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MEE Question 4 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.
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