Class 18: Hearsay Exceptions for Medical Treatment Statements and Recorded Recollection; The Issue of Hearsay within Hearsay - Mar. 7 Flashcards
May a statement made for purposes of receiving medical diagnosis or treatment be admissible? (Q)
Yes. A statement made for purposes of receiving medical diagnosis or treatment is admissible if it is reasonably pertinent to such treatment and describes medical history, past or present symptoms or sensation, the symptoms’ inception, or the symptoms’ general cause.
(FRE 803(4))
Is a statement of fault generally admissible if it was part of a statement made for medical diagnosis or treatment? (Q)
No. A statement of fault is generally inadmissible if it was part of a statement made for medical diagnosis or treatment.
(FRE 803(4))
Must hearsay statements made for medical treatment or diagnosis be made to a doctor in order to be admissible? (Q)
No. Hearsay statements made for medical treatment or diagnosis need not be made to a doctor in order to be admissible. The statement can be made to a doctor, nurse, ambulance driver, psychologist, social worker, or even a family member.
(FRE 803(4))
A landlord intimidated and harassed his tenants and their child for over a year. The tenants brought a claim for intentional infliction of emotional distress. At trial, the tenants called a family therapist, who provided counseling for the child, to testify regarding the extreme emotional distress the child experienced. According to the therapist’s testimony, the child claimed to have recurring nightmares that the landlord was going to hurt him. The therapist was not licensed to practice medicine. The landlord objected that the testimony was inadmissible hearsay. The tenant countered that, though the statement was hearsay, it was admissible.
How should the court rule on the objection? (Q)
The court should overrule the objection because the child’s statement is admissible. Here, the parties agree that the statement is hearsay, which is inadmissible unless an exclusion or exception applies. A hearsay statement made for medical treatment or diagnosis is admissible if it: (1) describes past or present symptoms, the cause or inception of the symptoms, or the declarant’s medical history and (2) is made for, and reasonably pertinent to, medical diagnosis or treatment. The statement does not need to be made to a doctor; it can be made to any person.
Here, the child’s statement to a family therapist described nightmares about the landlord, which contributed to the child’s emotional symptoms. This, in turn, made the statement pertinent to treatment. Thus, the statement is admissible and the court should overrule the objection.
Why is a statement made for purposes of receiving medical diagnosis or treatment admissible? (Policy Reasons) (Q)
Such a statement is reliable because a person making a statement for the purpose of receiving medical treatment is unlikely to lie.
Does a statement made for purposes of receiving medical diagnosis or treatment need to be made to a medical professional or made by the person needing treatment? (Q)
The statement does not need to be made to a medical professional to be admissible, nor does the statement need to be made by the person needing treatment.
(FRE 803(4))
What is hearsay within hearsay? (Q)
Hearsay within hearsay occurs if a hearsay statement itself references another hearsay statement.
Ex: A police officer’s report is hearsay if offered in court to prove the truth of the matter asserted in the report. If the report also includes information told to the officer by a witness, those witness statements represent another layer of hearsay.
For an entire hearsay-within-hearsay statement to be admissible, must all the hearsay statements be admissible under the same exclusion or exception to the hearsay ban? (Q)
No. A statement containing hearsay within hearsay is admissible if each individual hearsay statement fits some exclusion or exception to the rule against hearsay. However, each individual statement can be admissible under a different exclusion or exception.
Is a recorded recollection admissible despite the hearsay bar? (Q)
Yes. A recorded recollection, also known as a past recollection recorded, is admissible despite the hearsay bar.
(FRE 803(5))
Is a witness’s memory refreshed under the past-recollection-recorded exception to the hearsay rule? (Q)
No. A witness’s memory is not refreshed under the past-recollection-recorded exception to the hearsay rule. Instead, the writing is read or introduced into evidence as substantive proof of the information.
(FRE 803(5))
Is a record made by someone other than the witness admissible as a recorded recollection? (Q)
Yes. A record made by someone other than the witness is admissible as a recorded recollection if the witness adopted the record while the subject matter was fresh in the witness’s mind.
(FRE 803(5))
A defendant was charged with cashing stolen checks. The defendant’s friend told a government agent about the scheme and recounted details provided by the defendant. The agent memorialized the information in a report and the friend signed it. At trial, the prosecutor first called the agent who testified that she spoke with the friend and accurately wrote down the information provided to her by the friend. The prosecutor then called the friend and asked, “Did you have a conversation with the defendant about how the check-cashing scheme works?” The friend replied, “I forget the details, but I told the agent about it. She wrote it down. What I told the agent would have been right; I read and signed her report.” The prosecutor moved to admit the report signed by the friend.
Assuming the report is hearsay, should the court admit the writing as an exhibit as a recorded recollection? (Q)
No. The writing cannot be entered as an exhibit, but it can be read to the jury. A witness can read a recorded recollection to the jury if: (1) he once knew the recorded information but cannot recall it well enough to testify fully and accurately, (2) he made or adopted the record when the matter was fresh in his memory, and (3) the record accurately reflects his knowledge at the time it was made.
Here, the witness testified that he could not remember the details of the conversation. He did not write the note, but adopted it by signature. The witness testified that the report was accurate when made and the agent testified she wrote the report accurately. The witness can therefore read the statement to the jury. However, only the opponent of a recorded recollection can admit the writing as an exhibit. Thus, the court cannot admit the writing an exhibit.
What does the medical diagnosis or treatment exception not cover? (Q)
This exception does not cover statements made by a medical professional to a patient, nor statements ascribing specific blame, unless the statements relate to sexual abuse.
(FRE 803(4))
When is a statement for medical diagnosis or treatment acceptable under the hearsay exceptions? (Q)
A statement made for medical diagnosis or treatment is admissible if it:
(A) is made for, and reasonably pertinent to, medical diagnosis or treatment.
(B) describes past or present symptoms, the cause or inception of the symptoms, or the declarant’s medical history and
(FRE 803(4))
Is a statement regarding the cause of the symptoms generally admissible under the statement for medical diagnosis or treatment hearsay exception? (Q)
Yes. A statement regarding the cause of the symptoms is generally admissible because the statement is pertinent to medical diagnosis or treatment.
(FRE 803(4))
