Gregory Chandler on Physician-Patient Privilege

Most attorneys know that that their is a physician-patient privilege. However, many attorneys do not understand the limitations on the physician-patient privilege. An interesting case is United States v. Bek, 493 F.3d 790 (7th Cir. 2007).

The Court affirmed a conviction for prescribing drugs without a proper medical purpose, the Court rejected a defense argument that patient records had been erroneously admitted in violation of the physician-patient privilege. The controlling law in this federal prosecution was federal common law, which provides no physician-patient privilege. The Court declined to adopt a physician-patient privilege in light of the Supreme Court's decision in Jaffee v. Redmond, finding "no circuit authority in support of a physician-patient privilege even after Jaffee"

and seeing no reason to create such a privilege.

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER ON CROSS-EXAMINATION HYPOTHETICALS

In cross-examinations, hypotheticals are sometimes used. In United States v. Kellogg, 510 F. 3d 188 (3d Cir. 2007) the Court affirmed a mail fraud conviction against the owner of an environmental laboratory who had been charged with falsely certifying that certain tests had been conducted. The Court found no abuse of discretion when a defense character witness was asked whether his opinion that the defendant was a

law-abiding citizen would be different if the witness knew that lab reports misstated the analytical tests used. The Court noted that a guilt-assuming hypothetical is irrelevant in testing a character witness' reputation testimony, but for opinion testimony "[s]uch evidence may aid in the jury's ultimate credibility determinations and in deciding how much weight to give to a defendant's character evidence."

While such a question "may prove problematic if it arises in circumstances that implicate the presumption of innocence or otherwise undermine due process,...there is nothing inherent in guilt-assuming hypotheticals, in the abstract, that makes them unfairly prejudicial, let alone so prejudicial as to constitute a per se violation of due process." One judge thought that the particular question asked was not sufficiently hypothetical.

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER ON ATTORNEY TESTIMONY

United States v. Hyles, 479 F. 3d 958 (8th Cir. 2007) is a case concerning attorney testimony. In a murder-for-hire trial arising from the murder of a witness against the defendant in a state drug trial, the defendant called his former attorney from the underlying case and asked him about discussions between them. The Eight Circuit affirmed the conviction. The Court held that the defendant had waived his attorney-client privilege and could not assert it to bar the government from cross-examining the attorney.

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER ON THE ENTRAPMENT DEFENSE

United States v. Franco, 484 F. 3d 347 (6th Cir. 2007) the Court affirmed a conviction for cocaine possession, the Court noted that when the defendant raised an entrapment defense he placed his character in issue, making specific instances of his conduct admissible. Because evidence of his prior drug trafficking crimes was admissible under Rules 404 (a) and 405 (b) rather than Rule 404 (b), the government was not required to provide notice of its intention to introduce the evidence.

GREGORY CHANDLER, Attorney at Law

Gregory Chandler on Foundation to Testify

This is an interesting case dealing with the ability of a witness to testify on a subject. The case is United States v. Famania-Roche, 537 F.3d 71 (1st Cir. 2008). The Court

affirmed drug convictions, holding that a cooperating witness had sufficient personal knowledge of the inner workings of a drug conspiracy to testify that the defendant controlled a certain drug point and to describe quantities of drugs sold at different drug points on a weekly basis. The witness operated her own drug point, was present at the place where the conspirators gathered to discuss the drugs they sold at various drug points, and had personally seen the defendant sell drugs to customers she sent to him.

In a similar case, United States v. Munoz, 487 F. 3d 25 (1st Cir. 2007), the Court affirmed convictions of former bank executives for bank fraud, finding no abuse of discretion in permitting an officer of the affected bank to testify regarding board meetings nearly 20 years previously. Statements such as, "I don't recall that it was discussed. I believed that if it was discussed I would remember and it was not reflected in the minutes," provided a sufficient showing that the witness had enough recall to testify from his personal knowledge about information given to the board.

GREGORY CHANDLER, Attorney at Law