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PostPosted: Tue Oct 23, 2001 3:35 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
A new defense for persons charged with Driving Under the Influence (alcohol, drugs, etc.) was allowed in a Massachusetts Appeals Court decision concluding that the letter of a physician can be admitted into evidence.

It had long been thought that “hearsay exception rules statutes” were not available in criminal trials. Many of you are aware of the fact that letters are normally excluded in trials as is the testimony of a person by a third person ( you know, the witness says “Joe told me…..”)
The reason is the constitutional right to cross examine any witness. However there are many exceptions to this rule, and this could be the subject matter of a seminar or course.

The importance of this decision to persons with certain disabilities is astounding.

The importance can be realized when the police officer conducts a field sobriety test.

Police routinely conduct field sobriety tests to persons suspected of driving under the influence, and there are four parts to a complete test, such as standing on one leg, walking in a straight line, reciting the alphabet and counting backward, a gaze test in which the officer asks the person to follow a pen or flashlight as the officer moves it from side to side.

I recently reported in this forum a defense to the latter test when a Court decision stated that expert testimony was required for this complex test.

What is important is the fact that many persons have balance problems, visual problems, hearing deficiencies, and other impairments which cause the results of the field sobriety test to be flawed.

The reason that this decision has a powerful impact on persons seeking medical defense is that
the cost of having a physician come to court and testify is profound. I have seen cases in my
office where the expert physician commands a fee of $2,500.00 per day whether he testifies or
not.
Having this in mind here is a synopsis of the case:

On May 26, 1997, a Cohasset police officer stopped a driver for operating his vehicle erratically .

The PO alleged that the driver smelled of alcohol and had glassy, red and bloodshot eyes. The
driver admitted to having a couple of beers and was asked to perform three field sobriety tests.
The driver said he had difficulty with the one-legged stand and the walk and turn tests because
of 13 ear operations that affected his equilibrium while moving, but the officer determined the
driver was operating under the influence.

At trial, four witnesses testified that they were with him that evening and did not observe any
intoxication.

The defendant’s medical records documenting his ear surgeries were admitted into evidence,
but a letter from his physician was excluded. The letter unlike the medical records, explained
that the defendant, “has degeneration of the balance system…[ and] a chronic imbalance for
which he as learned many compensatory techniques.” The defendant was found guilty.

The Appeals Court judge acknowledged that Mass General Laws Chapter 233, section 79G
applied only to actions sounding in tort or contract, prior to a 1988 amendment that
applied the statute to any proceeding in any court.

While this does create a very important admissibility tool for the defense attorney in this type
case, there are requirements of the preparation of the document such as having it signed under
the penalties of perjury, and other requirements for document admission which are statutory.

The case reported was a nine page decision and is “Commonwealth v. Schutte” and was reported in October 22, 2001 issue of the Lawyers Weekly.

I know many people who have ear or eye related balance problems and have seen many cases where the cost of defense excluded a proper presentation.

This case admitted a physician's statement that the patient not only had a condition which would explain the failure to make precise instructed moves, but also stated that the patient had learned to compensate.

I think that this decision may also open the door to MA sensei. Many of you already specialize in such problems and I can hear many of our UECHI people uttering that Sanchin teaches such things in the beginning.

Alan K


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