Evidence Practical Project Fall 2017

LAW 6330 (4 credits)
Section 02BB
Professor Pedro A. Malavet
Fall 2017

Instructions

As I announced in my Syllabus, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between A and LIE will write for the defendant, Dee Ward, and those whose last names fall between LIV and Y will write for the prosecution, the State of Indiana.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2017 Evidence Course. Note, however, that I include a discussion of the specific U.S. Indiana caselaw in the patter below. Your motion must adequately represent the interests of the party you represent, be it the defendant or the People of the State of Indiana, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual 2015 is the current one (click here for PDF); there is a supplement (click here to for PDF).

DUE DATE: Projects are due on or before 5:00 p.m. on THURSDAY, November 2, 2017. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.

The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.

• Frequently Asked Questions
  • Is there a maximum length to the project?
    • No.You may write as much as wish.
  • Is there a minimum length?
  • There is certainly a minimal level of effort required to pass. But, at least five (5) to ten (10) pages, double-spaced, is about what it should take to do minimal justice to the project.
  • May and should I use headings and subheadings?
  • Yes. Preferably the ones I post on the board every day.
  • What title should I use?
  • Motion in Limine To:
    • Admit [certain evidence], if you are the prosecution
    • Exclude [certain evidence], if you are the defense

Fact-Pattern:

Ward v. State

Supreme Court of Indiana
[Brackets or ellipses in boldface are mine,
those in normal type are original to the opinions.]

Dee Ward is charged with battering J.M., his girlfriend.

Facts and Procedural History

As of April 2013, Ward and J.M. had been dating and living together off and on for about two years and had a child together. During that time, J.M. also sometimes lived with her mother and step-father. Ward visited the parents’ home often, and they were familiar with his truck.

On the afternoon of April 10, 2013, J.M.’s step-father saw Ward’s pick-up truck pull in front of his house. J.M. got out from the passenger side walking “very gingerly,” Tr. 144, and then the truck sped away. J.M. was hanging her head and crying as she came into the house. When her step-father asked what was wrong, J.M. responded, “I’m hurt” and “Where’s mom?” Tr. 147. J.M. pulled down her pants to show her mother her buttocks and legs which revealed welts and bruising. Mother escorted J.M. to her bedroom and—over J.M.’s protests—told her step-father to call 911.

At about 2:24 p.m., paramedic Linda Hodge-McKinney (“the Paramedic”) received an “[a]ssault trauma” dispatch and arrived at the scene about three minutes later. Tr. 195. The Paramedic found J.M. lying on a bed in a fetal position crying, with extensive bruising on her body. When the Paramedic asked J.M. to rate her pain “[o]n a scale of one to ten, with . . . ten being the most amount of pain you’ve ever been in,” J.M. rated her pain a ten. Tr. 205-06. A police officer who arrived shortly after the paramedics also observed “[m]assive bruising, basically all over her body especially her legs and buttocks, welts, dark blue and black bruises. Pretty severe.” Tr. 161.

Concerned that J.M. may have suffered internal injuries, the Paramedic transported J.M. to a local hospital, administering intravenous pain medication along the way. Tr. 243. At the emergency room, forensic nurse Julie Morrison (“the Forensic Nurse”) treated J.M., observing that she was “obviously in a lot of discomfort” and “rolled up in a ball . . . in a near fetal position on one side, all hunched over, sort of in a protective sort of stance.” Tr. 242-43. When the Forensic Nurse asked what happened, J.M. stated that she had been “struck repeatedly with a belt,” Tr. 244, and that “it was her boyfriend Dee Ward” who beat her, Tr. 266. Meanwhile, the Forensic Nurse oversaw J.M.’s safety and discharge planning, classifying J.M. as a “no information patient” to prevent people (specifically the attacker) from learning her whereabouts. Tr. 290-91. Further examination and testing ruled out internal injuries, and J.M. was discharged to her parents’ home later that evening with referrals to two domestic-violence support organizations, a recommendation for counseling, a prescription for pain medication, and instructions for minimizing the swelling. Tr. 56-58; State’s Ex. 14, Ex. Confidential Vol. at 100-01.

The State initially charged Ward with B-felony criminal confinement, C-felony battery, C-felony intimidation, and A-misdemeanor battery and domestic battery. It later amended the charging information to include a second count of C-felony battery.

Ward filed a motion to exclude J.M.’s testimony, after she twice failed to appear for scheduled depositions. The State responded that J.M. did not have notice of the scheduled depositions because she had been reported missing shortly after the assault and was classified as a missing person. The trial court denied Ward’s motion. Over a month later, noting that J.M. was still a missing person and efforts by law enforcement to locate her had been unsuccessful, the State provided notice of intent to introduce J.M.’s statement identifying Ward as her attacker through the testimony and records of the Forensic Nurse.

[The trial court held a pretrial hearing on this motion and your motions in limine are your final arguments to the court on the matter before the trial judge makes her ruling. The evidence and testimony noted below was presented at that hearing.]

[You are instructed for motion purposes that at trial Ward will not challenge the testimony regarding what witnesses saw or heard regarding the nature of J.M.’s injuries, nor will he challenge the medical testimony regarding the nature of those injuries or the manner in which they occurred; he will take a similar approach to the related exhibits. His defense theory is that he had not caused J.M.’s injuries and that the only evidence identifying him as the perpetrator that would be offered by the state is inadmissible testimonial hearsay. In support of this defense, Ward will present at trial alibi witnesses placing him away from his home on April 9, 10 and 11 of 2013 (they testified he was on a hunting trip with them). These witnesses will also testify that persons other than Ward could access the keys to his truck and use it while he was away. Ward did not testify at the hearing and is not expected to testify at trial.]

[The Evidence and Testimony Relevant to the Forensic Nurse Presented at the Pretrial Hearing]

[T]he Forensic Nurse was serving in a dual capacity: obtaining information necessary for appropriate medical diagnosis and treatment as well as gathering evidence for use in a criminal prosecution. On this latter point, the record shows that upon referral to the Forensic Nurse, J.M. was presented with a “General Information” sheet. Page one contained the following “patient consent” section:

• I hereby consent to a physical examination by a specially trained Forensic Nurse Examiner to discover and preserve evidence of the assault.

• I understand that the report of the examination and any evidence or specimens collected will be released to law enforcement authorities. I also understand that I may withdraw my consent at any time for any portion of the examination.

• I understand that collection of evidence may include photographing and sketching of injuries. Knowing this, I consent to having photographs taken for use as evidence. I do consent to the use of these photographs for educational purposes.

State’s Ex. 14, Ex. Confidential Vol. at 96 …. J.M. affixed her initials next to each paragraph and then signed the form. Also included on the first page were the Forensic Nurse’s signature and a social worker’s name. The page also included a space for information from “Law Enforcement” including spaces for the responding officer’s name, detective’s name, agency, case number, and phone number. Id. The case number was filled in, with a note that reads “police report made at [patient’s] mother’s home.” Id. Page two included blanks for the Forensic Nurse to fill in, describing ‘[l]ocation and physical surroundings of assault” and the alleged assailant(s) name(s), age, gender, ethnicity, and relationship to the patient. Id. at 97. Pages three and four included body maps, with the Forensic Nurse’s notes to indicate what type of injury was present, how the injuries were inflicted, and the identity of the assailant. Id. at 98-99.

With respect to the Forensic Nurse’s capacity as a medical caregiver the following exchange occurred:

• Q. [Deputy Prosecutor:] Now what do you tell a patient about the purpose of your examination of them, when you’re doing this examination?

• A. [Forensic Nurse:] Uh, I would introduce myself, tell them my role, tell them that I work in conjunction with their physician as a specially trained nurse to help evaluate any type of injuries that they might have based on the mechanism. And, again, working in conjunction with a physician, looking for injuries, first and foremost. At that point in time, after all the diagnostics are done, if they want lab tests, x-rays, then they are given the opportunity, if they so desire, to have forensic documentation done of their injuries as well. That is secondary though.

• Q. [Deputy Prosecutor:] Now can you explain the basis [sic] steps in your examination?

• A. [Forensic Nurse:] No matter what type of patient it is, any type of an assault patient or victim of violence we always do the same thing so I don’t miss anything. After getting their medical history, medications, speaking with them, asking where their discomfort is, how it happened, I would go from head to toe, and then from outer extremities then into the core of their body. But, again, it would only be done after we know their vital signs are okay, their respiration are [sic] okay, and whatnot.
  * * *

• Q. [Deputy Prosecutor:] And is it important to determine who caused the injury for you[r] assessment?

• A. [Forensic Nurse:] Yes.

• Q. [Deputy Prosecutor:] And why is that?

• A. [Forensic Nurse:] Especially, again, victims of any type of violence, it would be really important to know if they knew who the perpetrator was. Because a large part of the forensic nurse[’]s job is to collaborate with social work and the patient in order to ensure safety plan for that person if they are well enough to be discharged.
  * * *

• Q. [Deputy Prosecutor:] And what difference does it make in knowing the identity of the person who caused the injuries?

• A. [Forensic Nurse:] Your resources and safety plan would be a lot different, for instance, if you are attacked by a stranger, an unknown person in a parking garage, let’s say, downtown, versus somebody who might be a family member or someone you are living with. If there is a common child, if you share a child, because there might be visitation, custody issues. So it’s critically important that you know if you can find out who that person is.

• Q. [Deputy Prosecutor:] And you consider that part of your role, not just the social workers?

• A. [Forensic Nurse:] Uh, safety plans for a patient of violence are a critical part of my role. Again, it’s first a medical evaluation to make sure the patient is stabilized, to make sure no injuries are missed. And then safety plan resources discharge where they're going to go, do they have a safe place. Those are all critically important also for the forensic nurse.

Tr. at 232-33, 234-35 ….

Concerning the safety plan the following exchange occurred:

• Q. [Deputy Prosecutor:] And what discharge plan was developed for [J.M.]?

• A. [Forensic Nurse:] Mainly we just. . . We needed to make sure that she had a safe place to go. And I don't know how much I’m able to talk about this based upon. . .

• Q. [Deputy Prosecutor:] Well, did you. . . So that was a concern to you?

• A. [Forensic Nurse:] Oh, yeah.

• Q. [Deputy Prosecutor:] Okay. And did you develop a discharge plan that attempted to ensure safety?
  A. [Forensic Nurse:] Yes.
  Q. [Deputy Prosecutor:] Also when she was in the hospital was she put on a certain, a specific status, based upon the history you’d been given?

• A. [Forensic Nurse:] Yes. For. . .

• Q. [Deputy Prosecutor:] What was that?

• A. [Forensic Nurse:] . . .patients in her situation. And we also obtain permission from the patient before this is done. But patients like [J.M.] are made a no information patient in case someone who might have been the person who injured my patient would call the hospital looking for them, then we would have permission to say they were not there.

• Q. [Deputy Prosecutor:] Okay. So she was put on that status of a no. . .

• A. [Forensic Nurse:] No information patient.

Tr. at 290-91 (ellipses in original).

[The applicable exception: FRE 803(4)]

[… The state argued at the hearing that] J.M.’s statements to the Forensic Nurse identifying Ward as her attacker [could] properly [be] admitted under Evidence Rule 803(4). …[This begs the question of whether or not] valid “medical purposes” [are limited] to treatment of only physical injuries, .... [but] the standard of care [also] required the Forensic Nurse to take reasonable measures to address J.M.’s risk.

Perry specifically recognized that “in cases involving child abuse, sexual assault, and/or domestic violence,” the assailant’s identity is “pertinent to the diagnosis and treatment of . . . physical injuries[,] [a]nd . . . psychological counseling for domestic abuse, and significant to medical personnel in deciding how to discharge their patient.” Id. at 49-50 (emphases added) [referring to Perry v. State, 956 N.E.2d 41, 53-56 (Ind. Ct. App. 2011)].

Courts from Indiana and other jurisdictions have held that patient identification statements to medical service providers serve the purpose of medical treatment including psychological counseling, in- or out-patient referrals, follow-up plans, safety plans, and discharge plans for victims of domestic violence or other violent crimes. See, e.g., McClain v. State, 675 N.E.2d 329, 330-31 (Ind. 1996) (stating child molestation victim’s identification statements made to therapist served the purpose of psychotherapy); Nash, 754 N.E.2d at 1024-25 (finding rape victim’s identification statements to ER nurse serve purpose of medical treatment because treatment includes that of emotional/psychological injuries and safe discharge); United States v. Joe, 8 F.3d 1488, 1493-94 (10th Cir. 1993) (stating rape victim’s identification statements to doctor served medical treatment because “effectiveness of the treatment received will depend upon the accuracy of the information provided to the physician,” and treatment addresses psychological/emotional injuries with appropriate counseling, safe discharge, and after-care); U.S. v. Balfany, 965 F.2d 575, 579-80 (8th Cir. 1992) (declaring child sexual abuse victim’s identification of attacker is important for medical treatment because identity affects the type of counseling provided during and after hospital stay); Palilonis v. State, 970 N.E.2d 713, 727 (Ind. Ct. App. 2012), trans. denied (finding rape/sexual assault victim’s general identification statements to nurse are for purpose of medical treatment because treatment includes psychological counseling and proper discharge).

Doctors and nurses in various clinical settings —including emergency room, primary care, surgery, and mental health facilities— are instructed they “must be prepared to engage patients around the issue of I[ntimate] P[artner] V[iolence] and provide assessment and referral.” Nancy Sugg, MD, MPH, Intimate Partner Violence: Prevalence, Health Consequences, and Intervention, 99 Med. Clin. N. Am. 629, 640 (2015) (emphasis added). Specifically, experts urge doctors and nurses to acknowledge the violence, assess patient safety, refer the victim for additional treatment or services, and document the injuries and the abuser. Id. at 641-44 (emphasis added). Indeed, a “forensic nurse is a nurse who provides specialized care for patients who are victims and/or perpetrators of trauma (both intentional and unintentional). Forensic nurses are nurses first and foremost,” even though they are also specially trained in injury identification, evaluation, and documentation. Int’l Ass’n of Forensic Nurses, (available at http://www.forensicnurses.org/?page=whatisfn ) (last visited February 19, 2016).

This comprehensive process of treatment for domestic-violence victims is not just for emergency rooms or forensic nurses —it is also part of the standard of care for surgeons, primary-care providers, pediatricians, and OB-GYNs. See American College of Surgeons, Statement on Intimate Partner Violence (2014) (stating it is the treating surgeon’s responsibility to care for the immediate injury and reassure the patient, but also to identify resources in his or her hospital and to help identify resources in the community); Megan H. Bair-Merritt, MD, MSCE, et. al., Primary Care-Based Interventions for Intimate Partner Violence: A Systematic Review, 46(2) Am. J. Prev. Med. 188, 192 (2014) (defining role of primary care providers as “identifying and responding to IPV”); Jonathan D. Thackeray, MD, Roberta Hibbard, MD, and M. Denise Dowd, MD, MPH, Clinical Report—Intimate Partner Violence: The Role of the Pediatrician, 125 Pediatrics 1094, 1096-98 (2010) (instructing pediatricians that intimate partner violence between parents affects children and to address it with assessments, referrals for counseling, and safety plans); Committee on Health Care for Underserved Women, The American College of Obstetricians and Gynecologists, Intimate Partner Violence, Committee Opinion Number 518, 119 Obstetrics and Gynecology 412, 415 (2012) (instructing that “[i]f the clinician ascertains that a patient is involved in a violent relationship, he or she should acknowledge the trauma and assess the immediate safety of the patient and her children while assisting the patient in the development of a safety plan” and that “[p]atients should be offered information that includes community resources (mental health services, crisis hotlines, rape relief centers, shelters, legal aid, and police contact information) and appropriate referrals”).

[Those of you who are writing for the defense should not give up on any Rules argument, including this one. But the discussion above illustrates how the matter is approached under the rules, not under the Sixth Amendment Confrontation Clause, as we will dicuss in class.]

• Facts taken and modified for exam and project purposes from: Ward v. State, 50 N.E.3d 752, 2016 Ind. LEXIS 124 (Indiana Supreme Court 2016).