11.5Exclusions From and Exceptions to Hearsay Rule

MRE 801(c) defines hearsay as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” MRE 801(a).

“Hearsay is not admissible except as provided by [the Michigan Rules of Evidence].” MRE 802 (“the hearsay rule”).¹ The following exclusions from and exceptions to the hearsay rule are commonly relied on in child protective proceedings:

(A) Admissions by party opponents;

(B) Present sense impressions;

(C) Excited utterances;

(D) Statements of existing mental, emotional, or physical condition;

(E) Statements made for purposes of medical treatment or diagnosis;

(F) Records of regularly conducted activity;

(G) General records and reports;

(H) Previous judgment or conviction; and

(I) Residual exceptions to the hearsay rule (catch-all hearsay exceptions).

A.Admissions by Party-Opponents Are Excluded From the Hearsay Rule

A brief discussion on the admissibility of party-opponent admissions is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

A respondent’s statements may be offered against him or her in child protective proceedings. See MRE 801(d)(2). A party’s own statement is not hearsay if it is offered against the party. MRE 801(d)(2). A statement by a party-opponent need not be against that party’s interest to be admitted, as is required for admissibility of statements under MRE 804(b)(3).² Shields v Reddo, 432 Mich 761, 774 n 19 (1989).

B.Present Sense Impressions

A brief discussion on the admissibility of present sense impressions is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

A present sense impression is defined as “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” MRE 803(1). A present sense impression is admissible even though the declarant is available as a witness. MRE 803.

The following three conditions must be met for evidence to be admissible under the present sense impression exception to the hearsay rule:

“(1) [T]he statement must provide an explanation or description of the perceived event[.]

(2) [T]he declarant must personally perceive the event[.][]

(3) [T]he explanation or description must be ‘substantially contemporaneous’ with the event.” People v Hendrickson, 459 Mich 229, 236 (1998).

C.Excited Utterances

A brief discussion on the admissibility of excited utterances is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

An excited utterance is defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” MRE 803(2). An excited utterance is admissible even though the declarant is available as a witness. MRE 803.

Before a statement may be admitted as an excited utterance, the following requirements must be met:

(1) The statement must arise out of a startling event.

(2) The statement must relate to the circumstances of the startling event.

(3) The statement must be made before there has been time for contrivance or misrepresentation by the declarant. People v Kowalak (On Remand), 215 Mich App 554, 557 (1996).

“[I]t is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus of the excited utterance rule. The question is not strictly one of time, but of the possibility for conscious reflection.” People v Smith (Larry), 456 Mich 543, 551 (1998).

In the following cases, the statements were found admissible as excited utterances:

•People v Houghteling, 183 Mich App 805, 806-808 (1990) (statements of five-year-old made 20 hours after sexual assault in response to mother’s questions were admissible);

•People v Garland, 152 Mich App 301, 307 (1986) (statements by seven-year-old victim of sexual abuse made one day after event were admissible where child had limited mental ability and was threatened);

•People v Soles, 143 Mich App 433, 438 (1985) (statements made five days after particularly heinous sexual assault were admissible);

•People v Slaton, 135 Mich App 328, 334-335 (1984) (tape recording of 911 call was admissible under MRE 803(2) where statements made by both a caller and 911 operator related to a startling event and made under stress of that event); and

•People v Lovett, 85 Mich App 534, 543-545 (1978) (statements by three-year-old witness to rape-murder made one week later were admissible; child stayed with grandparents during the interval between event and statements, and statements were spontaneous).

In the following cases, the statements were found inadmissible as excited utterances:

•People v Straight, 430 Mich 418, 425-428 (1988) (statements regarding sexual abuse made one month after event, during examination, and in response to repeated questioning were inadmissible);

•People v Scobey, 153 Mich App 82, 85 (1986) (statements by 13-year-old two and five days after event were inadmissible); and

•People v Sommerville, 100 Mich App 470, 489-490 (1980) (statements to police made 24 hours after assault were inadmissible).

D.Statements of Existing Mental, Emotional, or Physical Condition

A brief discussion on the admissibility of statements of then existing mental, emotional, or physical condition is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

MRE 803(3) allows admission of statements “of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.” Such statements are admissible even though the declarant is available as a witness. MRE 803.

Before a statement may be admitted under MRE 803(3), the court must conclude that the declarant’s state of mind is relevant to the case. Int’l Union UAW v Dorsey (On Remand), 273 Mich App 26, 36 (2006).

Where the declarant states that he or she is afraid, the statement may be admissible to show the declarant’s state of mind. In re Utrera, 281 Mich App 1, 18-19 (2008). In In re Utrera, supra at 18-19, the Michigan Court of Appeals affirmed the trial court’s decision to admit statements the declarant (a child) made to her therapist regarding the fear the child felt towards her mother. The Court of Appeals concluded that these hearsay statements were admissible because they pertained to the declarant’s then-existing mental or emotional condition. Id. at 18.

E.Statements Made for Purposes of Medical Treatment or Medical Diagnosis

A brief discussion on the admissibility of statements made for purposes of medical treatment or medical diagnosis in connection with treatment is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

MRE 803(4) provides an exception to the hearsay rule, regardless of the declarant’s availability as a witness, for statements that are “made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.”

“‘Particularly in cases of sexual assault, in which the injuries might be latent . . . a victim’s complete history and a recitation of the totality of the circumstances of the assault are properly considered to be statements made for medical treatment.’” People v Johnson (Jordan), 315 Mich App 163, 193 (2016), quoting People v Mahone, 294 Mich App 208, 215 (2011).

The rationales for admitting statements under MRE 803(4) are “‘(1) the self-interested motivation to speak the truth to treating physicians in order to receive proper medical care, and (2) the reasonable necessity of the statement to the diagnosis and treatment of the patient.’” Merrow v Bofferding, 458 Mich 617, 629 (1998), quoting Solomon v Shuell, 435 Mich 104, 119 (1992).

Before a hearsay statement can be found inherently trustworthy and necessary for obtaining adequate medical diagnosis and medical treatment under MRE 803(4), the following must be found:

•The statement was made for purposes of medical treatment or diagnosis in connection with treatment.

•The statement describes medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause or external source of the injury.

•The statement is supported by the “self-interested motivation to speak the truth to treating physicians in order to receive proper medical care[.]”³ 

•The statement is reasonably necessary to the diagnosis and treatment of the patient. People v Meeboer (After Remand), 439 Mich 310, 322 (1992).

This exception is frequently used in child abuse or neglect cases. Typically, a child suspected of being neglected or abused is examined by a physician and makes statements concerning injuries and their cause. Note, however, that the exception is not limited to statements made to physicians. See People v Johnson (Jordan), 315 Mich App 163, 192-195 (2016) (statements made to sexual assault nurse examiner (SANE) were admissible); People v McElhaney, 215 Mich App 269, 280-282 (1996) (statements made to physician’s assistant were admissible); People v James, 182 Mich App 295, 297 (1990) (statements made to child sexual abuse expert were admissible); People v Skinner, 153 Mich App 815, 821 (1986) (statements made to child psychologist were admissible); In re Freiburger, 153 Mich App 251, 256-258 (1986) (statements made to psychiatric social worker were admissible).

1.Trustworthiness: Age of Declarant

In assessing the trustworthiness of a declarant’s statements, Michigan appellate courts have drawn a distinction based upon the declarant’s age. For declarants over the age of ten, a rebuttable presumption arises that they understand the need to speak truthfully to medical personnel. People v Van Tassel (On Remand), 197 Mich App 653, 662 (1992).⁴ For declarants ten years of age and younger, a trial court must inquire into the declarant’s understanding of the need to be truthful with medical personnel. Meeboer (After Remand), 439 Mich at 326. To do this, a trial court must “consider the totality of circumstances surrounding the declaration of the out-of-court statement.” Meeboer, supra at 324. The Michigan Supreme Court established ten factors to address when considering the totality of the circumstances:

•The age and maturity of the declarant.

•The manner in which the statement was elicited.

•The manner in which the statement was phrased.

•The use of terminology unexpected of a child of similar age.

•The circumstances surrounding initiation of the examination.

•The timing of the examination in relation to the assault or trial.

•The type of examination.

•The relation of the declarant to the person identified as the assailant.

•The existence of or lack of motive to fabricate.

•The corroborative evidence relating to the truth of the child’s statement. Meeboer, 439 Mich at 324-325.

“In addition to the [Meeboer] ten-factor test, the reliability of the hearsay is strengthened when it is supported by other evidence, including the resulting diagnosis and treatment.” People v McElhaney, 215 Mich App 269, 282 (1996) (finding results from a physical examination that showed “numerous abrasions and the complainant[-victim]’s vaginal and rectal areas [being] red, swollen, and tender[, ]corroborated the complainant[-victim]’s account of [her sexual abuse]”), citing Meeboer (After Remand), 439 Mich at 325-326.

2.Trustworthiness: Statements to Psychologists

Regardless of the declarant’s age, statements made to psychologists may be less reliable and thus less trustworthy than statements made to medical doctors. Meeboer (After Remand), 439 Mich at 327; People v LaLone, 432 Mich 103, 109-110 (1989).

In LaLone, supra at 116, a first-degree criminal sexual conduct case, the Michigan Supreme Court overturned the trial court’s decision to admit the testimony of a psychologist based on statements made by her 14-year-old patient who was the complainant. The decision was based in part on the difficulty in determining the trustworthiness of statements to a psychologist. Id. at 109-110. The Michigan Supreme Court revisited this question in Meeboer (After Remand), 439 Mich at 329, reiterating that statements to psychologists may be less reliable than those to physicians. However, the Meeboer Court also noted that “the psychological trauma experienced by a child who is sexually abused must be recognized as an area that requires diagnosis and treatment.” Meeboer, supra at 329. Accordingly, the Court stated that its decision in LaLone should not preclude from evidence statements made during “psychological treatment resulting from a medical diagnosis.” Meeboer, supra at 329.

3.Statements Identifying Assailant

When a sexual assault victim seeks medical treatment for an injury, it is possible that the victim’s statements may identify the assailant as the “cause or external source” of the injury. If this occurs, trial courts may be called upon to determine whether the assailant’s identity is “reasonably necessary to . . . diagnosis and treatment.” MRE 803(4).

The following cases set forth some general principles for determining whether an assailant’s identity is medically relevant.

•People v Meeboer (After Remand), 439 Mich 310 (1992):

In three consolidated cases, all involving criminal sexual conduct against children aged seven and under, the Michigan Supreme Court found that statements identifying an assailant may be necessary for the declarant’s diagnosis and treatment—and thus admissible under MRE 803(4)—as long as the totality of the circumstances surrounding the statements indicates trustworthiness. The Court listed the following circumstances under which identification of an assailant may be necessary to obtain adequate medical care:

“Identification of the assailant may be necessary where the child has contracted a sexually transmitted disease. It may also be reasonably necessary to the assessment by the medical health care provider of the potential for pregnancy and the potential for pregnancy problems related to genetic characteristics, as well as to the treatment and spreading of other sexually transmitted diseases . . . .

Disclosure of the assailant’s identity also refers to the injury itself; it is part of the pain experienced by the victim. The identity of the assailant should be considered part of the physician’s choice for diagnosis and treatment, allowing the physician to structure the examination and questions to the exact type of trauma the child recently experienced.

In addition to the medical aspect . . . , the psychological trauma experienced by a child who is sexually abused must be recognized as an area that requires diagnosis and treatment. A physician must know the identity of the assailant in order to prescribe the manner of treatment, especially where the abuser is a member of the child’s household. . . . [S]exual abuse cases involve medical, physical, developmental, and psychological components, all of which require diagnosis and treatment. . . .

A physician should also be aware of whether a child will be returning to an abusive home. This information is not needed merely for ‘social disposition’ of the child, but rather to indicate whether the child will have the opportunity to heal once released from the hospital.

Statements by sexual assault victims to medical health care providers identifying their assailants can, therefore, be admissible under the medical treatment exception to the hearsay rule if the court finds the statement sufficiently reliable to support that exception’s rationale.” Meeboer (After Remand), 439 Mich at 328-330.

•People v Van Tassel (On Remand), 197 Mich App 653 (1992):

In this first-degree criminal sexual conduct case, the 13-year-old complainant identified her father as her assailant during a health interview that preceded a medical examination ordered by the probate court in a separate abuse and neglect proceeding. Van Tassel (On Remand), 197 Mich App at 656. The Court of Appeals found that the Meeboer factors had no application in a criminal sexual conduct case involving a complainant over age ten. Van Tassel, supra at 662. Nonetheless, the Court applied the Meeboer factors and concluded that the complainant’s hearsay statements were trustworthy and properly admitted by the trial court.⁵ Van Tassel, supra at 663-664. The Court also held that identification of the assailant was reasonably necessary to the complainant’s medical diagnosis and treatment: “[T]reatment and removal from an abusive home environment was medically necessary for the child victim of incest.” Id. at 661.

•People v Creith, 151 Mich App 217 (1986):

The defendant appealed from his conviction of manslaughter. The victim, who suffered from kidney failure, died after an alleged beating by the defendant. Creith, 151 Mich App at 220. At trial, the court permitted the jury to hear the testimony of a nurse from the victim’s dialysis center and another nurse from a hospital emergency room. Creith, supra at 220-222. These nurses testified that the victim had described abdominal pain resulting from being punched in the abdomen by the defendant. Id. The Court of Appeals held that the trial court properly admitted the testimony of these witnesses under MRE 803(4). Creith, supra at 226-227. The Court found that the victim’s statements were made for the sole purpose of seeking medical treatment and were reasonably necessary for that purpose. Id.

F.Records of Regularly Conducted Activity

A brief discussion on the admissibility of records of regularly conducted activity is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

In child protective proceedings, MRE 803(6) allows for the admission of records such as the Department of Health and Human Services (DHHS) records, medical records concerning the child, and police reports.⁶ MRE 803(6) specifically indicates that the following are not excluded by the hearsay rule, even though the declarant is available as a witness:

“A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

See Merrow v Bofferding, 458 Mich 617, 626-628 (1998) (part of plaintiff’s “History and Physical” hospital record was admissible under MRE 803(6) because it was compiled and kept by the hospital in the regular course of business); People v Jobson, 205 Mich App 708, 713 (1994) (police activity log sheet was properly admitted into evidence under MRE 803(6)).

Although it otherwise meets the foundational requirements of MRE 803(6), a business record may be excluded from evidence if the source of information or the method or circumstances of preparation indicate lack of trustworthiness. People v Huyser, 221 Mich App 293, 296-299 (1997) (expert’s report lacked trustworthiness of a report generated exclusively for business purposes when the expert prepared the report in contemplation of trial).

A business record may itself contain hearsay statements, each of which is admissible only if it conforms independently with an exception to the hearsay rule. MRE 805.

Under MRE 803(6), properly authenticated records that constitute records of regularly conducted activity may be introduced into evidence without requiring the records’ custodian to appear and testify. See MRE 902, governing the authentication of a business record by the written certification of the custodian or other qualified person, which provides in part:

“Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

* * *

(11) Certified Records of Regularly Conducted Activity. The original or a duplicate of a record, whether domestic or foreign, of regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that-

(A) The record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) The record was kept in the course of the regularly conducted business activity; and

(C) It was the regular practice of the business activity to make the record.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.”

G.Public Records and Reports

A brief discussion on the admissibility of public records and reports is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

MRE 803(8) contains a hearsay exception for:

“Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, and subject to the limitations of MCL 257.624.”⁷

MRE 803(8)(B) does not allow the introduction of evaluative or investigative reports. Bradbury v Ford Motor Co, 419 Mich 550, 553-554 (1984). The exception extends only to “reports of objective data observed and reported by [public agency] officials.” Bradbury, supra at 554. See People v Shipp, 175 Mich App 332, 334-335, 339-340 (1989) (portions of an autopsy report containing the medical examiner’s conclusion and opinion that death ensued after attempted strangulation and blunt instrument trauma were improperly admitted into evidence under MRE 803(8); however, the medical examiner’s recorded observations about the decedent’s body were admissible).

A public record may itself contain hearsay statements, each of which is admissible only if it conforms independently with an exception to the hearsay rule. MRE 805.

H.Previous Judgment or Conviction

Child protective proceedings often arise from the same circumstances as a criminal prosecution. Furthermore, a prior order terminating a parent’s parental rights may serve as a basis to assume jurisdiction over a current child or to terminate a parent’s parental rights to a current child.⁸ Thus, the issue of the admissibility of a prior order or judgment may arise in child protective proceedings.

“A copy of any order, judgment or decree, of any court of record in this state, duly authenticated by the certificate of the judge, clerk or register of such court, under the seal thereof, shall be admissible in evidence in any court in this state, and shall be prima facie evidence of the jurisdiction of said court over the parties to such proceedings and of all facts recited therein, and of the regularity of all proceedings prior to, and including the making of such order, judgment or decree.” MCL 600.2106 (emphasis added).

With regard to the orders, judgments, or decrees of a court of another state, MCL 600.2103 provides:

“The records and judicial proceedings of any court in the several states and territories of the United States and of any foreign country shall be admitted in evidence in the courts of this state upon being authenticated by the attestation of the clerk of such court with the seal of such court annexed, or of the officer in whose custody such records are legally kept with the seal of his office annexed.”

A judgment of conviction of a felony or two-year misdemeanor may be admissible as substantive evidence of conduct at issue in a subsequent civil case. See MRE 803(22), which specifically provides:

“Evidence of a final judgment, entered after a trial or upon a plea of guilty (or upon a plea of nolo contendere if evidence of the plea is not excluded by MRE 410), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, [is admissible] to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.”

Note: By its terms, MRE 803(22) is limited to convictions and does not extend the hearsay exception to judgments of acquittal.

MRE 803(22) must be read in conjunction with MRE 410, which limits the use of pleas and plea-related statements. Under MRE 410, the following evidence is not admissible in a civil or criminal proceeding against a defendant who made a plea or participated in plea discussions:

“(1) A plea of guilty which was later withdrawn or vacated;

(2) A plea of nolo contendere, except that, to the extent that evidence of a guilty plea would be admissible, evidence of a plea of nolo contendere to a criminal charge may be admitted in a civil proceeding to support a defense against a claim asserted by the person who entered the plea;

(3) Any statement made in the course of any proceedings under MCR 6.302^[9] or MCR 6.310 or comparable state or federal procedure regarding either of the foregoing pleas; or

(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn or vacated.”¹⁰

However, such statements are admissible in any proceeding if “another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it . . . .” MRE 410.

I.Residual Exceptions to the Hearsay Rule

A brief discussion on the residual exceptions is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

By invoking MRE 803(24) or MRE 804(b)(7), commonly known as “catch-all” hearsay exceptions, a party may seek admission of hearsay statements not covered under one of the firmly established exceptions in MRE 803(1)-(23).

Under MRE 803(24), the following is not excluded by the hearsay rule, even though the declarant is available as a witness:

“A statement not specifically covered by [MRE 803(1)–MRE 803(23)] but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of the statement makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.”

If the declarant is unavailable as a witness, a hearsay statement not admissible under the specific exceptions described in MRE 804(b)(1)-(6) may be admissible under MRE 804(b)(7), which is identical to MRE 803(24).

A statement is admissible under MRE 803(24) or MRE 804(b)(7)¹¹ upon a showing of (1) circumstantial guarantees of trustworthiness equivalent to those of the established hearsay exceptions, (2) materiality, (3) probative value greater than that of other reasonably available evidence, (4) serving the interests of justice, and (5) sufficient notice. People v Katt, 468 Mich 272, 279, 290, 297 (2003) (child victim’s statements to her social worker that the defendant sexually abused her were not admissible under MRE 803A, but were under MRE 803(24)). See People v Geno, 261 Mich App 624, 625, 631-635 (2004) (child’s statement to an interviewer conducting an assessment of the child that the defendant hurts her “here” and pointed to her vaginal area was properly admitted under MRE 803(24)).