Does the Nature of a Testimony Determine Whether It Violates An Accused's Right to Confrontation ?
The In re T.T. court specifically addressed the issue of whether testimonial evidence presented to a nongovernmental official can still violate the confrontation clause
In In re T.T., 351 Ill. App. 3d 976, 815 N.E.2d 789, 287 Ill. Dec. 145 (2004) the court allowed some "nontestimonial" statements made to the examining physician by the victim, but disallowed other "testimonial statements" as violative of the confrontation clause.
The court reasoned that the victim's statements regarding the nature of the alleged attack, the physical exam, and complaints of pain or injury "were not accusatory against respondent at the time made and, thus, do not trigger enhanced protection under the confrontation clause." In re T.T., 351 Ill. App. 3d at 993.
However, the In re T.T. court did not allow the victim's "accusatory statements to the examining physician identifying respondent as the perpetrator because those statements implicated the core concerns protected by the confrontation clause." In re T.T., 351 Ill. App. 3d at 993.
When the content of the victim's statement concerned fault or identity, then such testimonial statements were only admissible if the declarant testified at trial and was subject to cross-examination. In re T.T., 351 Ill. App. 3d at 993.
The court made the distinction between the physician, who was referred to the victim by DCFS (a governmental agency), and governmental officers such as the police or DCFS investigators. In re T.T., 351 Ill. App. 3d at 993-94.
"In contrast to government officers like the police or DCFS investigators, medical personnel who treat and diagnose sexual assault victims do not take on a similar investigatory or prosecutorial function." In re T.T., 351 Ill. App. 3d at 993.
The In re T.T. court focused on the nature of the testimony in determining whether it is violative of an accused's right to confrontation, as opposed to the official or unofficial nature of the person whom the State wants to testify to the declarant's out-of-court statement.