There are roughly 3,000 certified Sexual Assault Nurse Examiners (“SANEs”) in the United States. SANEs now operate in all fifty states and the District of Columbia. The past decade has seen SANEs become both ubiquitous and controversial in criminal trials throughout the country. The prosecution introduces them to jurors as medical providers trained to provide treatment and collect evidence from patients who have survived sexual abuse.
The evidentiary tension spawned by SANEs is that while they are introduced as unbiased medical professionals, many are trained and function as law enforcement investigators. A significant part of their law enforcement training is documenting evidence and testify persuasively for the prosecution.
SANE Nurse Reports, Expert Testimony and Medical Records
In short, they are trained beyond standard medical diagnosis and treatment and operate, from a medical and law enforcement perspective, to assist the prosecution in securing a criminal conviction. Prosecutors often call SANE nurses to testify as “experts” and introduce medical records documenting their forensic examination. The medical records include a statement from the child, which in other circumstances, would be excluded as hearsay.
The purpose of “expert” testimony is to assist the jury in understanding a particular part of the evidence, not to testify with a specific intent to help the prosecution secure a criminal conviction.
SANE Nurses Trained as Law Enforcement Resources
In 2012, four university healthcare professionals published a detailed “meditational analysis” about how SANEs have impacted law enforcement investigation protocols in which they concluded:
“A [sexual assault] victim’s body is a crime scene, and because of the invasive nature of sexual assault, a medical professional, rather than a crime scene technician, is needed to collect the evidence. Thus, when victims seek professional help after a sexual assault, they are most likely to be directed to the medical system, specifically, hospital emergency departments (“EDs”). There are numerous problems with an ED-based approach to post-assault health care and forensic collection. Many ED physicians are reluctant to perform the rape exam, and most lack training specifically in forensic evidence collection procedures. As a result, many rape kits collected by ED doctors are done incorrectly and/or incompletely. In addition to problems with evidence quality, many victims are re-traumatized by the ED exams, which often leave them feeling more depressed anxious, blamed, and reluctant to seek further help. These negative experiences have the unintended effect of decreasing victims’ willingness to participate in law enforcement investigations.
“To address these problems and better attend to victims’ forensic-legal issues as well as their psychological and medical needs, SANE programs were created in the 1970s by the nursing profession, in collaboration with rape crisis centers and victim advocacy organizations. They grew in rapid numbers during the 1990s and now number more than 500 programs in the United States. SANE programs are staffed by registered nurses or nurse practitioners who have completed a minimum of 40 hr classroom training and 40 to 96 hr in clinical training, which includes instruction in evidence collection techniques, use of specialized equipment (e.g., colposcope), injury detection methods (e.g., Toluidine blue dye), pregnancy and STI screening and treatment, chain-of-evidence requirements, expert testimony, and sexual assault trauma training.
“SANEs provide law enforcement personnel and prosecutors with valuable resources, including but not limited to high-quality medical forensic evidence. So it is reasonable to ask whether these interventions have a positive impact on prosecution rates. Several case studies suggest that SANE programs increase arrest and prosecution rates …”
This scholarly analysis made it clear that SANEs, who indeed have medical training in nursing, are used as “forensic technicians” for law enforcement and as a valuable testimonial “resource” for the prosecution.
In Texas, some SANE testimony can be considered “expert” testimony admissible under Article 702 of the Texas Rules of Evidence. This kind of “expert” testiony is routinely upheld by Texas courts of criminal appeals as evidenced in a 2020 decision, Murray v. State. In Murray, the court held that the SANE testimony “assisted the jury and was sufficiently connected to the facts of the case on the issue of whether the sexual contact between Murray and Tolieson was consensual.”
However, the appeals court in Salinas v. State found reversible error where the court permitted a pediatrician to testify to the diagnosis of sexual abuse based solely on the child’s statement of abuse when there is no physical evidence to support the abuse. Salinas was consistent with a 1997 decision by the Texas Court of Criminal Appeals, Schutz v. State, that an expert may not give an opinion as to the truth or falsity of other evidence. The Schutz court put it this way:
“To be admissible, expert testimony must ‘assist’ the trier of fact. Expert testimony assists the trier of fact when the jury is not qualified to ‘the best possible degree’ to determine intelligently the particular issue without the help of the testimony. But, the expert testimony must aid—not supplant—the jury’s decision. Expert testimony does not assist the jury if it constitutes ‘a direct opinion on the truthfulness’ of a child complainant’s allegations.”
Medical Records Exception to Hearsay Rule
Beyond the expert testimony issue is the fact that the U.S. Supreme Court has ruled that testimony from a sexual assault victim to a medical professional, such as a SANE, is admissible without the victim’s testimony because such SANE testimony is “nontestimonial” in that it is derived from medical diagnosis or treatment. Because they are deemed reliable, statements made to medical providers for treatment are excluded from the hearsay rule and are not protected by the Sixth Amendment’s Confrontation Clause.
That 2009 Supreme Court decision left open the critical question of whether the testimony of a SANE acting as both a medical professional and a forensic technician at the behest of law enforcement would be considered nontestimonial.
In September 2013 the Eighth District Court of Appeals in Sergio Herrera v. State ( 2013 Tex. App. LEXIS 11569) held that testimony from a SANE was nontestimonial even though she was acting as both a medical professional and a law enforcement representative.
Important Constitutional Issue Remains
The Texas Court of Criminal Appeals refused to address this open-ended question in February 2014, although the court said, “this is an important constitutional issue, and our decision to refuse appellant’s petition should not be read to foreclose consideration of this same issue in a different case…” Similarly, the U.S. Supreme Court in October 2014 refused to consider what the Texas Court of Criminal Appeals called an “important constitutional issue” when it declined to hear Herrera’s case.
This important constitutional issue remains unaddressed, and criminal defense lawyers should continue to object to expert testimony from SANE nurses and admission of their “medical records,” which are in many cases have become reports compiled as part of a law enforcement investigation.