well the next matter on the calendar is pham versus kirkpatrick sixteen thirty five forty two judge that is always the case with corpus the question is deference to the state court decision was the decision contrary to supreme court law or was it a missed misstep cation of the lower to the fact that's who the statements were made to that somehow the crawford requirements do not apply or not do not clearly apply or were not not clear under supreme court law at the time i think and more nuanced than what the street court i believe decided it was because the primary purpose of the discussions with the treating physicians in the hospital was was treatment violate a clearly established constitutional well i think that that that that question is more a matter of whether or not the court correctly applied the law to the court has never held that statements to a doctor fall under crawford there's some sort of an exception and therefore we don't care and secondly they they didn't invoke the primary purpose  test and say that the primary purpose was medical treatment i think with that for that question i think it's also important to underline that this was a sexual assault forensic exam and i don't think it's disputed that in fact the state has in effect enlisted the assistance of medical personnel in vesta gating in prosecuting sexual assaults they've set up a whole program and they've given the person a name and i don't think it's just spewed that  purpose of the examination was to get information for the investigation and prosecution of a sexual assault and so the question is was that the primary purpose and  a court did the state court found that it was however without doing any analysis of any of the facts in a case that i need to backpedal for a minute you know why isn't it dispositive of the case that supreme court in ohio versus clark which was issued after the state court opinion here said that it was an open question whether the confrontation clause even applies to statements made to individuals who aren't law enforcement officials i mean when we were debating this is it the debt or a question we can all  you know have different views about the import of these statements and the context and whether it's a primary purpose or dual purpose but you know the supreme court  from trying to not give dispositive effect to statements made to law enforcement that weren't susceptible to cross examination and you know the whole prosecution of walter raleigh and the you know the history of prosecutions that took place in the civil law kind of inquisitorial system and we're really far from that here the supreme court had was saying at the very time that the supreme at the state court decided this that it was an open question why isn't that enough this opinion court had never before ruled on whether and that's certainly true on whether or not the statements made let's say to a doctor in the social worker in the clark case  e subject to crawford for that matter when they decided milan melendez yes thank you they had never before ruled whether or not statements made to you know were coming through a laboratory  the question which means what was the supreme court law the crawford rule as was that statements made out of court  without the ability that were testimonial without the ability to cross examine the person who made the statements are subject to crawford are violations of confrontation and subsequent cases analyzed evaluated discussed what testimonial means but there's nothing about that general principle in crawford that in any way makes the identity  speaker or the identity of the question are of particular importance the and i think that that level of specificity in that decision means that it doesn't matter means that the question is that the critical question is testimony you know where the where this statements testimonial but there's nothing about the general principles in crawford that the underlying law of the background  that says that the speaker it matters who the speaker is or it matters who the interviewer is and there's no one one would expect from that decision that the that the next case that came along with a different speaker or the next case that came along with a different interviewer would also fall under crawford the statements might not be testimonial that's always up for grabs but i would say that in fact it is clear supreme court law regardless of the speaker regardless of the question or if the statements are testimonial than they just don't then they don't come in and it's and it's a matter of what fact pattern is presented with the next time the supreme court has a case if for example  the supreme court well it happened in the spring go to has a case that involves a social worker they say oh ok this is new we've never had to go to work before but it applies to social workers  and then they were to say oh it's a doctor well we had applies to doctors and the next case is a dentist oh it applies to dentists i don't think that that means that it's new law i think that it just means that they're applying a clearly established principle to a new set of facts but not fat not a new set of facts that is creates a whole new a new legal concept so much i three have an argument and you have three minutes that this case was decided the supreme court had in fact never even answered the question and had specifically reserved the question of whether statements made to anyone other than law enforcement officers might be might implicate the confrontation clause at all in fact the quote from the footnote in footnotes in davis and michigan be bryant which was again quoted in ohio v clark subsequent to this decision was that if expressly reserve the question of whether and w statements to someone other than law enforcement personnel or testimony also was an open question at that time whether there would be any confrontation analysis but in this situation make of the fact that it was officer whitney who suggested that oh here she go to the hospital and that was because of his impetus that she went to have the rape kit done and had this interview doesn't that and and i guess there was agreement also from the doctor that the it was from the doctor from her that her statements would be shared with law enforcement doesn't doesn't that give a kind of law enforcement cast to the interview well first there's nothing to be made of the fact that officer whitney suggested there that she go to the emergency room because if you look at the timeline of these events this isn't a situation where someone went through something medically traumatic sat back waited spoke to the police officer at that point and then decided to go to the emergency room this is an absolutely fluid series of events the sexual assault occurs the victim reaches out to her immediate family over the phone who immediately arrive the police are called before her brother a brother in law gets there and then the officer arrives while the defendant is still in the house and being held down on the couch by the brother this isn't a situation where she really had the opportunity to think about what she exactly wanted to do all she knew was that she was in trouble and she needed help and she quite reasonably called the police first she's speaking to the police officer soon as he arrives at the scene i think it's there's really nothing to say about her not at that point running off to the emergency room she's going to wait and cooperate i take it there's no connection between her rather tragic subsequent death of a heart attack remarkably similar this was actually a rape victim there who also died of unrelated causes prior to trial and that's the way the sixth circuit framed the issue as the district court i believe i've done a lot of it's to state the hope hope  it is the the that's sort of raises a problem if you in this case you ask this in other cases there's a lot of state cases where this situation happens it's not always the death but various reasons why the i thought you said the six or in the six  it was just like this it was a it was a the death of the rape victim and there i believe the way they characterized it is they said the supreme court has never ruled on the applicability of crawford and its confrontation l c s to statements made with a dual purpose one for medical treatment and one perhaps to aid in prosecution here it's essentially the same thing but as the developed a vision found in this case they looked and they said look there was a primary purpose here it was to give medical treatment although as  purposes at this point i would say no but of course we have as we've argued in the brief there's plenty of record support here for a finding that it is was in fact the primary purpose so either way if you were to analyze it you would come to the conclusion that the the state court here did not act on reasonably in a prying applying supreme it would just like without any particular knowledge i'm looking forward to the next case which there will be all dual purpose that if you think it's if you're a doctor forensic or otherwise and somebody brought in who was the apparent victim of a crime you're doing it for two purposes you want to get better and you know that may be a and it's quite possible although there are certain circumstances i believe in ohio v clark when they had a very young child they it was acknowledged that perhaps the child had no purpose at all when he made the statements but when you're dealing with an adult i think we can assume there's a purpose that's never the case i'm just saying that sounds to me without particular fact it sounds to me like routinely what happens in the emergency ward when somebody is brought in and a doctor forensic examines them the doctor  knows that first i've got to get this person to live rather than die and second there's likely to be can't be an unusual circumstance they are on or it's not and i think it's worth pointing out that the doctor in this case like any sexual a safe examiner implies physician even though the f unethically it sounds like position but it doesn't stand for it when question for you was the report itself actually entered into evidence we don't have a complete record and i saw the testimony of the examiner reading from that report and basically we've i guess she read the text of the medical report is in the state court record i mean is that in its entirety and she did as your honor recognizes the examiner testified sed straight from the document she read at least when she got to the main narrative of the sexual assault that have been provided by the victim she read it verbatim from the form that she  she was asking the questions at the outset and then it's pointed out in the brief i think it's worth mentioning that the exam itself has many facets it has a it has four phases according to the doctor in the first phase is what's called the history persons would have thought in that circumstance but you can't discount what the doctor here actually testified about her own understanding of her own purpose in doing this particularly since she actually was she trained other examiners at her hospital and she was well versed in the she she actually started the program to train people to do this there but she testified that these questions at the outset of the exam were primarily motivated so that she could provide the medical treatment of the victim first and foremost clearly there are other things that happened later in the exam which one would be hardpressed argue serve a medical purpose for this individual such as collecting swabs that might be used for forensic analysis later but this early portion of this history portion unquestionably subject to the analysis that it was reasonable to find that she was acting with medical purpose and that the victim would have understood that if she was answering these questions as we point out in the brief she'd already spoken to the police officer  then arrest of the defendant she really had every reason to believe that she was in the hospital informal environment speaking to doc dr so the medical purpose included she said the discharge plan  making sure that she had a safe place to go exactly that's the reason for asking about the identity of the assailant although would not be unreasonable to find another reason to ask about the identity of the saillant is given that it's a sexual assault and many of the consequences that can come from that involve is pregnancy if you know that person if you know their history that can completely inform how one goes about treating the medical condition in that instance she didn't testify to that but the appellate division here certainly could have found that jack i think that the entire medical record is in the appendix from a one seventy three medical record is there but i can't tell whether it itself had been admitted into evidence i have the testimony of her reading from it of the doctor but i wri that that may be may be a way of looking at it but they do use the language supreme court has used the language primary purpose and we've argued that in fact if you're on the assumption that crawford applies and that you therefore have to test whether these statements are testimonial you need to analyze all the factors you need to analyze the context you need to analyze the intent of the speaker in the intent of the interviewer according to court and then of that was done the appellate division accepted apparently accepted the doctor's conclusion the statement i was doing this for medical purposes and i think that that's another reason the fact that the appellate division what's what's ailing you what happened to you where do you and where were you right and then and the doctors test i'm going to treat the doctors testimony about about that about how she approached that is  not it's not that it's not ambiguous it's just not really in the testimony what did you say first and then what did she say and what did you say next so we don't really know how that that questioning went but i think we need to keep in mind that it was medical and i'm delighted that she received medical attention i just question whether or not what she said should have been introduced into evidence against my client and that does not prevent tired from getting medical attention  i'm going to leave thank you very much all right thank you very much we'll take the matter under advisement