6.9Evidentiary Issues: Hearsay

This section discusses hearsay issues that may arise in cases involving crime victims. 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).

Except as provided in the Michigan Rules of Evidence, hearsay is not admissible. MRE 802. The rules of evidence and some statutory provisions also establish hearsay exceptions for cases pertaining to crime victims. See e.g., MRE 803; MRE 803A; MRE 804; MRE 807; MCL 768.26; MCL 768.27c. These exclusions and exceptions include:

•testimonial evidence of threats (i.e., statements not offered to prove the truth of the matter asserted or admissions by a party-opponent), see MCL 768.27c;;

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

•excited utterances, see MRE 803(2);

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

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

•recorded recollection, see MRE 803(5);

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

•public records, see MRE 803(8);

•a child’s statement describing a sexual act that corroborates testimony given by the child during the same proceeding, see MRE 803A(b);¹

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

•residual hearsay exceptions, see MRE 807.

“Exceptions to the hearsay rule are justified by the belief that the hearsay statements are both necessary and inherently trustworthy.” People v Meeboer (After Remand), 439 Mich 310, 322 (1992). However, evidence that falls within a hearsay exception may still be inadmissible if it violates the Confrontation Clause.² People v Dendel (On Second Remand), 289 Mich App 445, 472 (2010) (“[U]nder Crawford,^[3] out-of-court statements are not exempt from confrontation merely because they come within a hearsay exception, including hearsay exceptions traditionally considered to be imbued with indicia of reliability.”).

A.Testimonial Evidence of Threats

1.Threats That Are Not Hearsay

A threat may be a non-assertive verbal act and, thus, not hearsay if it is not offered to prove the truth of the matter asserted. See generally MRE 801(a). Such a threat may, for example, be circumstantial evidence of the declarant’s state of mind, including consciousness of guilt, or it may explain a witness’s inability to identify the defendant in court. See e.g., People v Sholl, 453 Mich 730, 740 (1996).

A threat may also be non-hearsay if it is an admission by a party opponent under MRE 801(d)(2).

In the following cases, a threat against a crime victim or witness was ruled admissible either as an admission by a party-opponent or as evidence offered for a purpose other than to show the truth of the matter asserted (i.e. non-hearsay):

•Sholl, 453 Mich 730 (1996) (statements showed consciousness of guilt):

The defendant was convicted of CSC-III against a woman with whom he was in a dating relationship. Sholl, 453 Mich at 731-732. At trial, the investigating officer testified outside the presence of the jury that, after the trial started, the complainant called him to report that a third party had told her that the defendant had threatened her. Id. at 738-739. The officer further testified outside the jury’s presence that he asked the defendant if he had talked about killing the complainant, in response to which the defendant “acknowledged that, while intoxicated, he ‘probably did say something like that.’” Id. at 739. The trial court ruled that the officer could testify as to statements made to him by the defendant. Id. The officer then testified in the presence of the jury that he asked the defendant if he had threatened to shoot the complainant and that the defendant responded that he “‘probably would have said something like that.’” Id. at 740. The Supreme Court found no error in admission of this evidence, holding:

“A defendant’s threat against a witness is generally admissible. It is conduct that can demonstrate consciousness of guilt.

As the circuit court observed, a threatening remark (while never proper) might in some instances simply reflect the understandable exasperation of a person accused of a crime that the person did not commit. However, it is for the jury to determine the significance of a threat in conjunction with its consideration of the other testimony produced in the case.” Sholl, 453 Mich at 740 (internal citations omitted).

•People v Kowalak (On Remand), 215 Mich App 554 (1996) (admission by party-opponent):

The defendant was charged with first-degree murder for killing his 82-year-old mother. Kowalak, 215 Mich App at 555. At the defendant’s preliminary examination, a witness testified that she had spoken with the victim both by telephone and in person shortly before her death. Id. at 555-556. During these conversations, the victim told the witness that the defendant had threatened to kill the victim. Id. at 556. Applying MRE 801(d)(2), the Court of Appeals concluded that the defendant’s threat to his mother was an admission by a party opponent and thus not hearsay.⁴ Kowalak, 215 Mich App at 556-557.

2.Threats Falling Under Hearsay Exception

MCL 768.27c establishes an exception to the hearsay rule for certain statements purporting “to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.”⁵ MCL 768.27c(1)(a). However, “[n]othing in [MCL 768.27c] shall be construed to abrogate any privilege conferred by law.”⁶ MCL 768.27c(4).

A declarant’s statement may be admitted under MCL 768.27c if all of the following circumstances exist:

“(a) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.

(b) The action in which the evidence is offered under this section is an offense involving domestic violence.

(c) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of a statement made more than 5 years before the filing of the current action or proceeding is inadmissible under this section.

(d) The statement was made under circumstances that would indicate the statement’s trustworthiness.

(e) The statement was made to a law enforcement officer.” MCL 768.27c(1).

“MCL 768.27c contains no requirement that the complainant-declarant be unavailable in order to admit evidence of a statement that otherwise satisfies the statutory requirements.” People v Olney, 327 Mich App 319, 326 (2019) (“[t]he circuit court erred as a matter of law in holding that there is an ‘unavailability’ requirement under MCL 768.27c,” and “consequently abused its discretion when it granted defendant’s motion to quash on that basis.”).

MCL 768.27c(1)(a) “places a factual limitation on the admissibility of statements[,]” and MCL 768.27c(1)(c) “places a temporal limitation on admissibility.” People v Meissner, 294 Mich App 438, 446 (2011). Together, these provisions “indicate that a hearsay statement can be admissible if the declarant made the statement at or near the time the declarant suffered an injury or was threatened with injury.” Id. at 446-447. In Meissner, the victim gave a verbal statement and prepared a written statement for the police that she had been threatened by the defendant (1) on previous occasions, (2) that morning at her home, and (3) again that same day, via text message, after telling the defendant she had contacted the police. Id. at 442-443. The Court of Appeals found that “[t]he [trial] court could . . . determine that [the victim’s] statements met [MCL 768.27c](1)(a) because the statements described text messages that threatened physical injury, and met [MCL 768.27c](1)(c) because [the victim] made the statements at or very near the time she received one or more of the threatening text messages.” Meissner, 294 Mich App at 447.

For purposes of MCL 768.27c(1)(d), “circumstances relevant to the issue of trustworthiness include, but are not limited to, all of the following:

(a) Whether the statement was made in contemplation of pending or anticipated litigation^[7] in which the declarant was interested.

(b) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.

(c) Whether the statement is corroborated by evidence other than statements that are admissible only under this section.” MCL 768.27c(2).

MCL 768.27c(2) expressly states that the court is not limited to the listed factors when determining “circumstances relevant to the issue of trustworthiness[;]” the listed factors are merely “a nonexclusive list of possible circumstances that may demonstrate trustworthiness.” Meissner, 294 Mich App at 448-449.

Notice requirements apply if a prosecutor intends to introduce evidence of a declarant’s statement under MCL 768.27c:

“(3) If the prosecuting attorney intends to offer evidence under [MCL 768.27c], the prosecuting attorney shall disclose the evidence, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, to the defendant not less than 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown.”

B.Present Sense Impression

“The following [is] not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.” MRE 803(1).

The Michigan Supreme Court requires three conditions to be satisfied before evidence may be admitted under the present sense impression exception. People v Hendrickson, 459 Mich 229, 235-236 (1998). In Hendrickson, the Court stated:

“The admission of hearsay evidence as a present sense impression requires satisfaction of three conditions: (1) the statement must provide an explanation or description of the perceived event, (2) the declarant must personally perceive the event, and (3) the explanation or description must be ‘substantially contemporaneous’ with the event.” Hendrickson, 459 Mich at 236.

A slight lapse in time between the event and the description may still satisfy the substantially contemporaneous requirement. Hendrickson, 459 Mich at 236. In Hendrickson, the victim called 911 and explained that she had just been beaten by her husband. Id. at 232. The Court concluded that her phone call satisfied the substantially contemporaneous requirement because the victim’s statement “was that the beating had just taken place” and “the defendant was in the process of leaving the house as the victim spoke.”⁸ Id. at 237. See also People v Chelmicki, 305 Mich App 58, 63 (2014) (“statements [contained in the victim’s police statement] were admissible . . . as a present sense impression” where the “statement provided a description of the events that took place inside the apartment[,] . . . the victim perceived the event personally[, and] . . . the statement was ‘substantially contemporaneous’ with the event, as the evidence showed, at most, a lapse of 15 minutes between the time police entered the apartment and the time the victim wrote the statement[]”).

To establish a foundation for admission of the statement, corroboration (independent evidence of the event) is required. Hendrickson, 459 Mich at 237-238. Sufficient corroboration exists if it “assures the reliability of the statement.” Id. at 237-238. “[T]he sufficiency of the corroboration depends on the particular circumstances of each case.” Id. In Hendrickson, the prosecution sought to introduce photographs of the victim’s injuries as independent evidence of the beating. Id. at 233. The Court concluded that the photographs provided sufficient corroborating evidence of the event because the “photographs show[ed] the victim’s injuries [and] were taken near the time the beating [was] alleged to have occurred. In addition, the injuries depicted in the photographs were consistent with the type of injuries sustained after a beating.” Id. at 239.

C.Excited Utterances

“The following [is] not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(2) Excited Utterance. 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).

There are two requirements that must be met before a statement may be admitted as an excited utterance:

(1) there must be a startling event, and

(2) the statement must be made while still under the excitement caused by the startling event. People v Smith (Larry), 456 Mich 543, 550 (1998).

“There is no express time limit for excited utterances.” People v Walker (Walker I), 265 Mich App 530, 534 (2005), vacated in part on other grounds People v Walker (Walker II), 477 Mich 856 (2006)⁹ (victim’s statements made to a neighbor two hours after the final assault were admissible as excited utterances where the evidence showed that the victim was beaten throughout the night, escaped two hours after the final assault, and was visibly upset, crying, shaking, and hysterical). “[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, 551-553 (1998) (victim’s statement made ten hours after sexual assault was admissible as an excited utterance where the victim’s uncharacteristic actions during the time between the event and the statement “describe[d] a continuing level of stress arising from the assault that precluded any possibility of fabrication”). See also People v Layher, 238 Mich App 573, 584 (1999) (5-year-old victim’s statements made during therapy one week after the alleged assault were admissible as excited utterances where “[t]he[] circumstances, combined with [the] 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[]”). But see People v Gee, 406 Mich 279, 283 (1979), where the Michigan Supreme Court found reversible error in the admission of the complainant’s statements made 12-20 hours after the sexual assault, because the “lapse between event and statement was enough time for consideration of self‐interest[,]” and there was “no plausible explanation for the delay which would excuse the delay and permit an extension of the excited utterance exception to the hearsay rule to these facts.” Id. at 283.

Admission of an excited utterance under 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) 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).

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

“The following [is] not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement 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.” MRE 803(3).

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). A “victim’s state of mind is usually only relevant in homicide cases when self-defense, suicide, or accidental death are raised as defenses to the crime.” People v Smelley, 285 Mich App 314, 325 (2009), vacated in part on other grounds 485 Mich 1019 (2010)¹⁰ (trial court abused its discretion by admitting statements that purported to show the victim’s state of mind before the victim was killed when the victim’s “state of mind was not a significant issue in th[e] case and did not relate to any element of the crime charged or any asserted defense”). See also People v Ortiz, 249 Mich App 297, 307-310 (2001) (victim’s statements of being afraid of the defendant, believing he was stalking her, of his threats to kill her, that she anticipated dying, that she was enforcing the child support order and changing her will, and that she changed the locks on her door after the defendant broke into her home were admissible under MRE 803(3) to show “[e]vidence of the victim’s state of mind, evidence of the victim’s plans, which demonstrated motive (the end of the marriage and the tension between the victim and [the] defendant), and evidence of statements that [the] defendant made to cause the victim fear[, and] . . . [t]hey were relevant to numerous issues in the [first-degree premeditated murder] case, including the issues of motive, deliberation, and premeditation and the issue whether the victim would have engaged in consensual sexual relations with [the] defendant the week before her death”).

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, 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 were relevant to the case and pertained to the declarant’s then‐existing mental or emotional condition. Id. at 18 (child’s statements made to her therapist that she was afraid of her mother because the mother and the mother’s boyfriend yelled, threw things, and engaged in incidents of domestic violence were admissible in termination of parental rights proceeding under MRE 803(3) because the statements pertained to the child’s then-existing mental or emotional condition and relevant to show that the parent-child relationship was disrupted).

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

“The following [is] not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(4) Statement Made for Purposes of Medical Treatment or Diagnosis in Connection with Treatment. 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.” MRE 803(4).

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) (declarant’s statement that his self-inflicted wound occurred after a “fight with his girlfriend” was inadmissible under MRE 803(4) because it was not reasonably necessary for diagnosis and treatment), quoting Meeboer (After Remand), 439 Mich at 322.

1.Trustworthiness: Age of Declarant

In assessing the trustworthiness of a declarant’s statements, Michigan appellate courts have drawn a distinction based on 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). 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; Van Tassel (On Remand), 197 Mich App at 662. To do this, a trial court must “consider the totality of circumstances surrounding the declaration of the out-of-court statement.” Id. at 324. In Meeboer, the Michigan Supreme Court established ten factors to address when considering the totality of the circumstances in cases involving victims under the age of ten:

•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 324-326.

The Meeboer factors have no application in a criminal sexual conduct case involving a complainant over age ten. Van Tassel (On Remand), 197 Mich App at 662. However, to comply with the Michigan Supreme Court remand order, the Van Tassel Court applied the Meeboer factors and concluded that the complainant’s hearsay statements were trustworthy and properly admitted by the trial court. Van Tassel (On Remand), 157 Mich App at 663-664.

For the hearsay exception on statements about sexual acts made by children under age ten, see MRE 803A. For a detailed discussion of MRE 803A, see Section 6.9(I).

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, 432 Mich at 116, a first-degree criminal sexual conduct case, the Michigan Supreme Court overturned the trial court’s decision to admit a psychologist’s testimony regarding 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 stated LaLone “does not preclude admission of statements where an analysis of the totality of the circumstances surrounding the declaration of the hearsay statement supports the underlying requirements of MRE 803(4).” Meeboer (After Remand), 439 Mich at 328.

3.Reasonable Necessity: 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 (CSC) 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) under the following circumstances:

“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 Duenaz, 306 Mich App 85, 96, 97 (2014)

On appeal from his convictions of CSC-I and CSC-II, defendant argued that the trial court abused its discretion in admitting statements that the victim made to an examining physician that implicated defendant in the offenses. The Court of Appeals held that the defendant’s identity as the assailant “‘was reasonably necessary to the victim’s medical diagnosis and treatment[]’” because defendant “was a family friend who managed to take the child with him more than once.” Duenaz, 306 Mich App at 96‐97, quoting Meeboer, 439 Mich at 334.

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

In this CSC-I case, the 13-year-old complainant identified her father as her assailant during a health interview that preceded a medical examination ordered by the trial court in a separate abuse and neglect proceeding. Van Tassel (On Remand), 197 Mich App at 656. The Court held that identification of the assailant was reasonably necessary to the complainant’s medical diagnosis and treatment:

“The fact that child protective services were alerted [after the victim identified her assailant] does not turn the question of the assailant’s identity into an issue of social disposition. The victim was removed from her home and allowed to physically heal. She began psychological therapy, and was at the time of trial receiving therapy. Treatment and removal from an abusive environment is medically beneficial to the victim of a sexual abuse crime and resulted from the victim’s identification of the assailant to her doctor. The questions and answers regarding the identity of her assailant can therefore be regarded as reasonably necessary to this victim’s medical diagnosis and treatment.” Van Tassel, 197 Mich App at 660-661.

F.Recorded Recollection

“The following [is] not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.” MRE 803(5).

The following three conditions must be met for evidence to be admissible under the recorded recollection exception to the hearsay rule:

“(1) the document pertains to matters about which the declarant once had knowledge,

(2) the declarant has an insufficient recollection of those matters at trial, and

(3) the document was made or adopted by the declarant while the matter was fresh in his or her memory.” People v Chelmicki, 305 Mich App 58, 64 (2014), citing People v Dinardo, 290 Mich App 280, 293 (2010).

In Chelmicki, 305 Mich App at 61-62, the victim prepared a written police statement shortly after a domestic violence incident, and at trial, the victim “recalled certain events after reading [her written statement], but otherwise testified that the statement did not refresh her recollection.” The “statements were admissible . . . as a past recollection recorded” because “[t]he police statement pertained to a matter about which the declarant had sufficient personal knowledge, she demonstrated an inability to sufficiently recall those matters at trial, and the police statement was made by the victim while the matter was still fresh in her memory.” Id. at 63-64.

G.Records of a Regularly Conducted Activity

In cases involving crime victims, MRE 803(6) contemplates admission of records such as police reports and medical records concerning the victim.¹¹ Under MRE 803(6), “The following [is] not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(6) Record of a Regularly Conducted Activity. 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.” MRE 803(6).

See Merrow, 458 Mich at 626-628 (despite the medical personnel’s inability to identify the person who provided the medical history, a statement made in the patient’s medical history record regarding the patient’s cause of injury was admissible under MRE 803(6) where the hospital record was kept by the hospital in the regular course of business); People v Jobson, 205 Mich App 708, 713 (1994) (“[police] activity log sheet, which police officers are required to complete, was properly admitted [into evidence under] MRE 803(6)[ and MRE 803(7)][]”).

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) (medical expert’s report lacked trustworthiness of a report generated exclusively for business purposes when the medical expert examined the sexual assault victim and prepared the report in contemplation of trial). “The hearsay exception in MRE 803(6) is based on the inherent trustworthiness of business records[, and t]hat trustworthiness is undermined when the records are prepared in anticipation of litigation.” People v McDaniel, 469 Mich 409, 414 (2003).

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. See MRE 805.

A document that is admissible under MRE 803(6) may be properly authenticated without the introduction of extrinsic evidence. 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.

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) . . . .” People v Dingee, ___ Mich App ___, ___ (2025). 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 ___.

H.Public Records

“The following [is] not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(8) Public Record. A record or statement of a public office 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.”¹² MRE 803(8).

Due to Confrontation Clause concerns, MRE 803(8) precludes the admission of certain police reports in criminal cases. For a detailed discussion of an individual’s Sixth Amendment right to confrontation in a criminal case, see the Michigan Judicial Institutes’s Evidence Benchbook, Chapter 3.

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.” Id. at 554. See also 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. See MRE 805.

I.Child’s Statement About Sexual Act

In criminal and juvenile delinquency proceedings only,¹³ a child’s statement regarding certain sexual acts involving the child is admissible, provided it corroborates the declarant’s testimony during the same proceeding and:

“(1) the declarant was under the age of ten when the statement was made;

(2) the statement is shown to have been spontaneous and without indication of manufacture;

(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance;  

(4) the statement is introduced through the testimony of someone other than the declarant; and

(5) the proponent of the statement makes known to the adverse party the intent to offer it and its particulars sufficiently before the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.

If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.” MRE 803A(b).

1.Spontaneity of the Statement

Generally, in order for a statement to be spontaneous under MRE 803A, “the declarant-victim [must] initiate the subject of sexual abuse.” People v Gursky, 486 Mich 596, 613 (2010). The spontaneity of statements subject to analysis under MRE 803A fall into three groups: (1) purely impulsive statements (those that “‘come out of nowhere’” or “‘out of the blue’”); (2) non sequitur statements (those “made as a result of prompt, plan, or questioning[,]” but “are in some manner atypical, unexpected, or do not logically follow from the prompt”); and (3) statements made in answer to open-ended and nonleading questions but “include answers or information outside the scope of the questions” (these are the most likely to be nonspontaneous and require extra scrutiny). Gursky, 486 Mich at 610-612. To find spontaneity in statements falling into the third category of possible spontaneous statements, “the child must broach the subject of sexual abuse, [and] any questioning or prompts from adults must be nonleading and open-ended[.]” Id. at 626. The Gursky Court emphasized that its holding does not automatically preclude a statement’s admissibility under MRE 803A simply because the statement was made as a result of adult questioning. Gursky, 486 Mich at 614. “When questioning is involved, trial courts must look specifically at the questions posed in order to determine whether the questioning shaped, prompted, suggested, or otherwise implied the answers.” Id. at 615. In Gursky, the facts of the case showed that (1) the victim did not initiate the subject of sexual abuse; (2) the victim “did not come forth with her statements on her own initiative, and thus that the statements were not necessarily products of her creation; and (3) the adult questioning the victim “specifically suggested defendant’s name to [the victim.]” Id. at 616-617. Therefore, the Court concluded that the victim’s statements were not spontaneous and, thus, inadmissible under MRE 803A. Gursky, 486 Mich at 617.

The Gursky Court went on to stress that spontaneity is not the only factor a court must look at in order to determine the admissibility of a statement pursuant to MRE 803A; even after finding that a statement is spontaneous, the trial court “must nevertheless also conduct the separate analyses necessary to determine whether the statement meets the other independent requirements of MRE 803A.” Gursky, 486 Mich at 615-616.

See also People v Dunham, 220 Mich App 268, 272 (1996) (six-year-old victim’s statements during divorce proceedings to the Friend of the Court mediator were properly admitted under MRE 803A where “the victim made the statements in response to the customary, open-ended questions [the mediator] asked of all children of divorcing parents[,] . . . [and] the eight- or nine-month delay in reporting the sexual abuse was excusable on the basis of the victim’s well-grounded fear of [the] defendant[]”).

2.Timing of Statement

A sexual assault victim’s delay in reporting the sexual assault for several days after returning from a trip with the defendant-father was excusable under MRE 803A(3) where the nine-year-old victim feared “reprisal against her father.”People v Hammons, 210 Mich App 554, 558 (1995). See also Dunham, 220 Mich App at 272 (six-year-old victim’s statements during divorce proceedings to the Friend of the Court mediator were properly admitted under MRE 803A where “the victim made the statements in response to the customary, open-ended questions [the mediator] asked of all children of divorcing parents[,] . . . [and] the eight- or nine-month delay in reporting the sexual abuse was excusable on the basis of the victim’s well-grounded fear of [the] defendant[]”).

When evaluating whether a delay in disclosure is excusable under MRE 803A, the Michigan Supreme Court in People v Douglas (Jeffrey) (Douglas II), 496 Mich 557, 589-590 (2014), aff’g in part and rev’g in part People v Douglas (Jeffery) (Douglas I), 296 Mich App 186 (2012), noted, in dicta, that:

“[W]e agree with the observations in Judge Ronayne Krause’s concurring opinion in the Court of Appeals that, when evaluating whether a delay in disclosure is excusable under MRE 803A, courts should bear in mind that ‘MRE 803A(3) requires any circumstance that would be similar in its effect on a victim as fear in inducing a delay in reporting, not a circumstance that is necessarily similar in nature to fear,’ and that ‘[n]othing in the rule even requires that any “other equally effective circumstance” must have been affirmatively created by the defendant.’ Douglas[ I], 296 Mich App at 211 (Ronayne Krause, J., concurring). We need not set forth a list of circumstances that are similar to fear in their effect on a child, as the determination whether such circumstances exist should be done by the trial court on a case-by-case basis.”

3.First Corroborative Statement Requirement

“MRE 803A . . . permits only the first corroborative statement as to each ‘incident that included a sexual act performed with or on the declarant by the defendant.’ Though the [rule] does not define the term ‘incident,’ it is commonly understood to mean ‘an occurrence or event,’ or ‘a distinct piece of action, as in a story.’” Douglas II, 496 Mich at 575, aff’g in part and rev’g in part 296 Mich App 186 (2012) (citation omitted). Consequently, a child-victim’s disclosure to a forensic interviewer of a sexual act that is inadmissible under MRE 803A because it was not the child’s first corroborative statement “does not become admissible under MRE 803A simply because her first disclosure of [a separate] incident followed shortly after it.” Douglas II, 496 Mich at 576 (also holding that the evidence was inadmissible under the residual hearsay exception, MRE 803(24),¹⁴ and ultimately concluding that the evidentiary errors required reversal and a new trial).

However, a statement that is inadmissible under MRE 803A because it is a subsequent corroborative statement, is not precluded from being admitted via another hearsay exception. People v Katt, 468 Mich 272, 294-297 (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)¹⁵).

4.Notice Requirement

The proponent of the MRE 803A statement must notify the adverse party of “the intent to offer it and its particulars sufficiently before the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.” MRE 803A(b)(5). See Dunham, 220 Mich App at 272-273 (finding that “[the] defendant was not prejudiced by the prosecutor’s failure to inform him about her plan to introduce testimony pursuant to [MRE 803A] until the day before trial[ where] . . . [the] defendant should have anticipated the potential testimony because the victim’s mother testified at [the] defendant’s preliminary examination that she became aware of the sexual abuse after the victim spoke with a mediator and because the mediator’s name appeared on the witness list[]”).

J.Statements Made by Unavailable Declarant

In cases involving crime victims, the complaining witness is sometimes unavailable to testify at trial or other court proceedings. In such cases, the prosecutor may seek admission of the witness’s earlier testimony or other statement as substantive evidence at trial under MRE 804(b)(1), MRE 804(b)(3), and MRE 804(b)(6).

A declarant is unavailable when the declarant:

“(1)  is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing, and

(A) the statement’s proponent has been unable, by process or other reasonable means, to procure:

(i) the declarant’s attendance, in the case of a hearsay exception under [MRE 804(b)(1) or MRE 804(b)(6)]; or

(ii) the declarant’s attendance or testimony, in the case of a hearsay exception under [MRE 804(b)(2), MRE 804(b)(3), or MRE 804(b)(4)]; and

(B) in a criminal case, the proponent shows due diligence.

But [MRE 804(a)] does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.” MRE 804(a).

“A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.” MRE 804(a). The plain language of MRE 804(a) “mandates that the court consider whether the conduct of the proponent of the statement was for the purpose of causing the declarant to be unavailable.” People v Lopez, 501 Mich 1044, 1044 (2018) (although the trial court “found that the witness was unavailable because he felt threatened by the prosecutor,” it “did not consider whether the prosecutor intended to cause the declarant to refuse to testify when engaging in that conduct”) (emphasis added).

When declaring a declarant unavailable as a witness under MRE 804(a), the court should “make a record of [the declarant’s] unavailability[.]” People v Garay, 320 Mich App 29, 37 (2017), rev’d in part and vacated in part on other grounds 506 Mich 936 (2020)¹⁶ (while “the trial court’s decision to declare [two child-witnesses] unavailable was within the range of reasonable and principled outcomes[ under MRE 804(a)]” following “testimony at trial regarding the dangerous character of the [witnesses’] neighborhood, [a] Facebook threat [they received], and the [witnesses’] father’s refusal to allow [them] to testify out of fear for their safety show[ed] that the reason for the refusal to testify was self-preservation[,] . . . the better practice would have been to make a record of their unavailability by examining each [witness] as to any threats received and the factors that influenced their refusal to testify[]”).

The following cases set out examples when a declarant has been found to be unavailable:

•People v Garay, 320 Mich App 29 (2017), rev’d in part and vacated in part on other grounds 506 Mich 936 (2020)¹⁷

“The trial court did not abuse its discretion in declaring [two child-witnesses] to be unavailable[]” where the witnesses’ father refused to allow them to testify after they were threatened. Garay, 320 Mich App at 36-37. Although this situation “is not expressly addressed under MRE 804(a), . . . it is of the same character as other situations outlined in the rule.” Garay, 320 Mich App at 36-37 (finding that “[g]iven [the witnesses’] father’s refusal to allow them to testify and his refusal to respond to the trial court’s attempts for contact, [the witnesses] were certainly unavailable according to the ordinary meaning of the word[]”).

•People v Garland, 286 Mich App 1 (2009)

The trial court properly found that the victim was unavailable as defined in MRE 804(a)(4), where “the victim was experiencing a high-risk pregnancy, . . . lived in Virginia, and . . . was unable to fly or travel to Michigan to testify[.]” Garland, 286 Mich App at 7.

• People v Adams, 233 Mich App 652 (1999)

“[A]ll too often, the victims of domestic assault and abuse are fearful and reluctant to assist in the prosecution of their assailants, often as a result of a defendant’s or his [or her] family’s intimidation tactics or out of fear of future reprisals. These fears are too often justified.” Adams, 233 Mich App at 658-659 (holding that the declarant-complainant was unavailable for purposes of MRE 804(a)(2) where she had been previously threatened by individuals connected to the defendant and she abruptly left the courthouse before testifying).

1.Former Testimony

“The following [is] not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial or hearing whether given during the current proceeding or a different one; and

(B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, or cross, or redirect examination.”¹⁸ MRE 804(b)(1).

“Former testimony is admissible at trial under both MRE 804(b)(1) and the Confrontation Clause as long as the witness is unavailable for trial and was subject to cross-examination during the prior testimony.” Garland, 286 Mich App at 6-7 (2009), citing MRE 804(b)(1); Crawford v Washington, 541 US 36, 68 (2004). See also People v Garay, 320 Mich App 29, 39 (2017), reversed in part and vacated in part on other grounds 506 Mich 936 (2020)¹⁹ (“[b]ecause [the witnesses] were unavailable for trial and [the] defendant cross-examined them at the preliminary examination, the admission of their preliminary examination testimony did not violate defendant’s right of confrontation[;]” similarly, admission of the testimony was not an abuse of discretion under MRE 804(b)(1)). For a detailed discussion of a defendant’s right of confrontation, see the Michigan Judicial Institutes’s Evidence Benchbook, Chapter 3.

For former testimony to be admissible under MRE 804(b)(1), two requirements must be met: (1) the proffered testimony must have been made at “another hearing,” and (2) the party against whom the testimony is offered must have “had an opportunity and similar motive to develop the testimony.” People v Farquharson, 274 Mich App 268, 272, 275 (2007). See also MRE 804(b)(1). In Farquharson, 247 Mich App at 272-275, the Court concluded that an investigative subpoena hearing is similar to a grand jury proceeding and thus, constitutes “another hearing” under MRE 804(b)(1). “Whether a party had a similar motive to develop the testimony depends on the similarity of the issues for which the testimony is presented at each proceeding.” Farquharson, 247 Mich App at 275. In remanding the case for a determination on the “similar motive” prong, the Court adopted a nonexhaustive list of factors that courts should use in determining whether a similar motive exists under MRE 804(b)(1):

“(1) whether the party opposing the testimony ‘had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue’;

(2) the nature of the two proceedings—both what is at stake and the applicable burdens of proof; and

(3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and the available but forgone opportunities).” Farquharson, 274 Mich App at 278.

See Garay, 320 Mich App at 37 (“[t]he trial court did not abuse its discretion by admitting the preliminary examination testimony of [the unavailable witnesses] under MRE 804(b)(1)[]” where “there [was] no dispute that the preliminary-examination testimony was given ‘at another hearing of the same or a different proceeding[,]’ . . . [the] defendant had ‘an opportunity and similar motive to develop the testimony’ at the preliminary examination[ in addition to] . . . an ‘interest of substantially similar intensity’ in proving or disproving the testimony of [the witnesses, and] . . . although the burden of proof was lower at the preliminary examination, [the] defendant had a similar motive to cross-examine [the witnesses] at both proceedings . . . to show that their testimony . . . lacked credibility or was not accurate[, a]nd [where the] defendant did, in fact, cross-examine [the witnesses] with regard to their credibility[]”) (internal citations omitted).

2.Statement Under Belief of Impending Death

“The following [is] not excluded by the rule against hearsay if the declarant is unavailable as a witness:

* * *

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.” MRE 804(b)(3).

MRE 804(b)(2)²⁰ permits the admission of statements made by a declarant at a time when the declarant believed his or her death was imminent. The rule does not require that the declarant actually die in order for the statements to be admissible; the declarant needs only to have believed that his or her death was imminent. People v Orr, 275 Mich App 587, 594-596 (2007).

“A declarant’s age alone does not preclude the admission of a dying declaration.” People v Stamper, 480 Mich 1, 5 (2007). In Stamper, the declarant was a four-year-old child who stated that he was dead and identified the defendant as the person who inflicted his fatal injuries. Id. at 3. The Court affirmed admission of the child’s statement, rejecting the defendant’s argument that a four-year-old could not be aware of impending death. Id. at 5. “Whether a child was conscious of his [or her] own impending death must be determined on a case-by-case basis. As with an adult, if the fact show . . . that the child believed that he [or she] was about to die, statements he [or she] made may be proffered as dying declarations.” Id.

3.Statements Made by Declarant Made Unavailable by Opponent

“The following [is] not excluded by the rule against hearsay if the declarant is unavailable as a witness:

* * *

(6) Statement Offered Against a Party That Wrongfully Caused or Encouraged the Declarant’s Unavailability. A statement offered against a party that wrongfully caused—or encouraged the declarant’s unavailability as a witness, and did so intending that result.” MRE 804(b).

“[A d]efendant’s constitutional right to confrontation^[21] is waived under the doctrine of forfeiture by wrongdoing^[22] if hearsay testimony is properly admitted because the declarant’s unavailability was procured by [the] defendant’s wrongdoing.” Jones (Kyle), 270 Mich App at 212-214. However, the doctrine of forfeiture by wrongdoing does not apply to every case in which a defendant’s wrongful act has caused a witness to be unavailable to testify at trial. See Giles v California, 554 US 353 (2008). The doctrine applies only when the witness’s unavailability to testify at trial results from wrongful conduct designed by the defendant for the purpose of preventing the witness’s testimony. Id. at 361 (concluding that admission of the murder victim’s unconfronted statements violated the defendant’s right to confrontation and that the defendant’s act of murdering the victim was not committed for the purpose of preventing her testimony; thus the doctrine of forfeiture by wrongdoing did not apply).

K.Residual Hearsay Exception²³

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.

(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.”

A statement is admissible under MRE 803(24) or MRE 804(b)(7)²⁴ 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)²⁵). 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)²⁶).

See, however, Douglas II, 496 Mich at 578, aff’g in part and rev’g in part 296 Mich App 186 (2012), where the Court rejected the prosecution’s argument that testimony from a forensic interviewer and a video of the interview itself were admissible under MRE 803(24).²⁷ The statements contained in both the testimony and the video did not meet the admissibility criteria of MRE 803(24)²⁸ because the statements were not the most probative evidence reasonably available in light of the fact that the statements made to the interviewer were not the first corroborative statements made by the victim; rather, the victim’s statements to her mother made prior to the forensic interview constituted the “best evidence.” Douglas II, 496 Mich at 577. Moreover, the testimony about the victim’s statements during the interview did not demonstrate circumstantial guarantees of trustworthiness because the statements were not the first corroborative statements, they were delayed, and were not spontaneous, but rather, were given in response to questions posed in order to investigate the victim’s prior disclosure of sexual abuse. Id. at 578-579.