IN COURT OF APPEALS
Edward Richard Krasky,
Filed May 24, 2005
Dissenting, Crippen, Judge*
Kandiyohi County District Court
File No. K1-04-809
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Boyd Beccue, Kandiyohi County Attorney, C. J. Crowell, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for appellant)
Mary M. McMahon, McMahon &
Associates Criminal Defense, Ltd.,
Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.
Statements made by a child victim to a medical professional are not testimonial if the circumstances under which the statements were made would not lead the child, or a reasonable child of her age, to believe that the statements would be available for use at a later trial.
O P I N I O N
In this pretrial appeal from an order suppressing evidence, the state argues that a victim’s statements to a nurse practitioner concerning alleged sexual abuse are admissible over appellant’s Crawford objection because the statements were not testimonial. The state also argues that the district court erred by suppressing its Spreigl evidence. We affirm in part, reverse in part, and remand.
T.L.K. and her five-year-old sister, M.R.K., live with their foster parents,
Tom and Sandy Houston. In April 2004,
Sandy Houston suspected T.L.K. of inappropriately touching M.R.K. and asked T.L.K.
if anyone had ever touched her that way.
T.L.K. responded by describing acts suggesting that her father,
respondent Edward Krasky, had inappropriately touched both her and M.R.K. A few days later,
On May 12, 2004, the Willmar Police Department received a child-protection report regarding T.L.K. and Krasky. Detective Timothy Manuel and the child-protection worker assigned to the case decided to have T.L.K. interviewed at Midwest Children’s Resource Center (MCRC). On May 20, 2004, a nurse practitioner at MCRC interviewed and examined T.L.K. Detective Manuel observed the interview and examination from another room.
During the interview, T.L.K. had difficulty focusing and gave disjointed answers that were difficult to understand. But she was able to provide more direct answers in the subsequent physical examination. In both the interview and the examination, she described several occasions when Krasky touched her with his fingers, tongue, and penis.
Krasky was charged with six counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342 (2002), and six counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343 (2002). After a pretrial hearing on Krasky’s motions to suppress the state’s evidence, the district court ruled that T.L.K.’s statements in the interview and examination were testimonial and, therefore, inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The district court also ruled that the state’s Spreigl evidence was inadmissible. The state appeals from the district court’s order suppressing both T.L.K.’s statements at MCRC and the Spreigl evidence.
1. Did the district court err by ordering the suppression of T.L.K.’s statements in her interview and examination at MCRC?
2. Did the district court err by ordering the suppression of the state’s Spreigl evidence?
appeal from a pretrial order suppressing evidence, the state “must clearly and
unequivocally show both that the trial court’s order will have a ‘critical
impact’ on the state’s ability to prosecute the defendant successfully and that
the order constituted error.” State
v. Scott, 584 N.W.2d 412, 416 (
the district court erred by suppressing T.L.K.’s statements at MCRC is a question
of law, which we review de novo. See State v. Harris, 590 N.W.2d 90, 98 (
In Crawford v. Washington,
the United States Supreme Court ruled that the Confrontation Clause of the
Sixth Amendment bars the admission of testimonial out-of-court statements
unless the declarant is unavailable to testify and the defendant had a prior
opportunity to cross-examine the declarant.
Supreme Court did not define “testimonial” for Confrontation Clause purposes, but
it did describe three types of statements that “share a common nucleus and
. . . define the Clause’s coverage at various levels of
ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, . . . [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
The statements at issue here are neither “ex parte in-court testimony or its functional equivalent” nor are they “extrajudicial statements . . . contained in formalized testimonial materials.” See id. But they may fall into the third and broadest formulation if they “were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” See id.
considered this third formulation of “testimonial” in State v. Scacchetti,
690 N.W.2d 393 (Minn. App. 2005), review granted (
In Scacchetti, we observed that under
the third formulation of testimonial statements described in Crawford,
the defendant must show that “the circumstances surrounding the contested
statements led the [child victim] to reasonably believe her disclosures would
be available for use at a later trial, or that the circumstances would lead a
reasonable child of her age to have that expectation.”
Here, T.L.K. was examined and interviewed at MCRC by a nurse practitioner using what appears to be the same procedure described in Scacchetti. The nurse practitioner conducted a thorough medical examination, including an STD test, and recommended that T.L.K. see a psychotherapist to help her cope with the abuse that she has suffered. The examination was also videotaped, presumably for review by the MCRC director.
In Scacchetti, the circumstances under which the contested statements were given were crucial to our determination of whether the statements were testimonial. Scacchetti, 690 N.W.2d at 396. Here, although the MCRC examination may have been arranged by Detective Manuel and a child-protection worker, there is no indication that T.L.K. thought that her statements might be used in a later trial. T.L.K. was driven to MCRC by her foster mother, and she was shielded from the police presence throughout the MCRC examination. The record is clear that Detective Manuel did not interrupt or direct any portion of the interview or examination. The length of time between the alleged abuse and the examination also suggests that T.L.K. was not aware of any prosecutorial purpose of the examination and did not “reasonably believe that her disclosures would be available for use at a later trial.” Scacchetti, 690 N.W.2d at 396. Although T.L.K. was not in need of immediate medical attention when the examination took place, the record shows that a nurse practitioner performed tests and asked questions so that she could provide a medical diagnosis.
Detective Manual may have anticipated that T.L.K.’s statements at MCRC might
ultimately be used in Krasky’s prosecution, but the circumstances under which
her statements were made do not fall into any of the formulations of “testimonial”
described by the United States Supreme Court in Crawford. See Crawford, 541
The state also argues that the district court erred by suppressing the state’s Spreigl evidence. Again, we will not reverse a pretrial order suppressing evidence unless “the order constituted error.” Scott, 584 N.W.2d at 416.
The state seeks to introduce
evidence that in 1989, Krasky sexually assaulted his stepsister, who was then
eight years old. Evidence of other
crimes is inadmissible to prove bad character, but it may be allowed for the
limited purpose of showing “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
Krasky’s participation in the 1989
offense is clear and convincing. But
evidence of that offense has limited relevance because the circumstances of the
1989 offense are considerably different from those of the alleged assaults here. See
State v. Kennedy, 585
N.W.2d 385, 391 (
The district court suppressed the state’s Spreigl evidence because it determined that the state failed to show that the evidence is material, relevant, or probative. It also noted that the evidence is not relevant because the Spreigl offense occurred more than 15 years ago. We agree and conclude that the district court did not err by suppressing the state’s Spreigl evidence.
D E C I S I O N
Because T.L.K.’s statements were given to a nurse practitioner in circumstances that did not lead her, and would not lead a reasonable child of her age, to believe that the statements would be available for use at a later trial, her statements are not testimonial and are, therefore, admissible. But the state’s Spreigl evidence is inadmissible because the evidence lacks relevance and because the state has not shown that the evidence is necessary to its case.
Affirmed in part, reversed in part, and remanded.
CRIPPEN, Judge (dissenting)
I respectfully dissent. The state’s challenge to the district court’s
suppression of out-of-court statements suggests a judicial assumption that
medical personnel will conduct pretrial investigative interviews with impartiality,
with concern only for health care—that this promise trumps another’s
fundamental constitutional right to cross-examine those who testify against
him. This plea contradicts a skepticism
about crime investigators that is deeply embedded in the Constitution. See
infra, n.4. Although the state
nominally premises its challenge on a reading of Crawford v. Washington, 541
central premise of
are three flaws in the state’s challenge to the district court’s decision. First, the holding of
I. Pretrial Questioning
Confrontation Clause, the
its ultimate holding, wrapping up its opinion and its review of the meaning of
testimonial statements, the Court declares:
“Whatever else the term covers,” it applies “at a minimum” to prior
testimony at a preliminary hearing and to police interrogations.
The judicial challenge created by
begin the discussion of out-of-court testimony, the Court observes that “[a]n
accuser who makes a formal statement to government officers bears testimony in
a sense that a person who makes a casual remark to an acquaintance does
accusatory statements of suspected child abuse victims, taken in settings
selected by public officials and elicited by persons trained for these
interviews, cannot be reasonably excepted from the scope of
A. Investigative Function
reasoning that dangers first perceived in statements to magistrates were later
evident in police interviews, the
even inescapably, this express concern of the
at least, and by law in Minnesota and elsewhere, the investigating function in
child abuse matters rested with police and social service personnel, who were
to coordinate their efforts when either received a report of abuse. See
Minn. Stat. § 626.556, subd. 3(a) (2004) (setting out persons mandated to
report and to investigate). When abuse reporting laws were first enacted, it
was anticipated that medical agencies would be among those reporting discovery
As medical professionals conduct interviews on behalf of police and social service agents, it requires a high preference for form over substance to overlook the fact that they approach the task mindful that the state agents who arranged for their efforts also depend on them to produce evidence, monitor their efforts, and no doubt evaluate their services. It becomes unquestionably evident that the interviewers share with the officials the desire that evidence of criminal conduct be uncovered for later proceedings. In this case, as correctly recited by respondent,
[t]he case was turned over to Detective Timothy Manuel
special training of “medical” interrogators, however beneficial to the ultimate
welfare of the child, makes them no less interested in the prosecution of
suspected crimes. Nor are they less able
than other interviewers to use the pretrial setting in a fashion that differs
from what would occur if the witness were cross-examined as provided by
law. The interviews we review
demonstrate the “[i]nvolvement of government officers in the production of
testimony with an eye toward trial,” and they present “unique potential for
prosecutorial abuse—a fact borne out time and again throughout a history with
which the Framers were keenly familiar.”
doubt there may be cases where medical personnel do not act for the state,
creating circumstances that are substantially different from conduct of persons
anticipating a prosecution. See State v. Jorgensen, 660 N.W.2d 127,
Accordingly, the case we review may be distinguished from hospital examinations of children receiving emergency care. See State v. Scacchetti, 690 N.W.2d 393, 394 (Minn. App. 2005) (reviewing interviews, like those in this case, by staff of Midwest Children’s Resource Center, which is department in hospital), review granted (Minn. Mar. 29, 2005). Medical-services situations of that kind are unlike those where interviewers patently act at the behest of police or social service investigators.
B. Neutrality, Reliability
to the statement that an improper testimonial event arises upon “[i]nvolvement
of government officers production of testimony,” the court declares that this
would be no less so if “neutral” government officers were involved, which the
trial court in Crawford had found to
be the case for questioning by law enforcement officers in the circumstances of
statements rebut the notion that the interviewers in this case are different
because they are in the medical community or are specialists. Moreover, the suggestion of neutrality from
these agents is little more than a claim that statements they produce are more
reliable than others, the standard emphatically rejected by the
C. Historic Comparisons
the Court speaks of police interrogations, it notes that they have the “closest
kinship” to the abusive use of out-of-court-statements in English and colonial
history, which began with pretrial questioning by magistrates and was later
expanded to include pretrial interrogation by police.
We cannot be unaware that prosecutions for the interests of children are a major element of modern criminal justice and are the occasion for a form of pretrial interrogation that has close kinship with the pretrial statements more evident in prior stages of the anglo-American history of the criminal law.
D. Questioning Witnesses
Court clarifies in a footnote that its use of the term “interrogation” is in
its “colloquial” sense and not its “technical legal” sense.
E. Oral Testimony
discussing its proposition that prior cross-examination is the only basis for
admitting a testimonial statement, the
II. Expectations of Declarant
The state contends that the Crawford Court “did give various examples” of testimonial evidence, “including” not only preliminary hearings and police interrogations, but also “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Going further,
[i]t is the State’s position that when attempting to assess whether the declarant’s out of court statement is “testimonial,” the Crawford Court directs us to stand in the shoes of that person at the time he or she makes the statement.
. . .
It is through her eyes, as the declarant, that this court must view her statements.
. . .
[And, t]his little girl, T.L.K. could not reasonably expect that her statements would be used prosecutorially.
considered reading of
the state’s argument goes further, making it even more problematic. The declarant’s understanding is asserted as
a complete substitute for the “comprehensive” view of testimonial statements
expressly envisioned in
Mistakes in this prosecution argument unfold in layers.
A. A Third Standard?
commenting on a useful definition of pretrial testimony, the Court contrasts “a
formal statement to government officers” and “a casual remark to an
Various formulations of this core class of “testimonial” statements exist: [a] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; [b] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; [c] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]
these comments make it evident that discussions of the topic may include
references to the declarant’s beliefs or expectations, at least one formulation
(the second) does not contain the reference, and the remainder of the opinion
makes evident that this understanding is not a concept endorsed by the Court. First, this recitation follows a lengthy
Court discussion of historic abuses in the form of questioning by magistrates
B. Exclusive Standard?
already stated, there is no cause to attribute to
view is confirmed by examining the source of the briefing in
C. Declarant’s Beliefs?
there is still more mischief in what the state argues. What meaning is to be attributed to the
concept advanced by counsel at some stage of briefing in
Initially, the notion of an inquiry on the sophistication of the declarant might reasonably be abandoned due its inevitable absurdity. The supposed standard leads to questions whether pretrial questioning is problematic if a police officer wears no uniform, or wears a costume to hide his or her identity. What if the investigating official merely asks the assistance of a private person who is trained in interrogation? If the official and the victim are in a medical facility, is the occurrence of testimony avoided by asking that a doctor or nurse conduct the questioning?
D. Worthy Purpose?
To still further enlarge this issue, the state adds another layer of argument, the suggestion that statements are not given in a testimonial fashion when they are taken for some other purpose. The state asserts that there was evidence of a valid medical purpose for the interview that is at issue in this case. But this argument also fails to carry weight.
Even if a worthy purpose is shown, this does not show the absence of other purposes. Quite evidently, in child abuse interviews, however important for medical aims, there is a second purpose to prepare for prosecution of criminal charges, a purpose that calls for scrutiny regarding the defendant’s right of confrontation. It is not reasonable to expect that a police interrogation is less problematic when the officer has a proven motive to stop a pattern of crimes, even to save lives. Nor does a magistrate’s questioning become non-testimonial upon demonstration of this official’s impartiality or specific pursuit of truth. Nor is it reasonable to suggest that there is no trial preparation because an officer arranges for questioning by clergy, or a teacher, or another who might serve the intended purpose of gathering evidence while acting with strong motives, among others, to help the child or the child’s family.
a primary concept of constitutional law underlies the state’s error when it
endeavors to capitalize on the worthy purposes of a professional
interviewer: The identification of
motives of any interviewer who knows the prospect of a prosecution should not
be undertaken. As observed in the
introduction of this opinion, liberties under the Constitution are not safely
suspended on the promise that those who serve the public interest will do so
historic practices that the Court reviews, first evident in
often as not, the interviewers, acting prior to criminal proceedings, declare
and no doubt sincerely believe that they are engaged in a fair and just pursuit
of the facts. That is the case
here. But this posture is little more
than a claim that the process is reliable, so reliable that it rivals the value
of cross-examination. This is the claim
explicitly denounced in
The district court’s application of the Constitution, as often is the case, taxes an important public interest. As has been said in this opinion, it is evident that out-of-court interviews of young victims have become a routine part of a widespread and laudable vigilance in prosecuting those who abuse children. It remains our responsibility to declare what is well established, that the pursuit of this vital public interest must be within the confines of compelling constitutional guarantees for the accused. This leaves to the prerogatives of others, as we must, the task of advancing the protection of children within constitutional limits.
Because, in my opinion, the decision to reverse the district court constitutes a far-reaching and unwarranted rejection of the fundamental implications of the Confrontation Clause, I respectfully dissent. And, because our disposition of the state’s claims on Spreigl evidence rests on admitting out-of-court statements, my contrary position on those statements would also require a different analysis of the Spreigl issue.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 When reviewing Courtney,
the supreme court declined to consider the question whether the child’s
statement was erroneously admitted in the aftermath of Crawford. State v. Courtney, ___ N.W.2d ___, ___,
2005 WL 1118042, at *1 n.2, *4 (
 Inexplicably, these facts are omitted from the state’s recitation of facts and its argument.
 Although police involvement in the case at bar is not
mentioned, the state deems it important to report that a medical interviewer in
this case stated to the declarant “several times that the answers were needed
so that [the interviewer] would know what to do to keep T.L.K.’s body healthy.” This observation is significant to show the
medical relevance of the declarant’s answers, but it also demonstrates the
medical interviewer’s sensitivity to legal standards governing the
admissibility of evidence at trial. See
 The authors add a category of non-testimonial statements that begs for interpretation, a statement made “with no recognition that it relates to criminal activity.” Friedman, supra at 1241 n.276. It profits us little to get deeply into an interpretation of this more remote authority, but given the difference the authors enunciate between statements made with or without expectation the statement will be used at trial (the former “always” being testimonial), it is most plausible to see this non-“recognition” category as one where the witness does not understand that the statement deals with wrongful conduct.
 “We have no doubt that the courts below were acting
in utmost good faith when they found reliability. The Framers, however, would not have been
content to indulge in this assumption.
They knew that judges, like other government officers, could not always
be trusted to safeguard the rights of the people . . . . They were loath to leave too much discretion
in judicial hands.” Crawford, 124
 Concern about admitting statements in this case is still further enlarged by exploring, as has not been appropriate under Crawford, whether the challenged statements were reliable under pre-Crawford standards. See United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir. 2000) (determining medical interview unreliable without interviewer’s discussion of why questions were important to diagnosis and treatment “and why it was important for the child to tell the truth regarding the identity of the abuser”); State v. Salazar, 504 N.W.2d 774, 777 (Minn. 1993) (hinging admissibility on showing that child knew she was speaking to medical personnel “and that it was important she tell the truth”) (citing Ring v. Erickson, 983 F.2d 818, 820 (8th Cir. 1992)). The record shows that interviewers repeated to the child that her answers were needed so that the interviewer would know what to do to keep the child’s body healthy. The record otherwise does not show a discussion of the need for the child’s truthfulness. Viewing the question more broadly, the record leaves room for concern about the child’s prospective motive to fabricate. See Sumner, 204 F.3d at 1186 (discussing “trustworthiness” in terms of child’s lack of motive to fabricate).