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socrateaser
socrateaser, Lawyer
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Experience:  Retired (mostly)
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Hi again Socrates, 1) Are the opposing parties records

Resolved Question:

Hi again Socrates,

1) Are the opposing parties' records (such as diaries of events) presentable to the jury as opposing evidence? One guy said No; but please answer only when U can cite.

2) When a doctor certifies his finding of injuries, does he need to add the ritual "under penalty of perjury..." in order to be used as evidence for trial? Or he can simply say "I certify my finding that..." like normally done in the daily course of business. Also please answer only when U can cite.
Many thanks/
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
1) Are the opposing parties' records (such as diaries of events) presentable to the jury as opposing evidence? One guy said No; but please answer only when U can cite.

A: Please clarify. (1) Who is offering the diary into evidence (plaintiff/defendant)? (2) Who made the diary (plaintiff/defendant)?

2) When a doctor certifies his finding of injuries, does he need to add the ritual "under penalty of perjury..." in order to be used as evidence for trial? Or he can simply say "I certify my finding that..." like normally done in the daily course of business. Also please answer only when U can cite.

A: If the doctor is the defendant, and he is offering his own records to support his case at trial, then those records are subject to objection as hearsay, whether or not they are sworn under oath. Evid. Code 1200.

The certfication or declaration under penalty of perjury is irrelevant to the admissibility of the records at trial, because such a declaration is not within the scope of any hearsay exception at trial.

However, the records may be admissible under the business records exception to the hearsay rule. Evid. Code 1271.

At summary judgment, the records must be attached as an exhibit to a declaration which is supported by the familiar, "I declare [certify] under penalty of perjury under the laws of the State of California that the foregoing is true and correct" statement above the declarant's dated signature. CCP 437c(b)(1); CCP 2015.5. However, the records would still be subject to a hearsay objection. The declarant could assert that the records are "past recollection recorded," and then testify in the declaration that though he would be unable to recall the records from memory, that they were made at or near the time when the matters recorded occurred, and so they may be read into the record, even though the records themselves are inadmissible. Evid. Code 1237.

Hope this helps.
Customer: replied 1 year ago.

1) A.1 above: Lk I said: Two opposing parties = plaintiff presents his and defendant his. In this case, the doctors-defendants present their (falsified) chart to the jury.


 


 


Your A2 applies to Q1: U mean E.C. 1200 prohibits the doctors from presenting their charts to the jury? I v just glanced over 1200 but did see in it, can U quote?


 


But what do U mean by "read into the record"?


 


2) Back my Q.2 above:


 


I mean smthng else, e.g.: Defendant beat me up, causing bruises, etc. . Does a doctor's certification of my injuries have to be sworn with that "under oath" ritual in order to be admitted for trial? Or he only needs to sign his statement of finding and that's enough to prove the injuries at trial.


 


3) and how many doctors do I need to certify the injuries?


 


4) do they hv to be "expert" level, or just any doctor can certify?


 


5) Do these doctors have to testify in person or just their paper certification is good enough as evidence? (And of course the defense can subpoena them for cross-examination if in doubt)


 


Many thanks


 


 

Expert:  socrateaser replied 1 year ago.
Okay, thanks. I want you to ignore my previous answer completely. I will start over from scratch. You asked:

1) Are the opposing parties' records (such as diaries of events) presentable to the jury as opposing evidence? One guy said No; but please answer only when U can cite.

A: Ordinarily, a proponent cannot have their own records admitted into evidence. However, because the doctor's records are also business records, they can be admitted into evidence under the business records exception, provided that they are held by the hospital custodian, or the doctor has one of his assistants testify to the routine creation of such records for every patient. Evid. Code 1271.

2) When a doctor certifies his finding of injuries, does he need to add the ritual "under penalty of perjury..." in order to be used as evidence for trial? Or he can simply say "I certify my finding that..." like normally done in the daily course of business. Also please answer only when U can cite.


A: A proponent (whether a doctor or any other witness) only needs to submit records under the business records exception to have them admitted into evidence. Nothing need be sworn or declared under penalty of perjury.

Note: Once again -- please ignore my previous answer, because you will get confused by it -- due to the fact that I did not understand the context when I provided the answer.

The botXXXXX XXXXXne here is that the doctor can get his notes into the court record under the business exception, because the doctor has a business in which such records are routinely created in the ordinary course of business, at or near the time of the act.

Hope this helps.
Customer: replied 1 year ago.

-OK back to square 1: If the doctor-defendant's chart can be permitted, then my counterpart which includes the recorded conversations can also be, woudn't it?



-How about Q 3,4,5?

Expert:  socrateaser replied 1 year ago.
-OK back to square 1: If the doctor-defendant's chart can be permitted, then my counterpart which includes the recorded conversations can also be, wouldn't it?

A: You're not a business, so you can't use the business records exception. You can use the recorded recollection exception, which means that you could play the recordings if you cannot recall what they state. But, first you have to set up the correct procedure. You must testify to the conversation, state that you cannot recall certain details, and then after refreshing yourself by listening to the recordings, you would have to testify that you still cannot recall the conversation sufficient to testify to its content, so you request that the recordings be played into the record. Evid. Code 1237.

3) and how many doctors do I need to certify the injuries?


A: You only need one expert to testify to your injuries.


4) do they hv to be "expert" level, or just any doctor can certify?

 

A: The physician needs to be qualified to perform a forensic examination of your injuries and the procedure and testify concerning the issue. There is no particular "level," but the physician must be qualified to the court's satisfaction.

 

5) Do these doctors have to testify in person or just their paper certification is good enough as evidence? (And of course the defense can subpoena them for cross-examination if in doubt)

A: At summary judgment, the doctors can testify by declaration under penalty of perjury. At trial, the doctors must be present to testify -- unless they were previously deposed, in which case their deposition could be read into the record.

Hope this helps.
Customer: replied 1 year ago.

A5 above: Do U mean if the witnessing doctor refuse to come to court, then their certification of injuries will be worthless bcs they cannot be presented for trial?


 


-If Yes, then deposition with a video recorder would be a good solution, wdn't it? This would be a very brief depo bcs the witness doctor only spend a few minutes to reaffirm his certification, e.g. "Yes I examined him that date and I found such bruises as I stated on that paper" and that's it. Correct? But then only the video (or transcript) of depo will be viewed by the jury and not his certification?


 


 


Again, what is "read into the record".


 


(1) How is it done?


(2) How does it reach the jury?


Many thanks/

Expert:  socrateaser replied 1 year ago.

A5 above: Do U mean if the witnessing doctor refuse to come to court, then their certification of injuries will be worthless bcs they cannot be presented for trial?

 

A: Yes, that's exactly what I mean. At trial, the written declaration of a witness is inadmissible hearsay. In order for a witness' testimony to be admissible, the witness must testify to the facts. The diagnosis of a physical illness or injury requires expert testimony, which must be presented by witness testimony.

 

Note: In California, there is a legal procedure that is in between small claims court and regular ("unlimited") civil court, called a "limited" civil action -- where the amount in controversy is $25,000 or less, exclusive of attorney's fees, interest and costs -- and which does not include certain types of cases (e.g., Family Law; see CCP Sections 85-89). In a limited civil action, the ordinary rules of evidence are reduced, so that witnesses do not have to testify in person -- but only if the procedure in CCP Section 98 is followed.

 

In an "unlimted" civil action, the witnesses must testify in person, or by reading their deposition into the court record -- assuming that they were deposed before a court reporter and the opposing party had an opportunity to cross examine.

 

If Yes, then deposition with a video recorder would be a good solution, wdn't it? This would be a very brief depo bcs the witness doctor only spend a few minutes to reaffirm his certification, e.g. "Yes I examined him that date and I found such bruises as I stated on that paper" and that's it. Correct? But then only the video (or transcript) of depo will be viewed by the jury and not his certification?

A: Yes, you could do this.

Again, what is "read into the record". (1) How is it done? (2) How does it reach the jury?

 

A: The technique is called "recollection refreshed -- past recollection recorded." Evid Code 1237. It requires that the witness made a record of something at or near the time of the event, and that the witness cannot accurately recall the record (e.g., due to its voluminous size, or because of its technical nature). It also requires that the record must have originally been made by the witness. So, for example, if you made a recording of someone else, unless that someone else is a party to the case, you cannot use the recording to substitute for the person's live testimony, unless the person is testifying as a witness and the person cannot recall the contents of the conversation that was recorded.

 

There are a huge number of twists and turns concerning the use of audio and/or video recordings at trial. I would have to write a 10,000 word treatise to cover everything. If you want me to discuss a particular instance, then you will have to disclose the nature of the recording and how you propose to use it at trial, and I can then try to determine how you could get it into evidence.

 

Hope this helps.

Customer: replied 1 year ago.

 

I 'v looked at CCP 98 and it does require the ritual "under penalty of perjury" in the certification of injury for trial.

 

"A party may, in lieu of presenting direct testimony, offer the prepared testimony of revelant witnesses in the form of affidavits or declarations under penalty of perjury."

 

 

 

 

REPEAT: Again, what is "read into the record". (1) How is it done? (2) How does it reach the jury?

 

BACK TO SQUARE 1: Defendants-doctors misrepresented the medical necessity in the surgery and I recorded their BS.

 

 

Expert:  socrateaser replied 1 year ago.

1. When the recording took place, was it just you and the doctor in attendance, or were others present so that they could overhear the conversation (e.g., on speakerphone with others who interacted during the conversation; at a meeting or meal table with others in attendance; in a public place: elevator hallway, sidewalk waiting room, etc.)?


2. Was the doctor aware that the recording was being made, at the beginning of the conversation?


3. Is it the doctor's recorded statements that you wish to introduce at trial?


4. Are you trying to prove that the doctor's statements on the recording are true or false?


5. Are you trying to prove that the doctor made statements that the doctor will or has denied making under oath?

 

Thanks in advance.

Customer: replied 1 year ago.

Socrates, we hv gone thru this already. I dont want U to get bogged down in this grey area of the law. So let's lv thm aside for now.


REPEAT: Again, what is "read into the record". (1) How is it done? (2) How does it reach the jury?


 


Many thanks

Expert:  socrateaser replied 1 year ago.
Okay, but I can practically guarantee that my answer will not work for your facts, which is why I'm asking the questions. Do you still want me to answer the question?
Customer: replied 1 year ago.

Like I said, Defendants-doctors misrepresented the medical necessity and I recorded their BS. Technical grey areas like this recording is tough fr outsider w/out the complete facts, so dont bother.


 


"Read into the record": (1) How is it done? (2) How does it reach the jury? is a nut /bolt Q of general nature which is in yr area of strenghth that I value U for.


 


Many thanks/


 


 

Expert:  socrateaser replied 1 year ago.
Okay, I will stop asking.

In order to admit an audio recording for impeachment purposes (to show that a witness is untruthful in his/her testimony):

1. Itemize date, time, and people present during interview
2. Describe procedure used during taping
3. Describe how tape marked for identification at time made
4. Identify tape in court
5. Identify tape transcription and verify its accuracy
6. Establish unbroken chain of custody
7. Read impeaching material
8. Relate impeaching material to witness's testimony at trial
9. Move to have the tape and transcript received into evidence.

Notes: This is not the previously described "past recollection recorded" foundation -- because that cannot be used to admit evidence of a statement made by someone other than the witness who is testifying that they cannot recall the exact contents of the recording.

Hope this helps.
Customer: replied 1 year ago.


SOURCE?

Expert:  socrateaser replied 1 year ago.
Customer: replied 1 year ago.

How about simply to prove my complaint. wouldn't the process be simpler based on these conceptual pillars:


1) It's the most objective record of events


 


2) The key concept is privacy /confidentiality and the subject of my medical condition belongs to my privacy hence my confidentiality


 


3) Defendants hv voided any claim of confidentiality by disclosing these conversations on court's record


 


4) There is no precedent for prohibition (grey area of law)


 


Many thanks/

Expert:  socrateaser replied 1 year ago.
The California courts and the legislature, beginning in 1850, when the territory became a State of the United States, have created evidence laws to which every lawyer and judge has sworn an oath to uphold -- and to which every layperson is subject, by imposition of law.

You can argue whatever you wish. But, by analogy, if you intend to argue with an umpire for the use of a new type of baseball during the middle of the World Series, you're going to get kicked out of the game!

If you want a particular item of evidence admitted into the court record, then you must follow the requirements of the Evidence Code. Nothing less will do. Admissible evidence must be:

1. Relevant;
2. Authenticated;
3. Nonhearsay;
4. Not subject to a public policy exclusion (e.g., privilege; right of privacy; character; negotiation between parties);
5. Probative value must not be outweighed by a substantial risk of unfair prejudice, waste of time, confusion of issues, misleading the trier-of-fact (judge/jury).

As a practical matter, the only way you will accomplish the above is to avail yourself of a well-respected California evidence treatise, find the type of evidence you wish to have admitted into the record, and then show, step-by-step that the evidence is admissible.

Here are some well-respected evidence treatises:

California evidence / by B.E. Witkin and members of the Witkin Legal Institute.

California evidence benchbook / Bernard S. Jefferson.

California evidentiary foundations / Edward J. Imwinkelried, Thomas J. Leach.

Civil trials and evidence / William E. Wegner, Robert H. Fairbank, Norman L. Epstein ; contributing editor, Eli Chernow.

Effective introduction of evidence in California / authors, William H. Armstrong ... [et al.] ; consultants, Ken M. Kawaichi ... [et al.] ; editor, Anne Harris.

They are all available at the county public law library, or you can purchase them from their respective publishers.

Concerning your proffered argument, while it may have some philosophical merit -- it does not pass the sieve of the five levels of evidence admissibility -- primarily because you are discussing the evidence in the abstract. Each item of evidence must pass through the 5 filters unscathed. Saying that your evidence is objective is irrelevant. Evidence doesn't have to be objective (though it certainly helps give weight to the evidence) -- it must merely be relevant to proving or disproving a matter at issue before the court. Arguing that the evidence is objective will not make it admissible.

Hope this helps.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33850
Experience: Retired (mostly)
socrateaser and 15 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

In standard 4 U gv above


 


Evid Code 996-999 says that Privilege belongs to patient, not doctor; therefore the audiorecordings are fine.


 


Am I right?

Expert:  socrateaser replied 1 year ago.
The audio recordings are not protected by physician-patient privilege, if they are between you and your physician, and concern your medical condition.

Hope this helps.
Customer: replied 1 year ago.

U mean Yes?

Expert:  socrateaser replied 1 year ago.
I mean that the recordings are not subject to physician-patient privilege. I have no opinion on whether or not the recordings are admissible into evidence, because I don't know all of the facts, sufficient to make a decision on the issue.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33850
Experience: Retired (mostly)
socrateaser and 15 other Legal Specialists are ready to help you

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