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Lawyers Manual - Unified Court System

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216 Elizabeth Cronin<br />

Medical Experts<br />

In the prosecution of an assault, the prosecutor must prove physical injury, 63<br />

which means either impairment of physical condition or substantial pain. 64 Even<br />

without a victim to testify, a prosecutor may be able to prove the element of<br />

injury through photographs, the medical records of the victim and an expert to<br />

describe the injuries and give an opinion about what the injuries signify. A<br />

physician can also read the victim’s description of the cause of the injuries from<br />

the medical report if it is established that the history is relevant to the diagnosis<br />

and treatment of her injuries. 65 A medical expert can be called to testify, for<br />

example, about bite marks on the victim66 or to give an opinion that a hair found<br />

in the victim’s teeth was consistent with the defendant’s hair. 67<br />

Some courts have allowed the introduction of medical records, including the<br />

history, under CPLR § 4518(a), which allows business records to be entered into<br />

evidence as proof of an act, transaction, occurrence or event. The hospital record<br />

can be important corroboration of the victim’s testimony that she had to seek<br />

medical treatment. The medical witness can testify as to what the victim stated at<br />

the hospital as long as the statements were relevant to the treatment of the victim.<br />

In People v Swinger, a New York City Criminal <strong>Court</strong> found that statements made<br />

by a domestic violence victim to an emergency room physician were admissible<br />

as a business record. 68 The business record exception to the hearsay rule applies to<br />

criminal cases. 69 Unredacted hospital records that indicate, for example, that the<br />

victim was “hit in the face,” may also be admitted, provided the statement was<br />

germane to the medical diagnosis and treatment. 70<br />

Criminal Contempt and Other Creative Charges<br />

When a victim refuses to cooperate, prosecutors may need to be creative in<br />

considering what charges to bring. Many victims of domestic violence obtain<br />

orders of protection either through the Family or Criminal <strong>Court</strong>s. Violations of<br />

these orders constitute separate crimes. The police may be able to arrest the<br />

batterer for violating the order of protection even if the victim refuses to cooperate.<br />

Witnesses who see the offender where he is not permitted to be or who overhear<br />

when he calls the victim’s job, for example, can be called to testify. Other crimes<br />

that may be considered are stalking, tampering with a witness, 71 resisting arrest, 72<br />

obstructing governmental administration, 73 criminal possession of a weapon, 74<br />

criminal trespass 75 or criminal mischief. 76

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