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The California Supreme Court on Tuesday grappled with whether crime victims’ informal, out-of-court statements should be used against criminal defendants at trial. The court seemed to tread a fine line in trying to determine if such statements � made by victims who never faced cross-examination � constitute “testimonial hearsay” that violates defendants’ Sixth Amendment right to confrontation. El Cajon defense attorney Jeanne Vanderhoff told the justices during oral arguments that the key issue is to decide whether jurors were influenced by the statements. “In this case,” she said, “I think there’s little doubt they were.” Vanderhoff’s client, Lisa Cage, was sentenced to 13 years in prison in 2003 for assaulting her 15-year-old son, John Flores, with a deadly weapon. Officers found the boy about a mile from the mother’s house with a large gash on his face. According to court records, a Riverside County deputy testified he took Flores to a hospital, where the boy told him his mother had cut him with a piece of glass during a fight. An emergency room doctor later testified to essentially the same thing. On appeal, Cage’s lawyers argued that Flores’ comments were “testimonial hearsay” that couldn’t be admitted, since the defense didn’t get to subject the boy to cross-examination. Prosecutors weren’t able to locate Flores for his mother’s trial. At issue is whether the statements in this case come within the terms of Crawford v. Washington, 541 U.S. 36. The U.S. Supreme Court held in that 2004 ruling that testimonial hearsay isn’t admissible unless the defendant has the opportunity to cross-examine the speaker. It also held that a statement taken by officers during an interrogation is testimonial by nature. Riverside’s Fourth District Court of Appeal sided with prosecutors (.pdf) in 2004, holding that Flores’ hospital statements had been properly admitted. The court said the statements were made spontaneously during emergency medical treatment and were not part of a formal police investigation. The appeal court also ruled, though, that a third statement given by the boy during an official station house interrogation definitely constituted inadmissible testimonial hearsay. On Tuesday, the Supreme Court’s justices seemed to feel that statements made to the officer at the hospital were inadmissible because there likely was intent to use them at trial. But they struggled more with the statements made to the doctor. The doctor wasn’t a police agent, the justices said, and his questions to the boy were aimed at providing proper treatment rather than interrogating him about the fight. “Isn’t it common for any physician to ask a victim what happened?” Justice Ming Chin asked Vanderhoff. Vanderhoff responded by arguing that the doctor’s motivation wasn’t a factor, but that he had a duty to interrogate the boy to determine whether he was the victim of child abuse, which by law must be reported to authorities. “He was serving a dual purpose,” she said. Chief Justice Ronald George expressed concerns that allowing such statements to be admitted at trial could be medically detrimental to victims. He worried that crime victims might get improper treatment if they become “less candid” when “word gets around” that statements made to certain doctors could be used at trial. San Diego-based Deputy Attorney General Scott Taylor defended not only the admissibility of the statements to the doctor but also the boy’s emergency-room statements to the officer. The officer, he argued, was trying to determine whether a crime had taken place at that point. “He simply walked into the hospital,” Taylor argued, “and said, ‘What happened?’” The officer, he said, asked “limited, unstructured questions.” In her final comment, Vanderhoff made clear how critical the boy’s statements were to Cage’s trial. “Without those statements,” she said, “there would not have been enough evidence to convict her.” A ruling in People v. Cage, S127344, is due within 90 days.

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