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New Jersey Trial Court Erred in Admitting Testimony of Nurse


by in Criminal Appeals, Criminal Defense

In this recent New Jersey criminal case successfully appealed, the appeals court found that the trial judge erred by admitting a nurse’s testimony into evidence where that testimony contained inadmissible hearsay, expert testimony, and other improprieties.

State v. K.E., unpublished opinion, App. Div. Docket No. A-4422-07T4 (December 22, 2009) – Convictions reversed. “We first address defendant’s contention that the testimony of Treston [a nurse-practitioner who examined the victim at the State’s request] contained inadmissible, prejudicial evidence.

[W]e agree, concluding that Treston’s testimony was replete with inadmissible hearsay statements, expert testimony, and other-crimes evidence which unfairly prejudiced defendant…. Treston was allowed to provide expert testimony harmful to the defendant, although she was not qualified by the court as an expert witness.

Treston expressed her opinion, based on her observations of E.A. and her years of experience, that E.A. had been ‘battered [and] beaten down.’… Treston was not proffered by the State as an expert witness, she was not qualified by the court as an expert witness, and the court did not give the jury the standard charge on expert witness testimony….

In her expert opinion and at other points in her testimony, Treston expressed her opinion that E.A. has sustained multiple anal assaults…. In addition to the hearsay and expert testimony problems noted above, this testimony also constituted other-crimes evidence under N.J.R.E. 404(b)….

If the jury was doubtful whether or not to believe E.A., the testimony of Treston that repeated and augmented E.A.’s testimony, that tended to bolster the credibility of E.A., and that denigrated defendant with inadmissible other-crimes evidence, had the grave potential to impermissibly influence the jury resulting in a miscarriage of justice.” (Jeffrey C. Zucker; Jack L. Weinberg, on the brief)






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