in question, the trier of fact is affected that he or she is a trained technical in the field and is often usingan Office of Criminal Justice Planning ("OCJP") form arranging the "official" questions that should be used, and is ready so that the information can be turned over directly to law execution.

Often defense counsel has made a general hearsay objection because the nurse's testimony is clearly an out of court statement being entered for its truth, i.e. hearsay. The tribunal usually answers that it is a "business records exception, Evidence Code Section 1280, or some other type of hearsay exception such as Evidence Code Section 1237 (a written text previously made to the trial).

In accord with the recent line of decisions starting with Crawford, supra, where the United States Supreme Court firmly reaffirmedthe right of cross-examination against one's accuser, the California Courts have now made it clear that testimony that goes to the heart of the charges against a defendant in a sexual assault case cannot be introduced in a round about way by means of hearsay declarations, even if madeby an "skilled person" and in the course of their examination. Thus, sexual assault convictions cannot depend exclusively upon hearsay .

Of course, if there is direct testimony of sexual abuse by the victim on the stand, any declaration by a sexual assault nurse may be found to be "mild" under the "harmless error doctrine", and a conviction may nonetheless be assured, which arisen with the other counts in the Vargas case. Nevertheless, defendants can rely on Vargas to defend properly in any case of sexual assault.

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