by David M. Reutter

When is hearsay evidence not hearsay? On August 31, 2022, the U.S. Court of Appeals for the Ninth Circuit provided its answer. Affirming the conviction of a federal prisoner in Hawaii for assaulting a fellow prisoner, the Court said that statements from the victim reported by a nurse and a surgeon were not hearsay and may be admitted in court without violating the Sixth Amendment’s “Confrontation Clause.”

Taloa Latu, a prisoner held at the Federal Detention Center (FDC) in Honolulu, appealed his conviction for assaulting fellow prisoner Joseph Yamaguchi on September 11, 2016. Surveillance video showed Latu pacing back and forth and peering into the FDC recreation room, where several prisoners, including Yamaguchi, were seated around a table playing cards. Latu opened the door and began to punch and kick Yamaguchi, who fell to the floor, limping away with blood on his shirt when the attack ended.

About an hour and twenty-five minutes later, guards noticed Yamaguchi had visible swelling to his jaw and eye and sent him to the medical unit. At first, Yamaguchi told nurse Daniel Chi that his injuries were sustained in a fall off his bed. After further questioning, though, Yamaguchi admitted that he was injured during an assault. He was sent to a hospital and examined there by Dr. James Michino, to whom Yamaguchi again stated that he was assaulted. He received same-day surgery for a jaw fractured in two places. He was also treated for face and rib fractures, face and eyebrow lacerations, and a concussion.

Latu was then charged in federal court for the District of Hawaii with assault resulting in serious bodily injury, under 18 U.S.C. § 113 (a)(6). At his trial, Yamaguchi did not testify. But the government moved to admit his statements about the cause of his injuries and his pain level through the testimony of his medical providers. Over Latu’s objection, the district court admitted the statements. A jury returned a guilty verdict, and Latu was sentenced to an additional 96 months of imprisonment.

Latu appealed, arguing that the statements were hearsay and violated the “Confrontation Clause” — the Sixth Amendment guarantee that accused criminals have the right to confront their accusers in court. The Ninth Circuit began its analysis by looking at Fed. R. Evid. 803(4), under which the statements were admitted. The Court said the rule applies to any “statement that: (A) is made for — and reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.”

This creates an exception to the general rule about the inadmissibility of hearsay, the Court explained, reflecting the view that statements for medical diagnosis or treatment “are made under circumstances in which the declarant would be particularly unlikely   United States v. Kootswatewa, 893 F.3d 1127 (9th Cir. 2018).

Yamaguchi’s statements were made within hours of the assault and during a medical assessment of his injuries. Based on those, the medical providers testified that the general cause of his injuries was an assault. Both Chi and Michino testified that their questioning of the cause was for the purpose of determining the severity of the injuries and related to their medical diagnosis and treatment. In the same way, the Court noted, Chi also testified that Yamaguchi reported his pain level was an eight on a scale of ten, which the nurse said provided a “starting point” to track during treatment.

Thus the Court found that “Yamaguchi’s statements to Nurse Chi and Dr. Michino plainly fall within both prongs (A) and (B) of Rule 803(4).” The district court properly admitted their testimony about those statements. No Confrontation Clause violation was found because the statements were not testimonial, nor were they made for the purpose of preserving evidence for trial. Chi’s mission was only to provide medical treatment, and the extent of Yamaguchi’s injuries was relevant to that treatment. The conversations also lacked the formality that often accompanies testimonial statements, the Court noted.

“In the ordinary case, [ ] statements made for medical diagnosis or treatment likely will not be testimonial,” the Ninth Circuit concluded. However, it “adopt[ed] neither a categorical rule nor a presumption to this effect.” Instead, in accord with Crawford v. Washington, 541 U.S. 36 (2004), it said that courts must “consider ‘all of the relevant circumstances.’”

The district court’s judgment was therefore affirmed. Latu was represented at the Court by Kapolei attorney DeAnna S. Dotson. See: United States v. Latu, 46 F.4th 1175 (9th Cir. 2022).

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