United States v. Erickson, ___ F.3d ___ (8th Cir. July 12, 2010).

Fifth Circuit addresses an open issue concerning admission of medical statements under the Confrontation Clause; circuit also notes that “there is no constitutional right to confront the victim of a crime” where the government elects not to call the victim at trial, in United States v. Santos, _ F.3d _ (5th Cir. Dec. 2, 2009) (No. 08-31225). On the issue of “whether out-of-court statements made during medical treatment are testimonial,” the circuit was guided by two recent Supreme Court decision. The first case involved dicta from the Court’s most recent Confrontation Clause decision in Melendez-Diaz v. Massachusetts, noting that “medical reports created for treatment purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2533 n.2. The second case concerned Davis v. Washington, which involved an emergency 911 telephone call. The Court concluded that statements to a 911 operator to “enable police assistance to meet an ongoing emergency” were not testimonial. Davis v. Washington, 547 U.S. 813, 828 (2006).

I have had this issue in a court-martial. The case was a spouse physical assault case. It happened overseas, the spouse refused to testify. The military judge found that the wife was not subject to or not properly subpoenaed for trial. But her “excited utterances” and statements at the emergency room were admitted as the sole evidence against the client over hearsay and Crawford objections, along with testimony of the MP who was called to the scene and saw physical injuries.