February 2008 Evidence Question 4

MEE Question 4

Victor was taken by ambulance to a hospital. Standard hospital practice requires the admitting nurse in the emergency room to record all information provided by a patient about the cause of the patient’s illness or injury. Following that practice, the admitting nurse, Nurse, asked Victor: “What happened?” Victor responded: “I was stabbed with a big knife. Dan did it.” Nurse immediately wrote Victor’s statement in the appropriate place in the hospital record.

One week after his hospital admission, Victor unexpectedly died as a result of the stab wound. Dan was charged with Victor’s murder.

When Victor’s wife, Wife, heard of Dan’s arrest, she was shocked. She told Friend, “When Victor and I were alone together in the hospital, he told me who stabbed him, and it wasn’t Dan!” But Wife refused to tell Friend whom Victor had identified as his assailant.

During the trial, in order to prove that Dan stabbed Victor, the prosecutor offered the hospital record made by Nurse that contained Victor’s statement that Dan stabbed him. The prosecutor cannot locate Nurse to testify at trial. Defense counsel objected to admission of the hospital record and the statements in it, but the court overruled the objection.

During the presentation of Dan’s case, defense counsel suggested that Victor had been attacked by Stepson, Wife’s child by a previous marriage. Defense counsel called Wife as a witness and questioned her concerning Victor’s statement to her about the identity of his assailant. Wife refused to answer on the basis of the marital privilege. The prosecutor objected to the questions directed to Wife on the grounds that they sought to elicit hearsay. The court sustained both Wife’s claim of privilege and the prosecutor’s hearsay objection.

1. Did the trial court err in admitting into evidence the hospital record containing Victor’s statement? Explain.

2. Did the trial court err in sustaining Wife’s claim of privilege? Explain.

3. Did the trial court err in sustaining the prosecutor’s hearsay objection to Wife’s testimony? Explain.

1 February 2008 Evidence Analysis

EVIDENCE I.D.1.; III.A.; V.A., D.

ANALYSIS

Legal Problems: (1)(a) When a hospital record is offered into evidence to prove the truth of an out-of-court statement contained therein, must the record itself, the out-of-court statement, or both be covered by a hearsay exception?

(1)(b) Is Nurse’s notation of Victor’s statement a business record that can be admitted to prove the content of Victor’s statement?

(1)(c) Is Victor’s statement, which relates both to the general cause of his injuries and to the identity of the person causing the injuries, admissible to prove the truth of the matter stated?

(2) May a spouse assert the marital privilege in order not to testify with respect to communications with a deceased spouse?

(3) When a hearsay statement has been admitted, is an inconsistent hearsay statement admissible to attack the credibility of the hearsay declarant?

DISCUSSION

Summary

Both the hospital record and Victor’s statement in it are hearsay, and each must fall within an exception to the hearsay rule in order for Victor’s statement to be admissible for its truth. The hospital record falls within the business-records exception to the hearsay rule. Victor’s statement that he was stabbed may fall within the hearsay exception for statements relating to medical diagnosis and treatment, but Victor’s identification of Dan as his assailant is not pertinent to his medical treatment and would not fall within the medical diagnosis or any other hearsay exception. Consequently, that portion of Victor’s statement is inadmissible to prove that Dan stabbed Victor and should have been excluded from evidence.

In most jurisdictions, Wife will be able to invoke the privilege for confidential marital communications and refuse to testify to what Victor told her. In some jurisdictions, however, only the “communicating spouse” can invoke the privilege, so in those jurisdictions, Wife would be required to testify.

If Wife cannot invoke the marital privilege, her testimony as to Victor’s identification of his assailant is admissible only for the purposes of impeaching Victor’s hearsay declaration that Dan stabbed him. If that hearsay declaration is not admitted, Victor’s statement to Wife should also be excluded.

2 February 2008 Evidence Analysis

Point One(a): (20–30%) Because the hospital record is being offered to prove both that Victor made certain statements to Nurse and that those statements are true, it is double hearsay and is admissible only if both the hospital record and the statements made by Victor fall within hearsay exceptions.

Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” FED. R. EVID. 801(c). Hearsay is generally inadmissible. FED. R. EVID. 802.

Here, the hospital record is “double hearsay,” and both levels of hearsay must fall within a hearsay exception or the record is inadmissible. The record itself is the first level of hearsay. The record is an “out-of-court statement,” and the prosecutor is offering it to prove the truth of what it says—that Victor told Nurse that Dan stabbed him. Without Nurse present to prove what she heard Victor say, her “out-of-court statement” about Victor’s words, in the form of her notation in his hospital record, is admissible only if the record falls within a hearsay exception. (See Point One(b).)

The prosecutor is also seeking to prove that what Victor said (“Dan stabbed me”) is true. This is also hearsay because Victor’s statement was made out of court and is offered for its truth. Therefore, the prosecutor must show that Victor’s statement falls within a hearsay exception. (See Point One(c).)

Point One(b): (20–30%) The hospital record satisfies the business-records exception to the hearsay rule.

A record of “acts, events, conditions, opinions, or diagnoses” is admissible under the business- records exception to the hearsay rule if it is “made at or near the time” of the recorded event by “a person with knowledge” of the event. FED. R. EVID. 803(6). Additionally, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make the record. Id. This foundation can be introduced through the testimony of a record custodian or other person with knowledge of the method of record keeping. It is not necessary that the person with knowledge of the matter entered testify at trial. United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990).

Nurse’s notation in the hospital record concerning Victor’s statements to her falls within the business-records exception. Nurse had personal knowledge of what Victor said, and she wrote down his statements “at or near the time” that he made them. The facts state that it is the regular practice of the hospital to record this sort of information in a patient’s record.

Point One(c): (20–30%) Victor’s statement to Nurse that he was stabbed may be admissible for the truth of the matter stated because it falls within the hearsay exception for statements made for the purpose of receiving medical diagnosis and treatment; however, Victor’s identification of his assailant as “Dan” is not admissible because it was not pertinent to diagnosis or treatment.

As noted earlier, Victor’s statement is itself hearsay because the prosecutor is offering it to prove the truth of the matter asserted—that Dan stabbed Victor. Therefore, even if the hospital record February 2008 Evidence Analysis

is admissible to prove what Victor said, the statement should still be excluded unless Victor’s statement itself falls within a hearsay exception.

Statements made by a person who is seeking medical treatment are exempted from the ban on hearsay if the statements concern medical history, symptoms, “or the inception or general character of the cause” of the symptoms. FED. R. EVID. 803(4). Hence, Victor’s statement to Nurse about the cause of his injuries may qualify for this hearsay exception.

However, the rationale for this hearsay exception is that statements made by people seeking medical treatment will generally be reliable because of the declarants’ knowledge that medical diagnosis or treatment will be facilitated by such statements (or hindered if the statements are false). Thus, this hearsay exception is limited to statements that are “reasonably pertinent to diagnosis or treatment.” Id.

Statements which relate to the cause of the medical condition being diagnosed or treated are generally viewed as “pertinent to diagnosis or treatment.” Thus, Victor’s statement that he was stabbed with a knife would fall within the exception and would be admissible. But statements of fault ordinarily are not admitted under this exception, because the identity of the person who was at fault in causing the injury is not relevant to the treatment that is to be given. Thus, the portion of Victor’s statement identifying Dan as the assailant is inadmissible. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 8.75 (3d ed. 2007).

In short, although the hospital record of what Victor said is admissible even though it is hearsay, Victor’s identification of his assailant is also hearsay and is inadmissible because it does not fall within an exception. Therefore, the trial court should not admit the record containing that statement.

Point Two: (20–30%) The testimonial spousal privilege may only be asserted by a spouse who is testifying against an accused spouse. The marital-confidential-communications privilege can be asserted by either spouse. Wife may assert the privilege and refuse to testify concerning her confidential communications with Victor.

Two evidentiary privileges apply to the marital relationship. The federal courts recognize a testimonial or witness privilege under which a witness-spouse has the right not to testify against an accused spouse in a criminal case. Trammel v. United States, 445 U.S. 40 (1980). This privilege is inapplicable in this case because Wife has not been asked to testify against her husband, Victor.

The federal courts and most states also recognize a second privilege for confidential communications between spouses when those communications occur during the marriage. United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995). The privilege protects communications during marriage even if the marriage no longer exists and even if one of the parties to the marriage is dead.

February 2008 Evidence Analysis

Under the majority view, both spouses hold the privilege for all communications between them. Here, Wife could invoke the privilege and be excused from testifying as to Victor’s statements to her because all the requirements of the privilege are met: Victor’s statements were statements of one spouse to another in private (it appears that no one overheard them), and neither Wife nor Victor revealed their exact content to anyone else. These confidential communications between spouses are protected by the privilege.

Some courts, however, have taken the position that only the communicating spouse can assert the privilege. Under that minority view, Wife could not assert the privilege and would have to reveal what Victor said. See 1 KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE § 83 (6th ed. 2006).

Here, however, it is possible that Wife will not be allowed to invoke the privilege because she broke the confidentiality of her communications with her husband when she told Friend, a third party, some of what her husband told her. The marital communications privilege is intended to protect the confidentiality of spousal discussions. Where one spouse has revealed the content of those communications to a third person, then confidentiality no longer exists and the privilege probably should not apply. At the very least, Wife might be required to testify to the fact that she has already revealed to Friend: that Victor told her that he was attacked by someone other than Dan.

Point Three: (10–20%) The prosecutor’s hearsay objection to testimony about Victor’s statement to Wife should not have been sustained because the court had previously admitted Victor’s hearsay statement that Dan was his assailant. Once an out-of-court statement is offered for its truth, the credibility of the hearsay declarant may be attacked with an inconsistent statement by that declarant, including statements that would otherwise be hearsay. Thus, once Victor’s identification of Dan as his assailant was admitted into evidence, his inconsistent statement to Wife could be admitted to attack his credibility.

Victor’s statement to Wife that Dan was not his assailant is hearsay (because it was made outside the courtroom) and could not have been admitted to prove the truth of the matter stated. Victor’s statement is nonetheless admissible to impeach his credibility.

On the facts, the court has admitted Victor’s hearsay statement to Nurse that Dan attacked him. Once a hearsay statement is admitted into evidence, the hearsay declarant’s credibility may be attacked just as though the hearsay declarant were a witness at trial. In addition, any inconsistent statement made by the hearsay declarant may be admitted to impeach the declarant’s credibility. FED. R. EVID. 806. Thus, if the hospital record is admitted to prove that Victor identified Dan as his assailant, then Victor’s statement to Wife (identifying someone else as his assailant) is admissible to attack Victor’s credibility, despite the existence of the hearsay rule. 4 CHRISTOPHER LOUISELL & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 511 (2d ed. 1994). (Of course, Wife’s privilege claim may still prevent admission of the statement.)