Confrontation, Testimony from Non-Examining Physician, and Non-Testifying Physician’s Notes as Testimonial Evidence, Plain Error

Criminal Law Update

People v McDonald, __ Mich App __; __ NW2d __ (2011 WL 2694430, No. 301113, decided July 12, 2011)(july’11). McDonald was convicted of CSC 1, kidnapping, and armed robbery. At trial, the emergency room physician who saw the victim, but who did not himself administer the sexual assault examination, was allowed to testify regarding the specifics of that examination. Notes of the examining physician were admitted. The court ruled that, even if this was error, there was a waiver as to the notes, and no objection to the testimony of the non-examining physician. Under the Carines test for non-preserved constitutional error, this did not rise to plain error because testimony elicited from the physician was helpful to Defendant, and police, through other evidence, where led to Defendant, and the victim identified Defendant as the rapist.