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Defendant as a Defense to Domestic Violence Charges

Three children were rescued by the ACS and the NYPD from their home. The two boys were aged 6 and 8 and the girl was aged 7. They were siblings. At the time that they were taken into custody, the children were all unbathed. Their hair was matted. The clothes they wore were torn and dirty. All over their arms and backs the children were bruised and scarred. The girl complained that she hurt in her vaginal area.

A New York Sex Crimes Lawyer said the mother and her three children were all brought to the emergency room. A pediatrician specially trained in treating children who are physically and sexually abused was called to see the children and recommend treatment if necessary.

During the diagnosis and treatment at the emergency room, the pediatrician began taking pictures of each child. He began with documenting the injuries of each child beginning with the head down to the feet. The doctor asked the child what the mark or bruise was. He then asked how the mark of bruise was sustained and who inflicted the bruise or mark. The doctor made copious notes documenting each wound, each bruise, each scar and all injuries.

The father was accused and charged with domestic violence and assault of his three children and sexual abuse of his daughter. A New York Sex Crimes Lawyer said that at the arraignment, the father sought the dismissal of all the charges of domestic violence, assault and sexual abuse against him on the ground that the charges were based on hearsay testimony.

At the hearing, the responding police officer, the mother of the children and the pediatrician who attended the children at the emergency room were all called to testify.

The pediatrician brought a life-sized picture of a female child form and two life-sized pictures of two male children. On the side of the pictures, he wrote down the descriptions of each injury sustained by each child. Along with these diagrams, the pediatrician also testified as to the handwritten notes he made on the hospital admission and diagnosis form. There he noted that the children named their father as the person who inflicted these injuries. These medical records are the basis for the indictment and information filed against the father charging him with assault and with sexual assault. A Nasau Criminal Lawyer said these are the same records sought to be expunged as inadmissible by the defendant father as being hearsay.

The only issue before the Court is whether or not the medical records of the children are inadmissible for violating the hearsay rule. The Court ruled that the medical records are not hearsay. The medical records are admissible as business records.

A Queens Criminal Lawyer said the Court ruled that business records are an exception to the hearsay rule. Business records are entries in forms systematically made for the conduct of business. They are trustworthy because they are routine reflections of day-to-day operations of the business. The person who made the entries are truthful and accurate because the purpose of the record is for the conduct of the business enterprise. Hospital records kept by the hospital are considered as business records especially when the records are created, entered and maintained in the course of diagnosing and treating patients. A person who sees a doctor is generally thought to speak truthfully of his pain and suffering.

The defendant father contends that when the pediatrician asked the children the identity of the person who inflicted the injuries, the question was no longer germane to the treatment of the patients and should thus be inadmissible as being hearsay.

The Court ruled that the identity of the assailant of these three children is relevant in a domestic violence case where the patient is a child who needs to be protected from further harm. If the child’s assailant is a person who has a close relationship of trust with the child and who lives with the child, the treatment of the child will involve his removal from the home.

A child who is a victim of assault or rape consequent to a domestic violence incident has to be treated physically and psychologically as well. Part of the treatment of the child is to remove him from under the influence and control of the person who inflicted the injuries on him. Thus, the identity of the assailant is relevant to the diagnosis and treatment of the child.

The medical records including the information about the identity of the children’s assailant are all admissible in evidence.

A NY Domestic Violence attorney can help gather facts and present these facts before the court. An experienced lawyer can also argue for the admission of these same facts into evidence. The legal team at Stephen Bilkis and Associates are willing to assist you and stand by you in court to see that the person who perpetrated acts of domestic violence against you are brought to justice. Confer with any of the New York City Domestic Violence attorneys at Stephen Bilkis and Associates today at any of their offices located conveniently around the New York area.

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