Lawyers Manual - Unified Court System

216 Elizabeth Cronin
Medical Experts
In the prosecution of an assault, the prosecutor must prove physical injury, 63
which means either impairment of physical condition or substantial pain. 64 Even
without a victim to testify, a prosecutor may be able to prove the element of
injury through photographs, the medical records of the victim and an expert to
describe the injuries and give an opinion about what the injuries signify. A
physician can also read the victim’s description of the cause of the injuries from
the medical report if it is established that the history is relevant to the diagnosis
and treatment of her injuries. 65 A medical expert can be called to testify, for
example, about bite marks on the victim66 or to give an opinion that a hair found
in the victim’s teeth was consistent with the defendant’s hair. 67
Some courts have allowed the introduction of medical records, including the
history, under CPLR § 4518(a), which allows business records to be entered into
evidence as proof of an act, transaction, occurrence or event. The hospital record
can be important corroboration of the victim’s testimony that she had to seek
medical treatment. The medical witness can testify as to what the victim stated at
the hospital as long as the statements were relevant to the treatment of the victim.
In People v Swinger, a New York City Criminal Court found that statements made
by a domestic violence victim to an emergency room physician were admissible
as a business record. 68 The business record exception to the hearsay rule applies to
criminal cases. 69 Unredacted hospital records that indicate, for example, that the
victim was “hit in the face,” may also be admitted, provided the statement was
germane to the medical diagnosis and treatment. 70
Criminal Contempt and Other Creative Charges
When a victim refuses to cooperate, prosecutors may need to be creative in
considering what charges to bring. Many victims of domestic violence obtain
orders of protection either through the Family or Criminal Courts. Violations of
these orders constitute separate crimes. The police may be able to arrest the
batterer for violating the order of protection even if the victim refuses to cooperate.
Witnesses who see the offender where he is not permitted to be or who overhear
when he calls the victim’s job, for example, can be called to testify. Other crimes
that may be considered are stalking, tampering with a witness, 71 resisting arrest, 72
obstructing governmental administration, 73 criminal possession of a weapon, 74
criminal trespass 75 or criminal mischief. 76