Photographs and Medical Records as Evidence in Michigan Domestic Violence Cases

Photographs of injuries or of a scene, and records from a hospital or doctor's office, are used as exhibits in Michigan domestic violence trials. A photograph comes in on testimony from someone familiar with what it shows that it is accurate.^[1] Medical records can come in as records of a regularly conducted activity, and what a patient told a provider can come in under the hearsay exception for statements made for medical treatment, within limits.^[6][3]

This page covers the foundation each kind of evidence needs, the limits on statements recorded in a medical chart, and the privileges that protect a patient's information.

When injury evidence matters most

Injury is not an element of ordinary domestic assault. An assault does not have to cause an actual injury, and for a battery it does not matter whether the touching caused an injury.^[7] Photographs and records still matter in those cases, because they can support or undercut what witnesses say.

For aggravated domestic assault, injury is an element. The prosecutor must prove the assault caused a serious or aggravated injury, defined as a physical injury that requires immediate medical treatment or that causes disfigurement, impairment of health, or impairment of a part of the body.^[8] See Aggravated domestic assault and Can you be charged without an injury?

Officers responding to a domestic call are required to prepare a report that includes a description of all injuries sustained by the victim and an explanation of how they were sustained, and, if the victim sought medical attention, information about where the victim was treated.^[9]

Photographs

Foundation

The Domestic Violence Benchbook identifies two issues for photographs: authentication, and relevance weighed against unfair prejudice.^[1][2] On the first, "all that is required for the admission of a photograph is testimony of an individual familiar with the scene photographed that it accurately reflects the scene photographed," and the photographer need not testify.^[1] The person photographed, an officer, a nurse or a relative who saw the injury can each fill that role.

A genuine dispute about whether a photograph is what it is claimed to be, for example about when it was taken, is for the jury.^[10]

Graphic photographs

In People v Mills the Michigan Supreme Court said photographs are not excludable simply because a witness can orally testify about the information they contain, that photographs may be used to corroborate a witness's testimony, and that gruesomeness alone need not cause exclusion. The inquiry is whether the probative value of the photographs is substantially outweighed by unfair prejudice.^[2]

The Court of Appeals applied that approach to a domestic case in People v Davis. Photographs of the complainant lying in a hospital bed with a severely bruised face and wearing a neck brace were properly admitted in a trial for aggravated domestic assault; the court called them highly relevant and probative to establish an essential element of that offense.^[11]

Photographs as corroboration

Photographs can also unlock other evidence. Michigan requires independent evidence of the event before a statement is admitted as a present sense impression, and in People v Hendrickson photographs showing the complainant's injuries, taken near the time of the alleged beating, were sufficient corroboration for her 911 call.^[12] See 911 calls as evidence.

What photographs do not show

A photograph records how something looked at one moment; how an injury happened and who caused it come from testimony. The reverse is also true: the absence of visible injury in a photograph does not answer whether an assault occurred, since injury is not an element.^[7]

Medical records

Getting the records admitted

A record of an act, event, condition, opinion, or diagnosis is not excluded by the hearsay rule if it was made at or near the time by, or from information transmitted by, someone with knowledge; it was kept in the course of a regularly conducted activity; and making the record was a regular practice. Those conditions can be shown by the custodian's testimony or by a certification.^[13] The opponent may show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.^[13]

When a certification is used in place of a live witness, the party offering the record must give the other side reasonable written notice before the trial or hearing and make the record and certification available for inspection, so that the other side has a fair opportunity to challenge them.^[6]

Statements inside the chart

A medical chart contains two different things: what the staff observed and did, and what the patient told them. The second is hearsay within a record. It is admissible only if it conforms with a hearsay exception of its own.^[14]

The exception usually invoked is the one for statements made for medical treatment. A statement qualifies if it is made for, and is reasonably necessary to, medical treatment or diagnosis in connection with treatment, and it describes medical history, past or present symptoms or sensations, their inception, or their general cause.^[3] The reasons courts give for the exception are the patient's self-interested motivation to speak the truth to treating physicians in order to receive proper care, and the reasonable necessity of the statement to diagnosis and treatment.^[15] Such statements are admissible even though the patient is available as a witness.^[15]

"Who did this to you?"

A statement about symptoms and how the injury occurred fits the rule's language more easily than a statement about who was responsible. The Domestic Violence Benchbook notes that when a person seeks treatment after domestic violence, the statements to the treating professional may identify the assailant, and that trial courts may be called upon to determine whether the assailant's identity is reasonably necessary to medical diagnosis or treatment.^[4]

The benchbook's examples do not include an adult domestic assault case in which naming the assailant was held admissible on this ground. In Merrow v Bofferding, the Michigan Supreme Court held inadmissible a patient's statement that his self-inflicted wound occurred after a "fight with his girlfriend," because it was not reasonably necessary for diagnosis and treatment.^[4] The decisions the benchbook cites as admitting statements of identity are child-abuse and sexual-assault cases.^[4] This guide therefore does not state a general rule that an adult patient's naming of a partner to hospital staff is admissible under this exception; it depends on the trial court's findings in the case.

If the patient does not testify, the Confrontation Clause is a further question for any statement that is testimonial. In Michigan a statement is testimonial if it was made under circumstances that would lead an objective witness reasonably to believe it would be available for use at a later trial.^[16] See Hearsay and the right to confront your accuser.

Opinions in records and from medical witnesses

A diagnosis recorded in the ordinary course can be part of a business record.^[13] Opinions recorded in public records are treated more strictly: in People v Shipp, a medical examiner's recorded observations about a body were admissible, but the portions of the autopsy report giving the examiner's conclusion and opinion about the cause of death were improperly admitted under the public-records exception.^[17] When a doctor or nurse testifies in person, opinion testimony is governed by the rule on experts, which is covered in Expert witnesses on domestic violence. Neck injuries and breathing complaints raise particular issues, discussed in Proving or disputing strangulation.

Privilege: who controls medical information?

Except as otherwise provided by law, a person authorized to practice medicine or surgery may not disclose information acquired in attending a patient in a professional character if the information was necessary to enable the person to prescribe or act for the patient.^[18] The privilege belongs to the patient. Only the patient may waive it, and a hospital or physician may not invoke it on the patient's behalf when the patient has no desire to invoke it.^[5]

The statute opens with the words "except as otherwise provided by law," which points to other laws.^[18] Which other Michigan laws require or allow medical providers to report injuries to police is outside the sources this guide relies on, and this page does not describe them.

Three related rules round out the picture:

• Counselors. A confidential communication made in connection with a consultation between a victim and a sexual assault or domestic violence counselor is not admissible in any civil or criminal proceeding without the victim's prior written consent.^[19]
• Defense requests for privileged records. A defendant who shows a good-faith belief, grounded in articulable fact, that there is a reasonable probability the records are likely to contain material information necessary to the defense is entitled to have the judge inspect them privately. If the privilege is absolute and the holder refuses to waive it for that inspection, the court must suppress or strike the privilege holder's testimony.^[20]
• Child protective proceedings. In those proceedings, privileges other than attorney-client and clergy confession are abrogated.^[21]

The spousal privileges are covered separately in Spousal privilege in Michigan.

Forensic medical examinations

People often ask about forensic nurse examinations after an assault. The Michigan sources this guide relies on address them only indirectly, in the sexual assault setting: MCL 768.27b refers to a sexual assault evidence kit having been collected as one basis for admitting an older act.^[22] They do not set out separate evidence rules for a forensic examination in a domestic assault case. The general rules above apply to the examiner's records, to what the patient said during the exam, and to photographs taken there.^[14][1]

Access and privacy

In the criminal case, on request a party must provide a description of, and an opportunity to inspect, tangible physical evidence, including documents and photographs.^[23] A photograph or other visual representation of the victim is exempt from public disclosure under the Freedom of Information Act.^[24] See Discovery in Michigan domestic violence cases.

Practical notes for anyone documenting an injury

• Photograph the injury more than once over several days; bruising changes.
• Include one wide photograph that shows whose body it is and one close photograph, with the date and time recorded.
• Keep the original image files rather than only copies sent through messaging apps.
• Tell the treating provider what hurts and what happened, plainly and accurately. That is what the chart will record.
• The same steps apply to an accused person who was injured. Photographs of the accused's own injuries can be relevant to who did what; see Self-defense law in Michigan.