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Defendant Contends Victim Died of Natural Causes

A New York Criminal Lawyer said in this Criminal case, the charge is manslaughter. The defense is that the blows struck neither caused death nor were a competent producing cause of death. In short, the defendant contends that the victim died of natural causes in a hospital after his admission thereto following the alleged assault.

A New York Criminal attorney said that the defendant has retained as an expert a pathologist. He contends that the pathologist cannot furnish him with expert assistance nor can his Counsel prepare for cross examination on the main issue without certain records.

A New York Criminal Lawyer said the novel feature of this case is that the district attorney, not the patient or the patient’s representative, raises the question of the privileged nature of the hospital records under section 352 of the Civil Practice Act. And, with respect to the autopsy report, the district attorney contends that it is not available to the defendant by virtue of section 879 of the New York City Charter.

A Nassau County Criminal Lawyer said it has been held applicable and liberally applied to criminal cases. Hospital records are admissible in evidence. Similarly the medical examiner’s report may and frequently is received in evidence. Thus even under the strict rule of Lemon, supra, defendant is entitled to pre-trial inspection of these records.

A Suffolk County Criminal Lawyer said the Federal Courts now permit in broadest terms a right of pre-trial discovery and inspection. Federal Rules of criminal Procedure, rules 16, 17(c), 18 U.S.C.A. Many states, including New Jersey, have adopted similar rules. How far other states have gone is evident from an examination of some recent decisions. Discovery and inspection is extended not only to hospital and autopsy reports, but to confessions of the defendant and to statements of other witnesses.

Some states reject the rule that pre-trial discovery and inspection may extend to the defendant’s admissions or confessions or to witnesses statements. This is on the theory, that efforts may be made to pattern a defense or to suborn the witnesses. But very few states now refuse discovery or inspection of physical evidence, public documents or written reports of autopsies, chemical analyses or blood tests. These cannot be altered. There is no purpose served in denying the defendant access to these records unless indeed the People have so great an interest in convicting accused parties as to justify interposing every and any obstacle to the disclosure of facts.

There is a practical aspect to this problem which is certainly worthy of consideration. In the disposition of thousands of cases in this Court, I have never known the district attorney to refuse to open his files to defendant’s counsel long before trial for the purpose of effecting a satisfactory disposition. If a defendant’s admissions and confessions, witnesses statements and documentary records are so frequently voluntarily disclosed what objection in reason can there be to a disclosure by order of a court. In the trial of many hundreds of cases, I have never known one when the People have been or could have been prejudiced by the disclosure of documents or records. On the other hand I have known many where earlier disclosure would have accelerated the trial and a few where such disclsoure would have prevented a failure of justice. The desire that the State’s evidence remain undisclosed until trial partakes of the nature of a game rather than judicial procedure. The state ought to be too jealous of according a defendant a fair and impartial trial to hinder him in intelligently preparing his defense. The dogma that the people’s case must at all cost remain secret has been oversold, and contra, its potential for good, underestimated.

The Court has held that where a physician testified before a Grand Jury concerning information received from his patient defendant, the indictment will be dismissed. This, even in the absence of an assertion of privilege. This is on the theory that the Grand Jury can receive none but legal evidence.

When hospital authorities were called upon by a Grand Jury to produce records of all abortions performed in the hospital, held, that they may assert the privilege and the subpoena will be quashed.

The great weight of authority in other jurisdictions which recognize the privilege in criminal cases is that the defendant cannot invoke the privilege of his victim whether the victim is alive or dead. Most of the states hold that even where the victim is a coconspirator, as in abortion or manslaughter by abortion, the defendant cannot invoke the victims privilege. The foregoing rule was held applicable even where the patient claimed the privilege on defendant’s behalf.

To sum up, the law is that neither the People or the defendant in a criminal case may invoke the victim-patient’s privilege. If the patient claims the privilege, it is discretionary with the Court to sustain or disallow the claim. If the disclosures incriminate the defendant, the Court must balance the patient’s privilege against the public interest in law enforcement. An adverse ruling to the patient’s claim is not error. The patient not the defendant is prejudiced thereby. On the other hand, if the disclosure disproves the guilt of the defendant, the patient’s claim should ordinarily be overruled. Disallowing the disclosure may constitute reversible error.

Autopsy reports where no evidence of criminality is indicated are public records available to all. Where criminality is indicated, such reports are not available to the public but are available to any defendant by order of a Court. C.C.P. § 778-a. The charter provision (sec. 879) is not inconsistent with the Criminal Code provision. C.C.P. § 778-a. The 1936 charter specifically provides that all general laws applicable to the City of New York are not repealed or superseded unless the charter provision is inconsistent with said general law.

Our New York Criminal lawyers here in Stephen Bilkis and Associates are always here to hear your predicaments and give you an advice. We also have New York Drug Crime attorneys, who will file a case against the arresting officer if there was an irregularity in the arrest.

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