EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, July 11, 2011

Just The Facts, Ma'am: Court Of Special Appeals Of Maryland Finds Confrontation Clause Covers Objective Facts

The Confrontation Clause states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

But does the Confrontation Clause cover only analytical and conclusory statements, or does it also cover "routine and descriptive and objectively ascertained and reliable facts?" According to a Maryland trial court, it only covers the former. According to the Court of Special Appeals of Maryland in its recent opinion in Green v. State, 2011 WL 2578562 (Md.App. 2011), it also covers the latter.

In Green

Anthony Green was...charged with attempted murder and various other offenses including first and second-degree assault, second and third-degree sexual offenses, reckless endangerment, use of a handgun in commission of a crime of violence, third-degree burglary, trespass, possession of a controlled dangerous substance, and sodomy. At the conclusion of Green's jury trial, the State nolle prossed the charge of possession of a controlled dangerous substance and the court granted a motion for judgment of acquittal as to the charge of sodomy, third-degree burglary, trespass, and one count of second-degree assault. The jury found Green guilty of third-degree sexual offense, fourth-degree sexual offense, second degree assault and reckless endangerment.

After he was convicted, Green appealed, claiming, inter alia

that his right to confront witnesses against him...was violated when the trial judge allowed the State to introduce into evidence a redacted copy of a report that was prepared by a nurse employed by the Sexual Assault Center at Prince George's Hospital, even though the preparer of the report was not available to be cross-examined.

After the victim was allegedly sexually assaulted by Green, she was taken to  the Sexual Assault Center at Prince George's Hospital, where a sexual assault forensic examiner (SAFE) nurse examined her and prepared a record concerning the victim's visit. At trial, the nurse did not testify, and the trial judge did not allow the nurse's entire record to be admitted, but he did allow the prosecution to admit a redacted version of the record which included a 

diagram of a woman's body showing where on [the alleged victim's] body abrasions, scratches and a "puncture" were observed. The redacted record also included the page from [the alleged victim's] chart dealing with the nurse's physical examination, which included the nurse's observation that her examination of the victim's anus showed a non-bleeding "tear" at "6 o'clock and 4 o'clock" of "the anal folds."

According to the trial court, this procedure was proper because the admitted record

contained "routine and descriptive and objectively ascertained and reliable facts" and deleted statements that were "analytical" or that contained "conclusion."

The Court of Special Appeals of Maryland, however, found that this procedure violated the Confrontation Clause. According to the court,

What a witness says in any out-of-court statement, can be testimonial even if the statement concerns a "fact." For instance in Crawford, supra, the issue was whether Sylvia Crawford's out-of-court statement to a police officer (that she didn't see a knife or other weapon in the victim's hand) was testimonial....Whether she saw a knife or not was obviously a "fact." Nevertheless, the court held that the statement was "testimonial."...Likewise, what two of the victims said in Snowden (that a person they knew as Uncle Mike touched them in their vaginal area) was held to be testimonial even though what the declarants said was unquestionably a "fact."...Recently in Bullcoming v. New Mexico,... the Court said:

[M]ost witnesses, after all, testify to their observations of factual conditions or events, e.g., "the light was green," "the hour was noon." Such witnesses may record, on the spot, what they observed. Suppose a police report recorded an objective fact—Bullcoming's counsel posited the address above the front door of a house or the read-out of a radar gun. Could an officer other than the one who saw the number on the house or gun present the information in court—so long as that officer was equipped to testify about any technology the observing officer deployed and the police department's standard operating procedures? As our precedent makes plain the answer is emphatically "No."



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