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Univ. of South Carolina School of Law

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Friday, November 9, 2007

Defiance, Ohio?: James Stahl Rape Trial to Begin After Controversial Crawford Ruling

On Monday, the trial of James G. Stahl, who is accused of raping Ann Mazurek, is scheduled to begin in Summit County, Ohio.  Pursuant to a 4-3 decision of the Supreme Court of Ohio last year, jurors will be entitled to hear the testimony of Jennifer Markowitz, a nurse practitioner and coordinator of the Developing Options for Violent Emergencies (D.O.V.E.) unit at St. Thomas Hospital.  Markowitz will testify about what Mazurek, who has since died from a seizure, told her about the alleged rape by Stahl, her former boss.

The problem faced by the Surpeme Court of Ohio in The State of Ohio v. Stahl was that in 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant..  Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.

Because the defendant was not able to cross-examine Markowitz, the Supreme Court of Ohio had to determine whether Markowitz's statements to the nurse were "testimonial."  Here are the facts surrounding the statements:

     -Mazurek first went to Officer Amy Ellis of the Richfield Police Department and recounted the details of the alleged rape;

     -Ellis then transported Mazurek to the St. Thomas Hospital, where she signed a "DOVE Program Consent for Forensic Exam and Release of Evidence" form, which authorized the release of, inter alia, evidence and information from the nurse's examination to a law enforcement agency for use only in the investigation and prosecution of this crime;

     -Ellis then remained in the room while Mazurek gave her statements to Markowitz, although she did not participate in taking Mazurek's statements or examining her.

In finding that Mazurek's statements to Markowitz were not "testimonial," the Supreme Court of Ohio made several findings.  Some of the major ones include:

     -the finding that Mazurek's statements were not "testimoninal" because her primary purpose in making the statements was to receive proper medical treatment and not to assist in a criminal prosecution; and   

     -the finding that the consent form that Mazurek signed did not specifically indicate that her "statements" could be used in a subsequent prosecution.  Thus, according to the court, the form could only create in Mazurek a reasonable belief that any physical evidence obtained by the nurse and not any statements that she made could be used in a subsequent prosecution.

The majority noted that in Crawford the Supreme Court found that the term "testimonial" statements at a minimum includes prior testimony at trials or hearings and statements made during police interrogations, and based upon the findings above decided not to find that the term also included Mazurek's statements.

Meanwhile, the dissenting opinion found, inter alia, that

     -the consent form gave Mazurek the reasonable expectation that her statements could be used in a subsequent criminal prosecution;

     -the primary purpose of D.O.V.E. and thus Mazurek's statements to Markowitz was the collection of evidence, not medical treatment; and,

     -Markowitz was in effect an agent of the police based upon Ellis' presence while Mazurek made her statements.

The Crawford decision is so confusing and divisive that I won't even attempt to argue that the majority or the dissent in the Stahl case was correct on the Confrontation Clause issue.  What is strange to me, however, is that the Supreme Court of Ohio found that Markowitz could testify about the statements that Mazurek made to her not only about the alleged rape, but also about the identity of the rapist.

Pursuant to Federal Rule of Evidence 803(4) and state counterparts, statements made for the purposes of medical treatment or diagnosis are admissible as an exception to the rule against hearsay.  However, while statements about the general cause of an injury (such as rape, assault, etc.) are generally admissible under this exception, statements about the identity of the alleged assailant are almost never admissible. See, e.g., United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980). 

One of these exceptions that some courts apply exists in domestic abuse cases such as cases where a child is claiming sexual abuse at the hands of a parent because part of the treatment of that child would involve having them separated from the abusive parent. See, e.g., State v. Brown, 746 So.2d  643, 648 (La.App. 4 Cir. 1999)  In rape cases where this or a similar fact is not involved, however, courts generally find that the identity of the alleged rapist is inadmissible. See, e.g., State v. True, 438 A.2d 460, 466-67 (Me. 1981).  Thus, I don't see how Mazurek's statements about the identity of her alleged rapists should have been held admissible.

-CM

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