NM top court allows late victim's statements in trial - Albuquerque Journal

NM top court allows late victim’s statements in trial

New Mexico Supreme Court building (Eddie Moore/Albuquerque Journal)

Copyright © 2022 Albuquerque Journal

A rape victim’s communication with a sexual assault nurse examiner can be used in the trial against the alleged perpetrator, even though the victim is now deceased, the New Mexico Supreme Court has ruled.

While the U.S. Constitution assures those accused of crimes the right to confront witnesses against them, the state’s highest court decided Thursday that using much of what a rape victim – who died in 2018 of causes unrelated to the incident – told the nurse examiner in 2017 would not violate defendant Oliver Tsosie’s constitutional rights because the “primary purpose” of those statements “was not testimonial” in nature. While the nurse examiner’s role is both to collect evidence and to provide medical care, the court determined that statements related to medical care should be allowed.

The victim’s statements to the nurse examiner occurred at a clinic inside the Family Advocacy Center on the same night the 2017 incident occurred – details the court cited in its ruling that most of the victim’s statements were related to medical care.

“We conclude that the evidence regarding this timing circumstance supports the primary purpose of the SANE exam being nontestimonial,” Chief Justice C. Shannon Bacon wrote in the majority opinion. Fellow justices David Thomson and Julie Vargas signed onto the opinion.

But Justice Michael Vigil dissented, arguing that the majority “ignores” the primary purpose of the SANE exam.

“The core characteristic of SANE examinations is the collection and preservation of evidence, irrespective of necessary medical treatment,” Vigil wrote in his dissent.

The Supreme Court’s majority reversed lower courts, which had “found nearly all of the statements to the SANE nurse inadmissable in the pending trial of Oliver Tsosie,” according to a news release from the Administrative Office of the Courts. The court sent the case back to the District Court to decide other questions about admitting statements.

Tsosie is on trial for a 2017 incident. He has been charged with criminal sexual penetration, kidnapping, aggravated assault and battery, burglary and bribery of a witness, according to the AOC, but his trial is on hold due to the evidentiary questions.

New Mexico Attorney General Hector Balderas hailed the ruling as “significant.”

“I am pleased that the Supreme Court recognized the important medical role that SANEs provide for sexual assault victims,” he said in a statement. “It is important that sexual assault victims seek help from such professionals who can provide needed help and services.”

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