BAEC Bulletin | November/December 2021 | 27
testimony based on new or novel scientific principles or theories.
the expert on cross examination, the introduction of such evidence on direct examination constitutes IMPERMISSIBLE HEARSAY. (Citing Lipschitz v Stein, 10 AD3d 634 [2d Dep’t 2004]). Moreover, even though the plaintiff’s questioning of the defendant as an adverse party on direct examination had every appearance of cross examination, the defendant never recognized the publication, whatever it was, as an authority. Consequently, it was improper to allow it. (The Court nevertheless considered the error harmless). On The Criminal Side In People v Feldman, 299 NY 153 (1946), the defendant, a licensed pharmacist, was tried upon an indictment charging him with murdering his pregnant wife by providing her with strychnine, a plant-based pesticide that he allegedly included in one or more bottles of medicine (calcium chloride with lactate of pepsin) that he had prepared for treatment of a serious calcium deficiency that had caused her to experience convulsions requiring hospitalization. The indictment accused the defendant of intentionally causing his wife’s death by engaging in conduct that encompassed December 7th (when his wife first took ill at home), December 8th (when she convulsed at the hospital but then began to improve) and the early morning hours of December 9th 1943 after she was given medication from a second of six bottles that the defendant had delivered to the nurses in charge of his wife’s care. (Why the prescriptions were not filled by the hospital pharmacist is not clear). The People’s case was ENTIRELY CIRCUMSTANTIAL and turned almost completely on the testimony of a toxicologist who detected strychnine in the victim’s internal organs post autopsy. No one ever saw the defendant in possession of strychnine, he made no admissions and there was no evidence of motive. The People’s Peculiar Position At Trial The prosecutor advised the court in limine that the People would make no claim that the defendant administered strychnine to his wife at home on December 7th (even though experts on both sides agreed that she received a dose of it that night), but that the fatal dose was administered on the morning of December 9th (by a nurse) from one of the bottles provided by the defendant. (Remarkably, all the bottles were thrown out). Defense experts opined that the victim suffered a gradual death from the dose administered on the 7th and the People’s experts concluded that the deadly dose was delivered on the 9th. Since the People made no claim against the defendant for the earlier date, a finding that death resulted from the 12/7 dose would necessarily require an acquittal. Despite the People’s representation outside the jury’s presence, the prosecutor read the indictment to the jury during opening statement and referenced all three dates, implying that the defendant’s alleged guilt encompassed all of them. Motions and Jury Charge During the motion for a trial order of dismissal, defense counsel asked the court to instruct the jury that they could not consider the events of December 7th or 8th as evidence of guilt. Though the trial court instructed the jury that to find guilt, they must conclude that the fatal dose was given on December 9th, the court re-read the indictment, thereby reinforcing the accusation of criminality encompassing all three dates. The Court of
In addition to noting other states’ adoption of the Federal Rule (e.g., Jacober v St. Peter’s Medical Center, 608 A.2d 304, 311 (NJ 1992), Hutter points to the view of John Henry Wigmore that rules favoring the admissibility of learned treatises generally improve the quality of information presented to juries because they are written for professionals in the particular field and are subject to peer review. The authors also understand that their reputations are on the line, and they have no particular stake in the case on trial. (6 Wigmore, Evidence, Section 1690-162-2 [Cherbourne Rev. 1976]). Hutter also argues that experts should be allowed on direct examination to refer to learned treatises without having to go through the “professional reliability dance,” and if the trustworthiness of a particular treatise is in question, the judge can exercise discretion in deciding whether to permit its use on direct or cross examination. A Contrary View Thomas A. Moore Esq., a senior partner at the New York City law firm of Kramer, Dilloff, Livingston and Moore and Matthew Gaier Esq., a partner in the same firm disagreed with Hutter’s recommendation to abrogate the New York rule. In a recent New York Law Journal article entitled “Evidentiary Use of Learned Treatises,” (www.law.com/ newyorklawjournal/2021/08/02), they argued that admitting scientific treatises into evidence for their truth would permit the introduction of hearsay from outside experts whose findings and conclusions cannot be challenged on cross examination. They also note that studies contained in treatises may have minimal application because their conclusions may not account for the facts of the case being tried. Moreover, reading from treatises of general applicability may give an expert witness more credibility than he/she deserves, and it is not uncommon, in their view, for medical journals and other publications to be drafted with language that gives defendant doctors too much cover in medical malpractice cases. These authors also expressed concern that if the Federal Rule were adopted in New York, there would be no limit to the types of publications that would pass for learned treatises such that the exception would ultimately devour the rule against hearsay. They also argued that the New York rule has not been as stagnant as critics suggest, noting that courts have taken a more flexible approach that favors practical evidentiary considerations over strict adherence to ritualistic linguistic constructions, thus permitting use of a treatise that the expert described as representing a “standard of care” to which he aspired instead of “authoritative” (Wolf v Persaud, 130 AD3d 1523 [4th Dep’t 2015]), or “reliable,” (Kearns v Papish, 136 AD3d 690 [2nd Dep’t 2016]), or one that has value and significance. The authors cited Winiarski v Harris, 78 AD3d 1556 (4th Dep’t 2010) where the FOURTH DEPARTMENT deemed it ERROR to permit plaintiff’s counsel in this surgical malpractice case to impeach the defendant doctor by reading a passage from an unidentified medical treatise during the plaintiff’s examination of the defendant. Noting that while opinions contained in a publication that the expert witness considers authoritative may be used to IMPEACH
Powered by FlippingBook