On May 5, 2009, Pat entered the lobby of a motel in Garrett County, Maryland, and told the clerk that her bungalow was on fire. The clerk called the fire department. Inside the room, firefighters found the partially burned body of Pat’s husband, Tony, in one of the beds, and a partially burned cigar near his body.

The suspicious nature of the fire caused officials to investigate Tony’s death. The police learned the following: Pat, a nurse, and Tony, an architect, had been married for 10 years. Pat was bored with her marriage and became infatuated with Ned. Pat told some of her coworkers that she planned to kill Tony, make it look like an accident, and take his life insurance money to start a new life with Ned. Pat worked in an operating room at Garrett Hospital on April 29, 2009. Hospital records contained a statement that two bottles of a paralytic drug, which is used for certain heart/lung surgeries and leaves no trace in the body, were missing from the anesthesia cart at the end of Pat’s shift on April 29, 2009.

Fire investigators determined that Tony was not a smoker, and that the fire was deliberately set. The local medical examiner, Dr. Scheiner, who has conducted hundreds of autopsies and testified in more than one hundred trials, conducted an autopsy on Tony’s body. The autopsy showed that there was no soot in Tony’s lungs, indicating that Tony was not breathing before the fire was set. Dr. Scheiner found no abnormalities in any vital organs in Tony’s body. Chemical tests conducted on Tony’s body did not reveal the presence of any poisons.

Pat was arrested for the first degree murder of Tony. Trial was held in the Circuit Court for Garrett County, Maryland.

During Pat’s trial, the Court allowed testimony by the State’s four witnesses, over the timely objections of defense counsel, as follows:

(a) Ned testified that Pat told him that “they will never be able to figure it out and that the drug I gave him is not traceable.”
(b) The owner of a tobacco store testified that one of his clerks told him that the clerk sold a package of cigars to Pat in late April 2009.
(c) Trooper Jones testified that he reviewed a hospital record that showed on April 29, 2009, Pat worked in the operating room from which the bottles of a paralytic drug were missing.
(d) Dr. Scheiner testified that, in his expert opinion, Tony died of poisoning by an undetermined agent.

Did the Circuit Court correctly overrule each objection? Explain the reason for each answer.


Call of the question:

Did the Circuit Court correctly overrule each objection? Explain the reason for each answer.

Role: Appellate Judge.

(a) The statements that Pat made to Ned constitute hearsay.

• Hearsay is an out of court statement that is offered into evidence to prove the truth of the matter asserted. Without an exception, such statements are inadmissible.

• However, the statements fall within the exceptions for admissions of a party opponent. Pat’s statement is admissible since it was Pat’s own statement, and it was offered into evidence by her party opponent, the prosecution.

• Unavailability of the witness is not required to permit the admission of a party opponent.

• Furthermore, the prosecution could argue that the statement was admissible as a statement against Pat’s interest since it would subject her to criminal liability.

• The prosecution can show that the statement is against Pat’s penal interests and that she has personal knowledge of the facts of her statement.

• But, for the statement against interest exception to work, Pat would have to be unavailable.

(b) The Court should not have permitted the owner of the tobacco store to testify about the clerk’s statement.

• Here, the prosecution wants the store owner to testify about what his clerk told him. The statement is being offered for the truth of the matter asserted – that Pat bought cigars.

• The owner’s statement is inadmissible hearsay – an out of court statement offered to prove the truth of the matter asserted. It does not fall within any exception to the rule against hearsay.

(c) The Court should not have permitted Trooper Jones to testify about the contents of the hospital records.

• Trooper Jones’ testimony violated the best evidence rule.

• The best evidence rule requires the proponent of a document to use the original document when the document is material to the litigation. The proponent may use a secondary source only if she can show that the original is unavailable through no fault of her own. No such showing was made here.

(d) The Court properly admitted Dr. Scheiner’s expert testimony. It is within the sound discretion of the Court to determine the admissibility of expert testimony.

• Expert testimony will be admitted if it would assist the trier of fact to understand the evidence or to determine a fact in issue.

• The Court must first determine (1) that the witness is qualified as an expert by training or experience, (2) whether the expert’s testimony is appropriate, and (3) whether a sufficient factual basis exists to admit the expert’s testimony.

• In this case, Dr. Scheiner was properly qualified as an expert witness by both training and experience. He is the local medical examiner, he is a doctor, he has conducted hundreds of autopsies, and he has been accepted by the Court as an expert in over one hundred other cases.

• His testimony as to cause of death is appropriate. He conducted the autopsy and ruled out asphyxiation and natural causes.

• His opinion as to cause of death is appropriate because it assists the trier of fact, in this case a jury, to determine whether or not Pat caused the death of Tony.

• Finally, given the facts presented, the Court properly found that a sufficient factual basis existed to admit the evidence.

• Dr. Scheiner determined during the autopsy that the fire did not cause Tony’s death, since there was no soot in his lungs, which indicated that he was not breathing at the time that the fire was burning in the hotel room.

• Dr. Scheiner also ruled out other natural causes. While the autopsy did not reveal any poisons in Tony’s body, the medical examiner was undoubtedly made aware of other facts in the case since he participated in the investigation of the death.

• Maryland law permits an expert to base his expert opinion on facts perceived by him or made known to him by others. The relevant facts here are that the fire was set after Tony died and that Pat told Ned that she planned to kill her husband with an untraceable drug.

• Even without these extrinsic facts, the finding of a post mortem examination were consistent with death by unnatural causes and not by accident.