Resolving “He said, She said” with Junk Science, the terrifying unchecked testimony of Sexual Assault Nurse Examiners.
Alex DeMarco, a frequent Criminal Defense Attorney in Dakota County, had the opportunity and challenge of handling a criminal sexual conduct case in Dakota County recently. The matter was charged out in 2014. Alex DeMarco pushed it to trial three times, each time it being continued by other cases that were older or involved clients in custody. On the third trial setting, the state dismissed the 3rd Degree Criminal Sexual Conduct case, and recharged it as a criminal sexual conduct in the first degree. This was because, on the day of trial, over a year after his client was arrested, the state suddenly revealed the alleged “victim” had recorded her own sexual assault. The State’s motion to amend the complaint was denied. The State dismissed and re-filed, because the law now holds that a prosecutor can do so out of convenience and bad faith. There is zero constraint on the state’s charging decision thanks to a recent Minnesota Supreme Court Opinion.
Despite it being recharged to the highest degree possible, Alex DeMarco pushed it through to trial yet again. Between the dismissed file and the new file, Alex DeMarco drafted over 400 pages of motions and memorandum and set the case up for trial. That included overcoming the so-called “rape shield” law , moving to suppress the statement of the defendant, and, important to this article, challenging the validity and limiting the testimony of a strange breed of State Expert called a “Sexual Assault Nurse Examiner.”
Ok that seemed like a lot of jargon, and we know the part that leaped out at you. “But Alex, the victim recorded her own sexual assault. The victim was heard saying “no, stop” several times. What would you try that case?” Answer: Because who the heck records their own sexual assault? Think about it. How consistent is that with being sexually assaulted? Ultimate result, despite the admission of this video evidence before a jury= Hung jury. No conviction, all counts. The reason? A Junk Science called a “Sexual Assault Nurse exam”, AKA “SANE” “S.A.N.E” or “SANE exam.” While this is taken for granted by most lawyers, Alex saw through the fallacy of this science and exposed it to the jury. The video was dark, grainy, did not show very much of anything regarding the conduct, and the fact the victim recorded a supposedly traumatic experience when she admitted there was no prior abusive or assault conduct by the defendant was weird and contrived. Frankly, the case might have actually gone a different way if the State’s expert had not testified, but when she did, the jury ultimately could not believe the State’s case beyond a reasonable doubt. If you’re facing a criminal sexual conduct charge in Minnesota, you need to hire an attorney that understands the latest up and coming junk science the State is trying to introduce in criminal courts. If you’re an attorney that is handling criminal sexual conduct cases, you are absolutely committing malpractice if you do not challenge SANE exams every single time they are proposed as evidence, and you need to download every one of the links found througout this article.
If your Criminal Defense Attorney asks you to Resign Yourself to the “Forensic” Evidence, Run To The Hills like Iron Maiden.
Criminal Sexual Conduct cases are among the most difficult to deal with in Minnesota. When a Criminal Defense Attorney is faced with such a case, it is common for that lawyer to underestimate the task that is before him or her. Any defense lawyer that doesn’t immediately approach such a case with an eye toward trial is basically selling prison time. Prosecutors believe their victims. Short of trial, judges see their task as one of protecting public safety with prison terms. Even for the few lawyers hardy enough to try these cases, few understand the presumptions that juries have upon hearing the words “criminal sexual conduct”, Minnesota’s broad statute for prosecuting what is more commonly referred to as “rape” or “sexual assault.” How could a woman ever make such allegations up? Much less, how could a child ever manufacture such an allegation?
Yet a seasoned criminal defense attorney, or anyone with an intellectually honest review of criminal justice and statistics will demonstrate that false allegations of criminal sexual conduct are not infrequent. Studying the “wrongfully convicted” is a difficult task, but according to the National Registry of Exonerations, since 1989, well over 2,000 people have been exonerated for major crimes mostly consisting of murder and rape. Murder and criminal sexual conduct have more work performed on them due to their long prison and/or death sentences. https://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx
Most criminal sexual conduct cases in which someone is ultimately exonerated are the result of DNA evidence. Things that ultimately lead to the conviction of one accused of rape are the testimony of the alleged victim and sketchy forensics. What is most disturbing is that most rape cases do not involve DNA evidence. Most rape cases rise and fall on a credibility determination of the alleged victim and the accused. Further, a great many of those cases involve junk science, so called “forensic evidence” presented by “experts” that are nothing more than agents of the state, funded, trained, and organized nearly exclusively by law enforcement and prosecuting agencies. It would be great to think that the State has made investments in truly advancing good science in these matters for the betterment of society, but that is not what has happened. Instead, they have crafted an industry and invented a procedure out of whole cloth, and the strength of the “evidence” lies not in its precision, but in its ambiguity. Fundamentally, the new “expertise” is empowered to testify that, no matter what their observations, those observations are “consistent” with sexual assault.
Several devastating reports have been published recently which address the forensic science problem in the American Justice System. Among them, “Strengthening Forensic Science in the United States: A Path Forward” the full text of which can be found clicking here. The report details numerous flaws and known falsehoods which the government actively promoted for decades, resulting in the incarceration of numerous innocent defendants. The White House at the time ordered an inventory to be made. The revealing but grossly incomplete “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods”, a report to the President published in September of 2016, was the result of this effort.
Overlooked by these analyses was an emerging field of manufactured expertise called “forensic nursing.” Not “forensic medicine” or “medical evidence”, but “forensic nursing.” Specifically, with regard to criminal sexual conduct cases, more and more cases in Dakota County, Ramsey County, Hennepin County and surrounding areas are being handled through a fast paced process whereby accusers ultimately end up before what are called “Sexual Assault Nurse Examiners.” This differs from any other sort of “forensic” analysis currently being used by laboratories or scientists, such as DNA analysis, bullet marks (which are also problematic), drug testing, etc. This is because a nurse’s job is to treat a patient. It is not her job to doubt the veracity of an alleged rape victim’s story. That is good. That is proper. The nurse has a relationship with that person as a patient, not a witness, and not a subject for mere study. What is COMPLETELY IMPROPER is the admission of that nurse’s “expert” opinion regarding the victim’s story and the consistency of observations with that story. Essentially, the SANE exam seeks to “diagnose” a person with rape through both psychological and physical observations.
In the world of the Sexual Assault Nurse Examiner, or “SANE”, there is no such thing as a case without a victim. All persons presented before them are victims. The very agenda of Nurse Kristi Jarvis, the statewide SANE coordinator, by her own admission in testimony before the court in the case Alex DeMarco worked on, is to “allow them some power and control over their body, because that’s what was taken from them during the assault.” There is zero inquiry, zero analysis done to determine the veracity of the accuser’s story. In the full testimony, she admits fully that, essentially, the cause of injuries in the vagina cannot be determined, and they are no more consistent with sexual assault than consensual sex. (File size in the link above was very large. If you would like a better quality copy, please contact Alex DeMarco).
But it doesn’t end there. Magically, Ms. Jarvis and, by telepathy, therefore, all SANE nurses are apparently able to testify to trauma. Such was the case in the criminal sexual conduct case Alex DeMarco handled in Dakota County. Unfortunately, the Court allowed Ms. Jarvis to testify to this even though, by her own admission, she is not an expert in trauma, as evinced on page 32 of this lengthy interview Alex DeMarco had with her. (She again reiterates that she cannot say any injuries in the case are more consistent with sexual assault than consensual sex).
Nevertheless, Ms. Jarvis, during an in-camera review before jury trial, testified about what she knew of trauma. It was revealing. She stated that Some people laugh, some people cry, some people tell a straight forward story, others lose the order of events in a “jigsaw puzzle”, some people shake nervously, others make jokes, etc. It’s all, again, right here: https://www.mnlegaldefense.com/wp-content/uploads/2017/06/12-9-16-hearing-just-jarvis.pdf Basically, there is not a reaction that isn’t consistent with trauma. Why? Because every single patient is a victim and is never ever presumed to be anything other than a victim. Ms. Jarvis now also comes prepared with a now 28 page resume of every blog and powerpoint presentation she’s ever completed. (In contrast, defense expert Phillip Marcus, like most true professionals, arrived with a simple two page resume’). Nurse Jarvis is particularly proud of a study she considers objective and comprehensive, despite the name, “Debunking three rape myths.” (It’s copyrighted so you you need to buy it. Fancy.) The most obvious problem with the study? You guessed it. ZERO control group. No comparisons made to those who have engaged in consensual sex. Everyone in the study is a victim. But even by that study, vaginal injuries are present in only about half the cases. In her testimony, Nurse Jarvis even admits that she has testified in other criminal cases that often rape victims have NO vaginal injuries. So between trauma being confirmed by literally any reaction to the examination whatsoever, and vaginal injury or lack of vaginal injury being “consistent” with sexual assault (50/50, great odds) basically, every single person examined is a victim, no matter the observations or behaviors noted. In the end, their story is “consistent” with the alleged “forensic” evidence presented by a person with a 28 page resume and an alphabet soup of certificates and titles after her name. (“Kristi Jarvis, BS, RN, SANE-A, EMT-B.” Yes, she actually put bachelor of science after her name, so all you college grads, best start putting some distinction to that ink with a suffix).
STATE SPONSORED EXPERTISE WORKING NOT SIMPLY AS AN EXTENSION OF LAW ENFORCEMENT, BUT ACTUALLY CONTROLLING LAW ENFORCEMENT.
SANE exams started with funding from the Department of Justice, and in Minnesota, they are currently well funded by the Department of Public Safety and Minnesota Office of Justice Programs. The report immediately and directly to law enforcement before and after each exam. From the first penny forward then, they are nothing more than an extension of the police. All of the following links and materials come from two organizations with great, infallible names. One is the “Minnesota Coalition Against Sexual Assault.” This, of course, is meant as a counter to that really super-popular organization, the coalition FOR sexual assault (google it?). A division of this is the Sexual Violence Justice Institute. It is very clear from all the information, as of June 19, 2017, from the website of MNCASA, that Sexual Assault Nurse Exams are the mechanism of what we call a “swabathon” for the BCA as well. The BCA gives them the forms. Testimony at trial revealed, in fact, the BCA gives them all of the swabs and collection kits and evidence bags as well. The SANE nurse might as well be a detective on CSI. ALL of the “medical resources” are built to be confirmatory of any allegation to law enforcement, and actually guide law enforcement, right down to questioning and photographs.
But here is the terrifying part. The entire industry of Sexual Assault Nurse Examination has become INCREDIBLY lucrative. State funding has skyrocketed. Nursing can be a tough profession, but like other industries, if you put a bunch of certifications after the “R.N.”, you can launch yourself into the world of wealthy nursing. One Minnesota Nurse actually dedicated a website to how to become rich doing “forensic nursing.” http://sixfigurenurse.com/2013/04/09/forensic-nursing-with-jessica-bliss-mn-rn-phn-ccrn-tncc/ Moreover, it is actually changing what police do, and essentially leaving every last shred of credibility to these nurses. Lamentably, this junk science movement actually managed to get an academic to promote these practices which will doubtlessly become the Innocence Project nightmares of tomorrow. Rebecca Campbell is a professor who has received MILLIONS to conduct “studies” confirming the bias of SANE exams, none of which, of course, include any comparison to non-victims or even make an effort to determine if alleged victims are telling the truth. Again, that is natural, because a it is not the job of a nurse to doubt a patient, but that also doesn’t make a nurse an objective forensic expert. This is giant shift away from independent medical and scientific analysis which has been demanded by the justice system, and even that is imperfect.
“An important justification for the independence of medical examiners is the public’s interest in having accurate scientific findings available during an inquiry into a sudden, unexpected, or suspicious death. It should be undisputed that the quality of forensic investigation improves when medical examiners operate free from the influence of law enforcement and prosecutors. Cf. NRC Report, supra, at 23–24 (reporting that when forensic scientists are “driven in their work by a need to answer a particular question related to the issues of a particular [criminal] case, they [may] face pressure to sacrifice appropriate methodology for the sake of expediency”). In its standards for medicolegal death investigators, the National Association of Medical Examiners (“NAME”) 10 proclaims that independence from law enforcement agencies and prosecutors “promotes neutral and objective medical assessment of the cause and manner of death.” Garry F. Peterson & Steven C. Clark, Nat’l Assoc.”
– State v. Beecroft, 813 N.W.2d 814, 833 (Minn., 2012)
Most of Rebecca Campbell’s “studies” are funded by an organization with yet another noble name, the “National Institute of Justice”, the Research, Development, and Evaluation agency of the Department of Justice, currently headed by this guy. She is often presented by the International Association of Chiefs of Police. As can be seen from the transcript of her presentation, she began this work by second guessing investigating officers with regard to credibility, and pushed them into a corner where every single allegation is deemed true until proven otherwise, or, better yet, where the buck is passed to SANE examiners as “expert” witnesses.
The Sexual Violence Justice Institute, Part and Parcel with the Minnesota Coalation Against Sexual Assault, make absolutely no apologies. The goal of the entire effort is to invent expert testimony “for more effective prosecution.” They are not interested in determining truth, or giving independent evaluations of evidence. The goal is to make the prosecution’s job easier. In fact, on the MNCASA website appears now the governing procedure for the police in criminal sexual conduct cases. Indeed, counties such as Ramsey and Rice have put the procedure in black and white for their departments. Essentially, the SANE program, a program founded entirely on activism and non-objective studies, is now governing the investigation by law enforcement.
THE USELESSNESS OF SANE TESTIMONY NECESSITATES THAT EVERY DEFENSE LAWYER CHALLENGE IT IN EVERY CASE
The SANE rubric is an exercise in total ambiguity and vagueness that can be construed as confirmatory, or “consistent” in every case. With a resume 28 pages long and a litany of letters making a Sexual Assault Nurse Examiner look like Einstein on paper, the State seeks to dazzle and distract the jury from common sense and reasonable doubt. It’s precisely the type of thing the law speaks against.
“We note at the outset that traditionally we have proceeded with great caution when admitting testimony of expert witnesses, especially in criminal cases. An expert with special knowledge has the potential to influence a jury unduly. Special care must be taken by the trial judge to ensure that the defendant’s presumption of innocence does not get lost in the flurry of expert testimony and, more importantly, that the responsibility for judging credibility and the facts remains with the jury. Thus, the court must ascertain whether such testimony is relevant, see Minn. R. Evid. 404(a), 608(a), whether it is helpful to the trier of fact, see Minn. R. Evid. 702, and whether its prejudicial effect substantially outweighs its probative value, see Minn. R. Evid. 403.
State v. Grecinger, 569 N.W.2d 189 (Minn., 1997)
Unfortunately the admission of expert testimony is apparently becoming assumed as routine, as of late, with regard to sexual assault cases. In an effort to overcome a “he said/she said” case and weigh credibility in court, the State has worked with the S.A.N.E. program to craft a highly detailed but wholly ambiguous area of study specifically to lend credibility to victims. As the case above sums up, when an expert annunciates a certain resume, cites a flurry of training she has been a part of, awards, degrees etc., it invariably begins to lull the lay person into a sense that what this person says is to be trusted, emphasized, and that contrary evidence that does not come from an expert is to be taken less seriously. The S.A.N.E. report is astounding in nearly every case. It contains a flurry of information, specifically, every single bodily imperfection imaginable is espoused and put into the report, using medical terminology that even Alex DeMarco had to ask about. The report comes with a diagram where every abrasion (AKA scratch) and “punctate abrasion” (I.E. a scratch too small to measure), is noted. The picture makes it look like the accuser was run over by a truck, even though absolutely none of these have anything to do with sexual assault.
While it can be generally said that SANE nurse testimony has been admitted for the purpose of discussing why rape victims don’t necessarily report the crime right away, or why they don’t immediately flee, etc., the SANE nurse will try to go much further than that. They will try to say that, during the exam, the alleged victim exhibited behaviors consistent with psychological trauma. This is completely impermissible.
“Therefore, ‘[p]ermitting a person in the role of an expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the complainant was therefore raped, unfairly prejudices the [defendant] by creating an aura of special reliability and trustworthiness.’”
– State v. Obeta, 796 N.W.2d 282, 289-290 (Minn., 2011) citing Saldana, 324 N.W.2d at 229
You would like to think the courts could get this right, but they don’t. Some Courts have parsed words to say that as long as the SANE nurse does not use the term “rape trauma syndrome” or does not offer an opinion that the alleged victim was raped, then such testimony on the issue can be admissable. This is obviously nonsense and swallows the rule and purpose entirely. If the sole issue in the case is whether or not the accuser is a victim of criminal sexual conduct, and the person being accused is the defendant, and the only “trauma” being discussed is rape, than any testimony that “the patient’s behavior was consistent with trauma” is offering precisely the same conclusion as prohibited by Obeta. It should be stricken every time. If it’s admitted, it should be appealed every single time.
However, who wants to appeal? Who wants to get into the “harmless error” of the Court of Appeals where every single legal mistake and every single wrongful evidentiary ruling is almost invariably ruled as “harmless error?” You want to beat this on the district level. You want to defend the accused right the first time. There is anywhere from 10 years to life on the line here. There is only one way to legitimately do this, and that is to call an independent expert witness, preferably someone with an actual resume that doesn’t consist of powerpoint presentations, and maybe actually someone who has examined both sexual assault victims AND women who are not claiming sexual assault. There are a number of expert gynecologists that can and will testify in these cases for a fee. Anyone accused of criminal sexual conduct who is facing the testimony of a Sexual Assault Nurse Examiner should be prepared not only to hire an attorney, but to shell out $5,000 for an expert as well. It is only way for certain to ensure that, if the junk science of SANE exams is not suppressed, that it be refuted at trial. Moreover, the defense has a categorical right to present such expertise.
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts … to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense…Not only does a defendant have a right to present a complete defense, a defendant has a right—at least in theory—to meet the State as an equal in our adversarial system of justice: “strength against strength, resource against resource, argument against argument.” United States v. Bagley, 473 U.S. 667, 694 n. 2, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (Marshall, J., dissenting) (citation omitted) (internal quotations omitted). Therefore, if factfinders are exposed to the opinions of the government’s expert witnesses, a defendant must have an equal opportunity to present to the factfinders the opposing views of the defendant’s experts.14See Barefoot v. Estelle, 463 U.S. 880, 898–99, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), superseded on other grounds by28 U.S.C. § 2253(c)(2).
– State v. Beecroft, 813 N.W.2d 814, 839 (Minn., 2012)
It takes a lot of work to challenge a charge of criminal sexual conduct in Minnesota. The presumption of guilt by a jury can be very hard to overcome. On the other hand, absence evidence that corroborates the testimony of the accuser, the matter can be hard for the State to prove as well. It is precisely for this reason that the State has collaborated with nurses to create a wholesale fallacy called “Sexual Assault Nurse Examinations.” The most telling detail in the whole rubric is that actual doctors are not involved, only nurses. Fundamentally, nurses have a limited function in treating patients. Their job is not a full diagnostic or examination. That is the job of a physician. But physicians are also academics that must review studies, often publish articles, and a diagnostic requires actually differentiating observations and not operating solely to confirm what the patient is saying they are suffering from. When Sexual Assault Nurse Examinations are subject to a combination of common sense, when the curtain is pulled back on all the fancy titles to reveal a total lack of objectivity, when they are subject to the the scrutiny of actual medicine, it adds up to a completely non-credible practice that should scare the daylights out of anyone who is concerned about the wrongfully accused going to prison. When the sexual assault nurse examiner is properly cross-examined by a knowledgeable attorney who also presents a defense expert and solid argument, the SANE exam can and should fall apart at trial.