6.8Selected Hearsay Rules and Exceptions

This section discusses hearsay issues that may arise in CSC cases. For a more detailed discussion of hearsay issues, including evidence excluded from the definition of hearsay, as well as exceptions to the rule against the admission of hearsay, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.

A.Hearsay Rules

Except as provided in the Michigan Rules of Evidence, hearsay is not admissible. MRE 802. Exceptions to the rule against the admission of hearsay are found in MRE 803, MRE 803A, MRE 804, and MRE 807.

B.Exceptions to the Rule Against Hearsay Regardless of Declarant’s Availability

1.Excited Utterance

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

“To come within the excited utterance exception to the hearsay rule, a statement must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion.” People v Skippergosh, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted).

A sexual assault is a startling event. People v Straight, 430 Mich 418, 425 (1988).

“The plain language of MRE 803(2) . . . does not require that a startling event or condition be established solely with evidence independent of an out-of-court statement before the out-of-court statement may be admitted. Rather, MRE 1101(b)(1) and MRE 104(a)^[1] instruct that when a trial court makes a determination under MRE 803(2) about the existence of a startling event or condition, the court may consider the out-of-court statement itself in concluding whether the startling event or condition has been established.” People v Barrett, 480 Mich 125, 139 (2008).

“The focus of MRE 803(2), given a startling event, is whether the declarant spoke while still under the stress caused by the startling event.” Straight, 430 Mich at 425-426 (ruling that statements made by the alleged victim “approximately one month after the alleged assault, immediately after a medical examination of the child’s pelvic area, and after repeated questioning by her parents” were inadmissible hearsay). The justification for the excited utterance rule is lack of capacity to fabricate, not lack of time to fabricate. Straight, 430 Mich at 425. See also Skippergosh, ___ Mich App ___, ___ (witness testified that the complainant appeared “scared” at the time she made the utterance, “[t]he fact that [she] was ‘scared’ suggest[ed] that she did not have sufficient time after the assault to gather her thoughts to create a misrepresentation”).

“[T]here is no express time limit for excited utterances.” Smith, 456 Mich at 551. In Smith, 456 Mich at 552-553, the statement made by the CSC-I victim ten hours after the sexual assault was admissible as an excited utterance because the circumstances under which the statement was made “describe[d] a continuing level of stress arising from the assault that precluded any possibility of fabrication.” However, the Court noted that the statement was “nearing the outer limits of admissibility under the excited utterance exception, and trial courts should be so cautioned.” Id. at 554 n 4. See also, e.g., Skippergosh, ___ Mich App at ___ (“testimony indicated that [complainant] was actively bleeding when she made the statements, which suggested that the statements were made shortly after the assault”).

But see People v Layher, 238 Mich App 573, 583-584 (1999), where a statement made by a 15-year-old victim during therapy one week after the alleged assault was an excited utterance because the victim was in a continuing state of emotional shock precipitated by the assault. According to the Layher Court: “The[] circumstances, combined with complainant’s young age, mental deficiency, and the relatively short interval between the assault and the statement, militate against the possibility of fabrication and support an inference that the statement was made out of a continuing state of emotional shock precipitated by the assault.” Id. at 584.

A statement that identifies the perpetrator of an assault relates to the circumstances of the startling occasion and may satisfy the third criterion of the excited-utterance hearsay exception under MRE 803(2). See Skippergosh, ___ Mich App at ___ (“[T]he statements made by [the victim] related to the circumstances of the startling occasion, as they noted the perpetrator of the assault.”).

2.Statements Made for Purposes of Medical Treatment or Diagnosis in Connection With Treatment

MRE 803(4) allows admission of statements made for purposes of medical treatment or diagnosis. A statement is admissible under MRE 803(4) if it:

“(A) is made for—and is reasonably necessary to—medical treatment or diagnosis in connection [with] treatment; and

(B) describes medical history, past or present symptoms or sensations, their inception, or their general cause.”

“‘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, 315 Mich App 163, 193 (2016), quoting People v Mahone, 294 Mich App 208, 215 (2011).

The rationale for admitting statements under MRE 803(4) is: “‘(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 (1990). See also People v Shaw, 315 Mich App 668, 675 (2016), where the Court held that the victim’s statements to a pediatrician regarding alleged sexual abuse were not made for the purposes of medical treatment and were therefore inadmissible under MRE 803(4). In Shaw, the pediatrician’s examination “did not occur until seven years after the last alleged instance of abuse, thereby minimizing the likelihood that the complainant required treatment.” Shaw, 315 Mich App at 675. In addition, “the complainant did not seek out [the pediatrician] for gynecological services. Rather, she was specifically referred to [the pediatrician] by the police in conjunction with the police investigation into the allegations of abuse by defendant.” Id.

a.Trustworthiness of Statements Based on Declarant’s Age

In assessing the trustworthiness of a declarant’s statements, Michigan appellate courts have drawn a distinction based upon the declarant’s age. There is a rebuttable presumption that declarants older than the age of 10 understand the need to speak truthfully to medical personnel. People v Garland, 286 Mich App 1, 9 (2009). For declarants aged 10 and younger, a trial court must “investigat[e] . . . the circumstances surrounding the making of the hearsay statements . . . in order to establish whether the child understood the need to be truthful to the physician.” People v Meeboer (After Remand), 439 Mich 310, 326 (1992).

To determine the trustworthiness of a statement made by a child aged 10 or younger, the trial court must “consider the totality of circumstances surrounding the declaration of the out-of-court statement.” Meeboer, 439 Mich at 324. In Meeboer, the Supreme Court announced ten factors to consider when examining the totality of circumstances in cases involving declarants 10 years of age and younger:

“(1) the age and maturity of the declarant,

(2) the manner in which the statements are elicited (leading questions may undermine the trustworthiness of a statement),

(3) the manner in which the statements are phrased (childlike terminology may be evidence of genuineness),

(4) use of terminology unexpected of a child of similar age,

(5) who initiated the examination (prosecutorial initiation may indicate that the examination was not intended for purposes of medical diagnosis and treatment),

(6) the timing of the examination in relation to the assault (the child is still suffering pain and distress),

(7) the timing of the examination in relation to the trial (involving the purpose of the examination),

(8) the type of examination (statements made in the course of treatment for psychological disorders may not be as reliable),

(9) the relation of the declarant to the person identified (evidence that the child did not mistake the identity), and

(10) the existence of or lack of motive to fabricate.” 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 that results from a physical examination corroborated the victim’s account of the sexual abuse), citing Meeboer, 439 Mich at 325-326.

Application of the Meeboer factors. The following caselaw applies the Meeboer factors to assess the trustworthiness of statements made by declarants 10 years of age or younger:

•People v Johnson, 315 Mich App 163, 194-195 (2016):

In applying the Meeboer factors, the court found a six-year-old declarant’s statements to a sexual assault nurse examiner (SANE) were trustworthy and thus admissible under MRE 803(4) to prosecute the defendant for CSC-I and CSC-II where the defendant (1) admitted that the declarant was “smart,” which indicated the maturity of the declarant, (2) the SANE asked the declarant open-ended questions when eliciting the declarant’s statements, (3) the purpose of the examination was to ensure declarant’s health and safety in her home, (4) the declarant’s statements were phrased in a childlike manner, (5) the declarant initially did not want to talk about the alleged assault to the SANE, which may have indicated that the declarant was still distressed about the sexual acts, (6) the examination occurred less than one month after the declarant disclosed the incident and more than four months before trial, and (7) the declarant was not likely to be mistaken in her identification because the defendant identified was the declarant’s uncle, a person with whom she was familiar. Johnson, 315 Mich App at 194-195.

In Johnson, the Court noted two of the Meeboer factors that did not support a finding that the statements made to the SANE were trustworthy: (1) CPS (child protective services) initiated the medical examination, which could have suggested that the examination was not for the purpose of treatment or diagnosis, and (2) testimony given at trial indicated “that the victim did not like it when defendant babysat because he would make [the victim] clean and do chores, thus suggesting a motive to fabricate.” Johnson, 315 Mich App at 195. In applying all of the Meeboer factors, the Court decided that “the totality of the circumstances support[ed] the admission of the victim’s statements because they were trustworthy[.]” Id.

•People v Duenaz, 306 Mich App 85, 94, 96-97 (2014):

In applying the Meeboer factors, the court found that the eight-year-old declarant’s statements to a board-certified emergency physician and medical director of a child advocacy center were trustworthy and thus admissible under MRE 803(4) to prosecute the defendant for CSC-I and CSC-II where the declarant, age eight (1) was mature enough to tell the physician the details of the assault, (2) the physician did not ask the declarant leading questions to elicit the statements, (3) the declarant’s statements were phrased in childlike terms, (4) the examination occurred when the declarant was still suffering from the pain and distress caused by the incident, (5) the examination was medical rather than psychological, and (6) nothing indicated that the declarant was mistaken in her identification of defendant or that she had a motive to fabricate. In addition, although the prosecution initiated the examination, its purpose may have been in part the investigation of an alleged sexual assault, and so the prosecution’s initiation of the examination was not dispositive. Duenaz, 306 Mich App at 94, 96.

•People v McElhaney, 215 Mich App 269, 280-282 (1996):

In applying the Meeboer factors, the Court found the nine-year-old declarant’s statements to a physician’s assistant about being sexually assaulted were trustworthy and thus admissible under MRE 803(4) to prosecute the defendant for CSC-I where (1) there was no evidence that the declarant was immature, (2) the manner in which the declarant’s responses were elicited—the questions posed to the declarant were neutral—does not undermine their credibility, (3) the declarant’s use of words was not scientifically complex and did not suggest that she had been influenced by an adult, (4) the examination was conducted to determine whether the declarant had been injured, (5) the declarant made the statements at the hospital only hours after the assault and before a suspect was identified, (6) the examination was for medical purposes, not for psychological purposes, (7) the declarant did not identify a perpetrator, and (8) no evidence was presented indicating that declarant had a motive to fabricate. McElhaney, 215 Mich App at 280-282.

b.Statements Identifying Defendant as Perpetrator

When a victim of sexual assault seeks medical treatment for an injury, it is possible that the victim’s statements to the treating medical professional may identify the assailant as the “general cause” of “past or present symptoms or sensations, [or] their inception[.]” MRE 803(4). If this occurs, trial courts may be called upon to determine whether the assailant’s identity is reasonably necessary to medical diagnosis or treatment.

Generally, statements of identification are not admissible under MRE 803(4) because “the identity of an assailant cannot fairly be characterized as the ‘general cause’ of an injury.” People v LaLone, 432 Mich 103, 113 (1989). In LaLone, the fact that the declarant’s statements were made to a psychologist rather than a physician “suggest[ed] that the statement by the victim . . . may [have been] less reliable than a statement made to a physician.” Id. That is, the statement did not qualify for the hearsay exception in MRE 803(4) because it did not occur in the context of “medical treatment or medical diagnosis” or other information “necessary to such diagnosis or treatment.” LaLone, 432 Mich at 114; MRE 803(4).

However, in People v Meeboer (After Remand), 439 Mich 310, 322 (1992), the Michigan Supreme Court determined that a child-declarant’s statements of identification are “necessary to adequate medical diagnosis and treatment.” (Emphasis added.) A child’s statement identifying a perpetrator

“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 . . . . Furthermore, certain diseases, such as acquired immune deficiency syndrome, cannot be detected in the early stages after a sexual assault.” Meebooer, 439 Mich at 328-329.

3.Records of a Regularly Conducted Activity

MRE 803(6) allows for the admission of records of regularly conducted activity.² MRE 803(6) specifically indicates that the following records are not excluded by the hearsay rule, even though the declarant is available as a witness:

“A record of an act, transaction, occurrence, event, condition, opinion, or diagnosis [is not excluded by the rule against hearsay] if:

(A) the record was made at or near the time by – or from information transmitted by – someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with a rule prescribed by the Supreme Court or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”

“[E]xtrinsic evidence is not required to authenticate a record admissible under MRE 803(6) if the record was accompanied by a written declaration under oath by a qualified person certifying that” the record meets the requirements of MRE 803(6)(A)-(C). People v Dingee, ___ Mich App ___, ___ (2025), citing MRE 902(11). “Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.” MRE 902(11).

The trial court did not abuse its discretion when it allowed a prosecutor to admit Facebook records under MRE 902(11) without providing “a separate, formal notice to the defense in which she related that she intended to admit the Facebook records as self-authenticating documents under MRE 902(11) . . . .” Dingee, ___ Mich App at ___. The prosecutor did the following: listed the Facebook records in the notice of evidence that she intended to admit, id. at ___; “provided the defense with all ‘written or recorded statements’ by lay witnesses and had already provided the defense with copies of all ‘documents, photographs or other papers that the People may introduce,’” id. at __; and “made it amply clear that the Facebook records were the social media posts that were certified” at the defendant’s preliminary examination. Id. at ___. The Court held that the prosecutor’s actions met “the minimum requirements” of MRE 902(11), even though the prosecutor did not provide the separate, formal, and written notice prescribed by the rule. Dingee, ___ Mich App at ___.

A medical record was admitted into evidence under MRE 803(6) in Merrow v Bofferding, 458 Mich 617, 626-627 (1998), where the Court held that part of the 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.

Even if a document is admissible under MRE 803(6), every statement contained in the document may not be admissible. Merrow, 458 Mich at 627; MRE 805 (hearsay within hearsay rule). If the document contains a hearsay statement, that statement is admissible only if it qualifies under an exception to the hearsay rule or is admissible as nonhearsay. See MRE 805.

Although it otherwise meets the foundational requirements of MRE 803(6), a business record may be excluded from evidence when the record was prepared “solely for purposes of litigation,” because the circumstances of preparation undermine the record’s trustworthiness. People v Huyser, 221 Mich App 293, 298-299 (1997).

4.Absence of Record Entry

MRE 803(7) contains a hearsay exception for the absence of an entry in certain records. “Evidence that a matter is not included in a record described in [MRE 803(6) is not excluded by the rule against hearsay] if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.” MRE 803(7).

Evidence that there existed no record of a report of sexual assault may be elicited when that kind of information is regularly reported and preserved in some kind of business record. People v Marshall, 497 Mich 1023, 1023 (2015). “[E]vidence that no report was ever made was admissible ‘to prove the nonoccurence or nonexistence of the matter[.]’” Id., quoting MRE 803(7).

5.Public Records

MRE 803(8) allows the admission of public records.

“A record or statement of a public office [is not excluded by the rule against hearsay] if it sets out:

(A) the office’s activities; or

(B) a matter observed while under a legal duty to report, but not including:

(i) in a criminal case, a matter observed by law-enforcement personnel; and

(ii) information to which the limitations in MCL 257.624 apply.”³ MRE 803(8).

C.Residual Hearsay Exception

A party may seek admission under MRE 807 of hearsay statements not covered under one of the firmly established exceptions in MRE 803 or MRE 804.

MRE 807 provides:

“(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in [MRE 803 or MRE 804]:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will serve the purposes of these rules and the interests of justice.

 The party offering the evidence must provide advance notice of its intent to produce the evidence. People v Katt (Katt II), 468 Mich 272, 279 (2003).According to MRE 807:

(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant’s name and address—so that the party has a fair opportunity to meet it.”

The following cases discuss the residual hearsay exception.⁴

•People v Douglas, 496 Mich 557 (2014):

The defendant was convicted of CSC-I and CSC-II for sexually abusing his then-three-year-old daughter. Douglas, 496 Mich at 561-563. Statements made by the victim were inadmissible as hearsay not covered by the tender-years exception of MRE 803A, because the statements were not the first corroborative statements. Douglas, 496 Mich at 575-576. The prosecution argued that the statements were nonetheless admissible under MRE 803(24). Douglas, 496 Mich at 576, 578. The Court rejected the prosecution’s argument because the victim’s statements were not the most probative evidence reasonably available. Douglas, 496 Mich at 576-577. Moreover, the testimony about the victim’s statements during the forensic interview did not demonstrate circumstantial guarantees of trustworthiness because the statements were not the first corroborative statements, the statements were delayed, the victim’s mother’s motives in connection with the victim’s disclosure were disputed, and the statements were not spontaneous; rather, the statements were given in response to questions posed in the forensic interview in order to investigate the victim’s prior disclosure of sexual abuse. Id. at 578-579.

•People v Katt (Katt I), 248 Mich App 282 (2001); People v Katt (Katt II), 468 Mich 272 (2003):

The defendant was convicted of CSC-I against a seven-year-old boy and the boy’s five-year-old sister. Katt I, 248 Mich App at 285. The defendant claimed the trial court erred by admitting under MRE 803(24) testimony from a child protective services (CPS) specialist that was not admissible under MRE 803A. Katt I, 248 Mich App at 285. The defendant argued that MRE 803A “covered the field” so that evidence not admissible under MRE 803A could not be considered for admission under the catch-all hearsay rule. Katt I, 248 Mich at 288-290. The defendant’s argument characterized the “near miss” theory, which “‘states that a piece of hearsay evidence may be offered only under the exception that most nearly describes it. If it is excluded under that exception, it may not be offered under the residual exception.’” Katt II, 468 Mich at 281 (citations omitted). The Court declined to adopt the near-miss rule and instead held that “the residual exceptions may be used to admit statements that are similar to, but not admissible under, the categorical hearsay exceptions.” Id. at 290.

“[W]here the trial court concludes that [a] statement possesses the requisite ‘particular guarantee[s] of trustworthiness,’ and otherwise meets the requirements of MRE 803(24) it may properly admit the statement into evidence, in spite of its inability to meet the requirements of another firmly rooted exception to the hearsay rule.” Katt I, 248 Mich App at 294 (citations omitted; second alteration in original). See also Katt II, 468 Mich at 289-290. In this case, the Court found the boy’s statements trustworthy because he voluntarily and spontaneously told the CPS specialist about the sexual abuse, his recitation of the relevant facts involving the assaults remained consistent, he had personal knowledge of the sexual abuse against him and his sister because he was present when it occurred, he freely recounted the circumstances without leading questions or coaxing, he often used terminology not expected from a child of his age, he was not shown to have a motive to fabricate, and he and his sister testified at trial and were subject to extensive cross-examination. Katt I, 248 Mich App at 297-299.

•People v Geno, 261 Mich App 624 (2004):

The defendant was convicted of CSC-I against the defendant’s girlfriend’s two-year-old daughter. Geno, 261 Mich App at 625. During an assessment and interview at a children’s assessment center, the child asked the interviewer to go to the bathroom with her, where the interviewer observed blood in the child’s pull-up. Id. The interviewer asked the child if she “had an owie,” and the child answered, “yes, [the defendant] hurts me here” and pointed to her vaginal area. Id. at 625 (alteration in original). The defendant argued that the child’s statement was improperly admitted under MRE 803(24). Geno, 261 Mich App at 629-630. The Court of Appeals held that the “residual or ‘catch-all’” exception to the hearsay rule, . . . allows for the admission of ‘[a] statement not specifically covered by any of the [other] exceptions but having equivalent circumstantial guarantees of trustworthiness.’” Id. at 632, quoting MRE 803(24) (first alteration in original). The child’s statement was properly admitted because the statement was not covered by any other MRE 803 hearsay exception, and the statement met the requirements outlined in Katt II, 468 Mich [at 279]. Geno, 261 Mich App 632.