11.5Exclusions From and Exceptions to Hearsay Rule

This section discusses hearsay issues that may arise in child protective proceedings. 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.

MRE 801(c) defines hearsay as “a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

“‘Statement’ means a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.” MRE 801(a).

“Hearsay is not admissible unless [the Michigan Rules of Evidence] provide otherwise.” MRE 802 (“the hearsay rule”).¹ Exclusions from, and exceptions to, the hearsay rule include:

•admissions by party opponents, see MRE 801(d)(2);

•present sense impressions, see MRE 803(1);

•excited utterances, see MRE 803(2);

•statements of then-existing mental, emotional, or physical condition, see MRE 803(3);

•statements made for purposes of medical treatment or diagnosis in connection with treatment, see MRE 803(4);

•records of regularly conducted activity, see MRE 803(6);

•public records, see MRE 803(8);

•judgment of a previous conviction, see MRE 803(22);

•certain former testimony or statements of an unavailable witness, see MRE 804(b)(1); MRE 804(b)(3); MRE 804(b)(6); and

• residual exception to the hearsay rule, see MRE 807.²

A.Admissions by a Party-Opponent

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).³ Shields v Reddo, 432 Mich 761, 774 n 19 (1989).

B.Present Sense Impressions

A present sense impression is defined as “[a] statement describing or explaining an event or condition made while or immediately after the declarant perceived it.” 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

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 that it caused.” 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 Then-Existing Mental, Emotional, or Physical Condition

MRE 803(3) allows admission of statements “of the declarant’s then-existing state of mind, or emotional, sensory, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity 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 Diagnosis in Connection With Treatment

MRE 803(4) provides an exception to the hearsay rule, regardless of the declarant’s availability as a witness, for a statement that:

“(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 (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[.]”⁴ 

•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).⁵ 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 victim 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.

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.⁶ 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

MRE 803(6) allows for the admission of records of regularly conducted activity. 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.⁷MRE 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 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.”

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:

“The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

* * *

(11) Certified Domestic or Foreign Record of a Regularly Conducted Activity. The original or a copy of a domestic or foreign record that meets the requirements of [MRE 803(6)(A)-MRE 803(6)(C)], as shown by a certification of the custodian or another qualified person that complies with a Michigan statute or a rule prescribed by the Supreme Court. 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.

G.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.”⁸ MRE 803(8).

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.⁹ 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 that evidence of a final judgment of conviction is not excluded by the rule against hearsay if:

“(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea unless allowed by MRE 410;

(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.”

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. MRE 410 states, in part:

“(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn or vacated;

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

(3) a statement made during a proceeding on either of those pleas under MCR 6.302^[10] or MCR 6.310,^[11] a comparable state procedure, or [FRCP] 11; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn or vacated guilty plea.”¹²

Some exceptions to the rule against the admission of statements arising in plea discussions or plea proceedings exist:

“(b) Exceptions. The court may admit a statement described in [MRE 410(a)(3) or MRE 410(a)(4)]:

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.” MRE 410.

I.Residual Exceptions to the Hearsay Rule¹³

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.

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.

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.

See People v Katt (Katt II), 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)¹⁴). See also 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)¹⁵).

The party offering the evidence must provide advance notice of its intent to produce the evidence. Katt II, 468 Mich at 279. 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.”