Lecture 32 - Ny & Multistate Evidence Part Iv

Front 1

What is hearsay?

Back 1

Hearsay is a person's statement made outside of the court, which is being offered into evidence at the trial to prove the truth of the matter asserted in the statement.

Front 2

If an out of court statement is being offered for the purpose of proving what 3 things?

Back 2

1. that D, a driver
2. M, a manufacturer of a product or
3. the possessor of realty
had notice of a dangerous defect, but W, a witness will testify that she heard X tell 1, 2, or 3 above about the existence of the dangerous condition, then X's out of court statement is not being offered for the truth of its content, but is offered just to prove the statement was made and that the defendant (1, 2, or 3 above) had knowledge of the dangerous condition. BRIBE K.

Front 3

The moment a testifying witness begins to quote what he (W) or another person previously said outside of court, then it involves what?

Back 3

Testimony of an out of court statement. Hearsay is excluded primarily because it was not made under oath and was not tested by cross examination.

Front 4

What does hearsay include?

Back 4

Hearsay includes a "person's" out of court verbal or written statements as well as non-verbal conduct intended as an assertion for purposes of communicating.

Front 5

An out of court statement is not hearsay where liability is based on what was said. What about the words themselves?

Back 5

If the words themselves have independent legal consequences (i.e. where the words constitute a cause of action or a defense) then those words are not hearsay. For example,
1. defamatory words
2. SIR M fraudulent statements
3. the offer and the acceptance of a contract
4. a bribe
5. threats or
6. the donor’s words spoken while making an AID gift.

Front 6

Are these words being offered into evidence?

Back 6

These words are not being offered into evidence to prove their truth, but simply to prove the words were spoken and the words themselves constitute a cause of action, a defense, or a crime.

Front 7

Hearsay is all out of court statements including those of the testifying witness except what are not deemed hearsay and are admissible for the truth?

Back 7

4 priors are not deemed hearsay and are admissible for the truth of the out of court statement provided the out of court declarant takes the stand at the trial and is subject to cross examination.

Front 8

1. Is a witness's prior inconsistent judicial statement that was previously given under oath subject to the penalty of perjury at a trial, hearing, a grand jury, or a deposition admissible?

Back 8

It is admissible for impeaching the testifying witness as well as for the truth of its content.

Front 9

IS a witness’s non-judicial prior inconsistent statement hearsay?

Back 9

A witness's non-judicial prior inconsistent statement is not hearsay when offered to CRIB PIC (to impeach) a witness because that out of court statement is not being offered for its truth, but simply to show W gave a prior version and thus is not worthy of belief.

Front 10

What is prior #2?

Back 10

2. A witness's prior consistent statement and it need not have been made under oath at a formal hearing when it is offered to rehabilitate a witness and to rebut a charge of recent fabrication based on that witness's bias, but only if the prior statement was made before there was any motive to falsify.

Front 11

3. What is prior # 3?

Back 11

A witness's prior recorded recollection

Front 12

Identify and explain prior #4.

Back 12

4. A witness's prior out of court identification of a defendant (e.g. at a line-up) is not hearsay provided the identifying witness takes the stand and is subject to cross examination. If because of the defendant's changed appearance or W's memory lapse, W is unable to identify the defendant at the trial, then anyone who perceived that witness's out of court identification can testify as to what W said at the line-up. This does not violate the criminal defendant's 6th amendment confrontation right, which guarantees only the "opportunity" to cross examine and to test a witness's credibility under oath in front of the jury. Since the out-of-court declarant who identified D must take the witness stand at the trial, the confrontation clause is satisfied.
If the identification witness dies, disappears, or is otherwise unavailable at D's criminal trial (MR. POD), then someone who heard this out of court identification cannot testify at D's trial because that out of court statement is now hearsay since the identifying witness would not be testifying at the trial. This rule is subject to the intimidated witness hearsay exception

Front 13

In NY, what does the hearsay rule not apply to?

Back 13

In NY, the hearsay rule does not apply in small claims courts ($5,000 or less), arbitration proceedings, or in administrative agency hearings.

Front 14

At an administrative hearing, hearsay alone may form the basis of substantial evidence. In a NY civil child custody proceeding that involves allegations of child abuse or neglect in what 2 instances?

Back 14

1. the social worker privilege, the husband wife privilege, the doctor-patient privilege, the psychologist-patient privilege or the rape-counselor privilege cannot be invoked to exclude otherwise admissible probative evidence and
2. the child’s hearsay statements made to 3rd parties pertaining to the abuse or neglect are admissible as long as those statements are corroborated by some other evidence.

Front 15

What does the confrontation clause guarantee?

Back 15

The Confrontation Clause in the 6th and 14th amendments guarantees a criminal defendant the right to confront (cross examine) witnesses at his criminal trial. It is not applicable to civil cases, to criminal pretrial hearings, or in the post trial sentencing proceedings. It prohibits only hearsay of a “testimonial nature” from being offered at a criminal trial. Thus, non-testimonial hearsay that falls within a hearsay exception (AIRIES DWARFS) do not violate the confrontation clause.

Front 16

When do testimonial hearsay arise?

Back 16

Testimonial hearsay arises when there is police involvement in procuring that out of court statement and where an objective person would believe that the statement could be introduced subsequently at a criminal trial to prosecute the defendant. Testimonial hearsay is admissible only where the out of court declarant is unavailable (MR. POD) and the defendant's attorney had a prior opportunity to cross examine the declarant. For example, former trial testimony where the criminal defendant successfully appealed the verdict and a new trial was ordered.

Front 17

Do courts look at the primary purpose?

Back 17

Courts look at the primary purpose in asking a question to the out of court declarant to determine whether the out of court statement is testimonial in nature.

Front 18

Non-testimonial hearsay is BEAD. What does BEAD stand for ?

Back 18

B - business records, which by their very nature are not testimonial, but the business record exception does not apply to records prepared in anticipation of litigation. For example,
(a) A fingerprint report which is inherently accusatory is testimonial in nature.
(b) An autopsy report is not testimonial especially when offered through the testimony of another medical examiner.
(c) Records containing the routine inspection, calibration, and maintenance of a breathalyzer to prove it was functioning properly are admissible under the "primary purpose" rule as a business record without the testimony of the employee who create the record since this evidence does not prove an element of the crime. It just proves the machine was properly functioning. This is contrasted with a breathalyzer report which is testimonial in nature requiring the police officer who conducted the test to come into court and testify.
E - an excited utterance.
A - admissions made by a co-conspirator during and in furtherance of the conspiracy.
D - Dying declarations made to a police officer since the primary purpose for the police asking the question was to meet an ongoing emergency.

Front 19

Absent a 6th amendment confrontation clause violation in a criminal trial involves what?

Back 19

Absent a 6th amendment confrontation clause violation in a criminal trial involving hearsay of a testimonial nature., hearsay is admissible in civil or criminal cases, but the party offering hearsay statement must prove by a preponderance of the evidence that the out of court statement falls within a well-founded hearsay exception. AIRES DWARFS.

Front 20

In order to introduce the last 6 hearsay exceptions (the 6 DWARFS hearsay), the out of court declarant must be MR. POD unavailable to testify at the trial. MR POD opens the door for the 6 unavailable hearsay to be admitted into court. What does MR POD stand for?

Back 20

M - lacks memory
R - refuses to testify even when ordered to do so by a court
P - invokes a privilege (CHIMPS RAP)
O - outside the court's subpoena power
D - dead or infirm (too weak to testify)

Front 21

If the 6 DWARFS hearsay is admitted because of MR. POD unavailability, then what happens to the credibility?

Back 21

The credibility of that out of court declarant may be impeached (CRIB PIC) just as if that witness had in fact taken the stand and testified. For example, calling other witnesses to show the out of court declarant's bias, bad reputation for truthfulness, prior VIC acts, prior inconsistent statements, or prior convictions. The unavailable witness's inconsistent statement is admissible even thought that unavailable witness never had an opportunity to explain or deny making the inconsistent statement.

Front 22

Problem: W, a witness at a price fixing trial of a retail store testified that X, a former employee of D's told W just after X had been fired, "This store has been fixing prices for years and I'm not afraid to tell you this because it would be hearsay at a trial." Is X correct? Yes because it is an out of court statement being offered to prove the truth of the facts asserted in the statement. Could X's out of court statement be used at the trial for any purpose?

Back 22

Yes, if X was called as a witness and X denied the price fixing, then it could be used to impeach X's credibility as a prior inconsistent statement provided that either while X was on the stand or after X testified, he was given an opportunity to deny or explain the statement.
If X is unavailable to testify at the trial (MR. POD), then X's out of court statement to W could not be placed on the record because it was hearsay and did not fall into any AIRES DWARFS exception

Front 23

An out of court statement introduced to show the state of mind of the listener who heard the statement is not hearsay because it is not being offered to prove the truth of the facts asserted in the statement, but is independently relevant and admissible to circumstantially show the statement's affect on the listener. BRIBE K. Explain what BRIBE K stands for.

Back 23

B - Belief.
R - Reason.
I - Intent.
B - Bias.
E - Emotion.
K - knowledge or notice.

Front 24

An opposing party's out of court statements are not considered hearsay when offered "against that opposing party". Why is this?

Back 24

The "against the opposing party" requirement prevents a party from introducing her own self-serving out of court hearsay declarations. For example, a plaintiff can offer the defendant's out of court statements and the defendant can offer the plaintiff's statements, but an admission cannot be offered by a party on the same side of the litigation. For example, a co-defendant offering another co-defendant's out of court statement.

Front 25

If a party was mistaken when an admission was made, does this prevent the statement from being made?

Back 25

The fact that a party was mistaken when an admission was made does not prevent the statement from being introduced, but an admission can always be explained or contradicted to reduce the weight given by the jury.

Front 26

What does silence by a party do?

Back 26

Silence by a party may be an adoptive admission where a statement is made to a party that immediately would be denied if it was not true, but the party remained silent.

Front 27

What happens if a party’s silence is treated as an adoptive admission?

Back 27

If a party's silence is treated as an adoptive admission, both the statement and the fact of the party's silence can be introduced by anyone who heard it.

Front 28

If a party's response could possibly subject her to criminal charges, then what is her silence deemed?

Back 28

Her silence generally is not deemed an admission because it would penalize her for exercising her right to remain silent.

Front 29

Admissions by a partner on partnership matters are considered what?

Back 29

Binding on the partnership and the other partners.

Front 30

Under FRE (but not NY), admissions by agents or employees are what?

Back 30

Admissible as "vicarious admissions" against the employer if the employee's statement concerned a matter within the scope of employment and it was made during the existence of the relationship (i.e. the employee had not retired, been fired, or quit when the admission was made).

Front 31

What is covered under NY’s speaking agent rule in regards to employee admission?

Back 31

Under NY's speaking agent rule such employee admissions generally are not vicariously binding on the employer unless the employee is authorized to speak for the employer. It is not sufficient that the employee was authorized "to act" for the employer because the agent must be authorized to speak.

Front 32

Even if the NY employee's statement is not admissible against the employer as an admission, what should you do?

Back 32

Look to see if it falls within another hearsay exception such as an excited utterance.

Front 33

Out of court statements by CCs which are made during and which are intended to further the objective of the conspiracy are admissible in court against all CCs. What is each member?

Back 33

Each member of the conspiracy is an agent for the other and such admissions are admissible against all CCs. Such out of court statements are not testimonial in nature. Thus, they do not violate the confrontation clause of the other co-conspirators.

Front 34

What must the government do prior to admitting a co-conspirator's admission against the others?

Back 34

The government must prove by a preponderance of the evidence a conspiracy existed and this proof can include the CC's statement, but in NY the CC's statement cannot be used in establishing whether a conspiracy existed.

Front 35

Why do all conspiracies come to an end?

Back 35

All conspiracies come to an end either because the goal of the conspiracy was achieved or it failed. A CC's admission or confession to the police after the conspiracy has come to an end, is admissible only against the out of court declarant even though it implicates the other CCs.

Front 36

What does the Bruton Rule entail?

Back 36

CC#1's confession to the police after the conspiracy has ended, but where the DA jointly tries CC#1 and CC#2, then under the Bruton Rule, CC#2's right to confrontation is violated if CC#1's confession implicating CC#2 is admitted into evidence and CC#1 does not testify even though the jury is constructed to consider the confession against only CC#1. However, if the confession can be redacted to omit any reference to CC#2, then it is admissible, but not by just redacting the name with the word, "deleted".

Front 37

When is the Bruton Rule applied?

Back 37

Bruton is applied even though the confessions of each non-testifying co-conspirator "interlock" with the statements made by the other. For example, S confessed to the police that he and Y robbed the gas station and Y killed the attendant (felony murder). Y also confessed that he and X did the robbery and that he (Y) killed the attendant. If neither testifies at the joint trial, then both can object to the introduction of the other's confession on confrontation clause grounds.

Front 38

What are judicial admissions?

Back 38

These are admissions made in pleadings or in notices to admit, which at the trial cannot be contradicted or explained by the party who made them, but they are binding only in that case.

Front 39

Judicial admissions containing a party’s admission from another case or from a current pleading that was amended are what?

Back 39

They are not deemed binding judicial admissions, but are treated as ordinary admissions, which can be explained or contradicted.

Front 40

Is a guilty plea to a traffic ticket a binding judicial admission?

Back 40

A guilty plea to a traffic ticket is not a binding judicial admission in a subsequent civil case. Thus, although it is admissible as a party's admission, it can be explained.

Front 41

A traffic ticket cannot be the basis of collateral estoppel in NY. How about MBE?

Back 41

No, because FRE mandates that only FELONIES can be the basis of collateral estoppel in a subsequent civil case.

Front 42

What happens to admissions made in offers of compromise to settle a threatened or pending civil lawsuit in order to encourage discussions of settlement?

Back 42

To encourage discussions of settlement of civil lawsuits, all statements, admissions of fault, or offers of compromise made in settlement negotiations of a disputed claim are inadmissible in the subsequent civil or criminal trial. This rule does not preclude evidence derived from settlement discussions from being used against a party.

Front 43

Under the rule of ethics, what shall a lawyer promptly do?

Back 43

A lawyer shall promptly inform a client of any plea offer unless the client authorized the lawyer to accept or reject the plea offer unless the client previously indicated that such an offer be acceptable or unacceptable.

Front 44

If a laywer does not communicate a plea offer to a defendant and the case goes to trial and defendant is convicted and after the confiction, defendant learns of the plea offer, then he can seek to set aside his conviction on 6th Amendment grounds on ineffective counsel by showing what three things?

Back 44

(a) a plea was offered by the prosecutor
(b) that plea offer was not communicated to defendant by defendant’s attorney and
(c) defendant would have accepted the plea.

Front 45

To encourage criminal defendants' participation in plea discussions, what happens to admissions made in plea bargain negotiations?

Back 45

Any admission made in plea bargain negotiations to an attorney for the prosecuting authority (not plea negotiations with the police) are not admissible against the criminal defendant in the prosecutor's direct case or for impeachment. For this rule to apply, the criminal defendant must have been seeking a plea and not just cooperating with government prosecutors.

Front 46

What can a criminal defendant do to his statements if a plea is not reached?

Back 46

A criminal defendant can expressly agree to allow his statements to be used against him at the trial for impeachment purposes if a plea is not reached.

Front 47

If a plea agreement is reached, then the plea of guilty and any admissions made at the plea allocution to the court can be used against the defendant in what three instances?

Back 47

(a) a subsequent civil case (collateral estoppel)
(b) in a criminal prosecution for perjury if the Defendant CRIM K knowingly lied under oath when taking the plea or
(c) where D admitted his guilt and pled guilty to attempted murder, but weeks or months later the victim died, then at D's murder trial, D's admissions can be used against him.

Front 48

What does D’s guilty wave?

Back 48

D's guilty plea waives many of D's constitutional rights. For example, the right to remain silent, the right to confrontation, the right to a jury trial, and the right to have the government prove guilt beyond a reasonable doubt.

Front 49

When is D’s guilty plea valid?

Back 49

D's guilty plea is valid only if done intentionally, voluntarily, and knowingly with a sufficient awareness of the relevant circumstances and the likely consequences where D pleads guilty without having been informed of the elements of the crime, the length of the sentence, or the length of any post-release supervision (e.g. 5 years), then this standard has not been met and the guilty plea can be vacated and D can go to trial.

Front 50

Is it mandatory for a judge to explain the elements of the crime on record?

Back 50

Usually a judge explains the elements of the crime on the record, but this is not mandatory if the record reflects that D's attorney explained them to D.

Front 51

What else may a plea bargain require of D in order to waive the appeal?

Back 51

A plea bargain may also require D to waive the right to appeal, but the court must explain that frequently when the defendant pleads guilty, he retains the right to appeal, but as part of the plea, he is giving up that right. The judge must explain this on the record even though defendant has signed the standard waiver form. The court is required to illicit a clear oral statement from D that he understands he is waiving the right to appeal.

Front 52

Even with a valid appeal waiver, the defendant can still appeal what 3 things?

Back 52

1. the legality, but not the length of D's sentence (e.g. where consecutive terms were imposed, but where concurrent sentences should have been imposed)
2. (NY) the lack of a speedy trial where the DA conditioned the plea on the defendant giving up the right to appeal the speedy trial issue, but NY judges are permitted to negotiate an appeal waiver on the speedy trial issue
3. D's mental competency to take the plea can always be appealed.

Front 53

Are Subsequent Remedial Repairs (SRR) an admission of fault?

Back 53

SRR are not admissions of fault.

Front 54

Evidence of SRR performed AFTER an accident is not admissible to prove negligence or culpable conduct. When a post-accident, repair, or precaution is performed, which if taken earlier would have prevented the plaintiff's injury, that evidence is not admissible in civil cases to prove the defendant's culpable conduct. What is the rationale for this?

Back 54

The rationale for this rule is that a defendant may have exercised all the care that the law required, but after the accident as a measure of extreme caution, D performed additional safeguards, then D should not be penalized for doing so.

Front 55

Example: 1. After a product caused plaintiff’s injury, the manufacturer changed the design in the defective product or 2. After a police officer was accused of using excessive force, he was suspended from the force for 8 months without pay.
Such evidence is admissible when offered to rebut the defendant's answer to the plaintiff's complaint that raised issues of what? (two things)

Back 55

1. ownership or control or
2. the availability of feasibility of precautionary measures. For example, If in the defendant's answer or in the defendant's opening statement to the jury, D asserted exercising reasonable care and that D did as good as possible to prevent the injury (a) in maintaining the real property, (b) in designing the product, or (c) that an additional safety device or design of a product was not economically or technologically feasible. This would open the door for the plaintiff to impeach the defendant's position to show the feasibility of additional reasonable precautions could have been taken and in fact were subsequently taken by the defendant. These subsequent remedial measures would be admissible not to show D was negligent, but to impeach D's position that there were no alternative safety measures that could have been taken to prevent P's injury.

Front 56

If a product's design (a car's dashboard) was modified or a warning was added to the product to make it safer AFTER P'S INJURIES, then can this be introduced as proof?

Back 56

This cannot be introduced as proof that the product was defectively designed or needed a warning.

Front 57

Where do remedial measures fall when a manufacturer has done so after the product was sold but prior to the plaintiff’s injuries?

Back 57

Remedial measures taken by a manufacturer after the product was sold, but prior to the plaintiff's injuries do not fall within this exclusion and these remedial measures are admissible against the manufacturer.

Front 58

What does the hearsay exception of R - Business Records (BR) allow?

Back 58

This hearsay exception allows recorded entries that are regularly and systematically made of business facts, activities, conditions, or events (FACE) to be easily introduced at trial for the purpose of establishing the truth of the facts asserted in the business record (i.e. to prove that the recorded event occurred). The record is admissible if it was made in the regular course of a profit or non-profit business activity and it was the regular course of that business to record such information.

Front 59

When may a BR be introduced?

Back 59

A BR may be introduced without any testimony from the person who actually supplied the information or who actually made the business entry. This is much different from a prior recorded recollection where the entrant must take the stand and testify.

Front 60

What is the rationale for admitting the BR?

Back 60

The rationale for admitting the business record hearsay exception is that records regularly required and systematically entered in conducting a business are highly trustworthy because the entrant has a business obligation to maintain truthful and accurate records for the purpose of conducting that business.

Front 61

Where are BR’s admissible and when is it prepared?

Back 61

BRs are admissible against a criminal defendant since they are not "testimonial" in nature. A business record is not prepared for litigation, but rather it is prepared in the ordinary course of a regularly conducted business. Thus, there is no confrontation clause violation by admitting this hearsay exception.

Front 62

The foundation required for offering a BR requires that someone with personal knowledge of the record keeping procedures must either do what of 2 things?

Back 62

1. take the stand to establish the TRUMP elements (waste of time)
2. simply submit a certificate of authenticity (an affidavit) signed under penalty of perjury establishing the 5 TRUMP elements. CPLR 4518 requires that notice be given at least 30 days prior to trial and the other side can object up to 10 days prior to trial.

Front 63

Explain what the T from TRUMP (conjunctive) means?

Back 63

T - the record must have been timely made "at or near" the time of the matter recorded (to ensure its accuracy). This is much closer in time than a PRR, which only has to be made while the event is fresh in the entrant's memory.
If the business record is computer generated, then someone from the business must show how the data is gathered, how it is entered, stored and retrieved.

Front 64

Explain what the R from TRUMP (conjunctive) means?

Back 64

R - the routine regular repetitive response of that business to make such recordings. Such records are trustworthy primarily because the entries were regularly kept and relied upon in conducting that business.

Front 65

Explain what the U from TRUMP (conjunctive) means?

Back 65

U - the out of court declarant must have been under a business duty to report the information for the record.
If someone outside the business supplied the information, then the record is not admissible unless that statement falls within another hearsay exception, which takes the place of the business duty requirement. (i.e. It requires the TRUMP elements plus a second hearsay exception). For example, the statement was an admission by a party opponent or it was an excited utterance by a declarant who had no duty to supply the information to the business record. Johnson v. Lutz.

Front 66

Explain what the M from TRUMP (conjunctive) means?

Back 66

M - it was the type of entry regularly made in conducting that business (i.e. the information entered must have been needed and relied upon in conducting that business.) If the ordinary person would say, "What is it doing here?", then the statement in the business document probably was not made as part of the regular course of that business.
The double requirement of regularity must exist to establish that the record was regularly made for conducting the business and the entry was the type that was made regularly in that business to ensure its accuracy and trustworthiness.
A hospital record indicating that the patient's accident was the defendant's fault is not admissible as a business record because the regular routine activity of a hospital is to record information necessary for the patient's diagnosis and treatment.

Front 67

Explain what the P from TRUMP (conjunctive) means?

Back 67

P - the person supplying the information must have had personal knowledge of the matter recorded.
A business record that was prepared for litigation usually is not admissible unless the entry was unfavorable to the party who prepared it. Generally, an accident report prepared by a business (by a railroad engineer) is not admissible as a BR even though it was recorded during the course of business because it was not the regular routine practice of that business to record accidents and thus it would not be admissible as a business record. With a TRUMP business record, there is a motive to be accurate. With an accident report there is a motive to misrepresent the facts favorably to the person making the record.

Front 68

Problem: (frequently tested on MBE) 3 hours after an accident, W, an eyewitness or P, the plaintiff gave her version of the accident to C, a police officer. Is W or P's statement in C's police report admissible as a business record?

Back 68

No because TRUMP cannot be satisfied. Even though it is the regular practice of the police to enter accident reports and the report was made by C in the regular course of police business at or about the time of the accident. However, W or P was under no business duty to report this information and their statements do not fall within any other hearsay exception.
If C had witnessed the accident, then the report would be admissible as a business record since all TRUMP elements are satisfied.
If P, in making the report to C made a damaging admission of fault or W's statement was an excited utterance made just after the accident, then the business report would be admissible as "hearsay within hearsay", which is simply a hearsay exception within a hearsay exception even though the declarant was under no business duty to impart the information to C.

Front 69

What happens if the source, method, motive or circumstances of preparing a business record indicate a lack of trustworthiness?

Back 69

Then the court has discretion to exclude it and require testimony in court of that event.

Front 70

Where an entry normally would be found in a business record, or in a public record, if an event had occurred and it was the regular practice of that business to record that event if it had occurred, then the record is admissible to show no entry was made of that event raising an inference that it did not occur. However, what must it show?

Back 70

It must be shown that the records were kept in such a way that the event would have been recorded if it had occurred.
Example: In a medmal case where a nurse allegedly did not administer life saving medication prescribed by P's treating physician, the hospital record is admissible to show that if the nurse had administered the medicine, the entry would have been made.

Front 71

What aspect of hospital records are admissible?

Back 71

The entire hospital record is not necessarily admissible as a business record because not all of the statements by a talkative patient are admissible. Only those entries that are relevant to diagnosis, prognosis or that are otherwise helpful for treating a patient are deemed made in the regular course of the hospital's business. (TRUMP). For example, dates of entry, discharge, day-to-day treatment, symptoms of pain or entries dealing with a patient's physical or mental condition. Statements as to how the injury was inflicted are admissible, but only if relevant to diagnosis or treatment. For example, "P was hit with a fist clenching a metal object."
"The patient said his leg was injured when he was hit by a car" is admissible as useful for his treatment, but his additional statements "that it was a black BMW that had gone through a red light", would be excluded.
Courts are more liberal in admitting statements involving domestic violence and child abuse because knowing the identity of the attacker is relevant for the patient's psychological treatment.

Front 72

Doctor X treated P and wrote in the hospital record that "W, P's wife said that P was on his cell phone and went through a red light." When P sued D, can D introduce this statement as part of the hospital record? No, although it was entered in the regular course of the hospital's business at or about the time of the event. It was not in the regular course of the hospital's business to take down information irrelevant to treatment. If Dr. X could not totally and accurately remember the event, then even if Dr. X could swear that the notes were accurate when made and they were made while fresh in his memory, could that entry be read into evidence as part of the recorded recollection? No because X did not have personal knowledge of the red light. It was based on W's hearsay statement.
If P and not his wife had made the statement to Dr. X and D called Dr. X to testify at the trial, would P's statements to Dr. X be protected by the doctor patient privilege?

Back 72

No,
1. this information was not medically needed to treat P. Thus it fell outside the scope of the doctor patient privilege.
2. P impliedly waived the privilege by putting his physical condition into issue in the litigation.