● Available 24/7Arrested over the holidays? Read what happens nextHoliday OWI arrest? Start here2675 44th St SW #208, Wyoming, MI 49519
FbInYtXIg
SHShawn HaffCriminal Defense Attorney
Call 616-438-6719Call Now
Call 616-438-6719

Michigan Legal Resource Library · Evidence

Statements to Doctors and SANE Nurses in Michigan CSC Cases

Last reviewed against current Michigan law ·27 sources cited

Key points

  • Under MRE 803(4), a statement made for and reasonably necessary to medical treatment, or diagnosis in connection with treatment, that describes medical history, symptoms, their inception or their general cause is not excluded by the rule against hearsay.[1]
  • For a child 10 or younger, the trial court must look at the totality of the circumstances, using ten factors from People v Meeboer, to decide whether the statement is trustworthy.[2][3]
  • In People v Shaw, statements to a pediatrician were held inadmissible under the rule where the exam took place seven years after the last alleged abuse and the complainant was referred by police.[4][5]
  • Whether statements to a sexual assault nurse examiner are "testimonial" for Confrontation Clause purposes depends on the totality of the circumstances.[6]

What a patient tells a doctor or a sexual assault nurse examiner (SANE) is an out-of-court statement, so it is hearsay if offered to prove that what the patient said is true. Michigan's rules of evidence contain an exception for statements made for medical treatment, MRE 803(4), and a statement that fits it "is not excluded by the rule against hearsay."[7][1] Whether a particular statement fits depends on why it was made, what it describes and, for young children, whether the circumstances show it is trustworthy.[1][2]

If you are in immediate danger, call 911.[8] The National Sexual Assault Hotline offers free, confidential support 24/7 at 800-656-HOPE (4673).[9] Michigan's VOICES4 Hotline is free, confidential and anonymous, with advocates available 24/7 by call or text at 855-864-2374.[10]

This page covers the rule's text, the factors courts use for children, the limits shown by People v Shaw, statements that name a person, and the separate Confrontation Clause question. For the examination itself, see the sexual assault forensic exam.

What does MRE 803(4) say?

The rule covers "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."[1] It appears in a list of statements that are not excluded by the rule against hearsay "regardless of whether the declarant is available as a witness."[1] The "declarant" is the person who made the statement.

The wording matters. The rule removes the hearsay objection. It does not say the statement is automatically admitted.[1]

The Sexual Assault Benchbook quotes the Michigan Supreme Court's two reasons for the exception: "the self-interested motivation to speak the truth to treating physicians in order to receive proper medical care," and "the reasonable necessity of the statement to the diagnosis and treatment of the patient."[11]

In sexual assault cases the Court of Appeals has read "medical history" broadly. The benchbook quotes it: "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."[12]

Children: the Meeboer factors

The exception rests on the idea that a patient understands the need to be truthful with a medical provider. Michigan courts draw a line by age. According to the Sexual Assault Benchbook, there is a rebuttable presumption that declarants older than 10 understand the need to speak truthfully to medical personnel, while for declarants 10 and younger the trial court must investigate the circumstances in which the statements were made.[2]

The source of that inquiry is People v Meeboer (After Remand), a 1992 Michigan Supreme Court decision. This page quotes it as the benchbook does. The court considers "the totality of circumstances surrounding the declaration of the out-of-court statement,"[2] using these factors:[3]

  1. "the age and maturity of the declarant"[3]
  2. "the manner in which the statements are elicited (leading questions may undermine the trustworthiness of a statement)"[3]
  3. "the manner in which the statements are phrased (childlike terminology may be evidence of genuineness)"[3]
  4. "use of terminology unexpected of a child of similar age"[3]
  5. "who initiated the examination (prosecutorial initiation may indicate that the examination was not intended for purposes of medical diagnosis and treatment)"[3]
  6. "the timing of the examination in relation to the assault (the child is still suffering pain and distress)"[3]
  7. "the timing of the examination in relation to the trial (involving the purpose of the examination)"[3]
  8. "the type of examination (statements made in the course of treatment for psychological disorders may not be as reliable)"[3]
  9. "the relation of the declarant to the person identified (evidence that the child did not mistake the identity)"[3]
  10. "the existence of or lack of motive to fabricate"[3]

The Court of Appeals has added that "the reliability of the hearsay is strengthened when it is supported by other evidence, including the resulting diagnosis and treatment."[13]

How the factors have been applied

The benchbook summarizes several Court of Appeals decisions. Two show how the factors can point in different directions in the same case:

  • People v Johnson (2016). A six-year-old's statements to a SANE were found trustworthy. The benchbook notes that two factors cut the other way: child protective services initiated the examination, and trial testimony suggested a possible motive to fabricate. The court decided that the totality of the circumstances supported admission.[14]
  • People v Duenaz (2014). An eight-year-old's statements to an emergency physician who directed a child advocacy center were found trustworthy. Although the prosecution initiated the examination, and its purpose may have been in part investigative, that fact "was not dispositive."[15]

Note that the age line here is "10 and younger," while the tender-years rule uses "under the age of ten."[2][16] That rule is explained in the tender-years rule (MRE 803A).

The limit: an examination that is not for treatment (People v Shaw)

People v Shaw, a 2016 Court of Appeals decision, shows where the exception stops. This page describes it through the Sexual Assault Benchbook's account. The court held that a complainant's statements to a pediatrician about alleged sexual abuse "were not made for the purposes of medical treatment and were therefore inadmissible under MRE 803(4)."[5]

Two circumstances are quoted. The examination "did not occur until seven years after the last alleged instance of abuse, thereby minimizing the likelihood that the complainant required treatment."[4] And the complainant "did not seek out [the pediatrician] for gynecological services. Rather, she was specifically referred to [the pediatrician] by the police in conjunction with the police investigation into the allegations of abuse by defendant."[5]

Shaw and Duenaz are both Court of Appeals cases. Read side by side as the benchbook presents them, who arranged the exam is a circumstance to weigh rather than a rule by itself; in Shaw it was combined with a seven-year gap.[4][15]

Statements that name a person

The rule covers statements about the "general cause" of a condition.[1] In People v LaLone the Michigan Supreme Court said "the identity of an assailant cannot fairly be characterized as the 'general cause' of an injury."[17] The benchbook adds that in LaLone the statement was made to a psychologist rather than a physician, which suggested it might be less reliable.[18]

Meeboer took a different view for children. As the benchbook describes it, the Supreme Court determined that a child-declarant's statements of identification are "necessary to adequate medical diagnosis and treatment," and gave reasons: identification "may be necessary where the child has contracted a sexually transmitted disease," and may bear on the assessment of pregnancy and of diseases that cannot be detected in the early stages after an assault.[18]

The Confrontation Clause: is a statement to a SANE "testimonial"?

Clearing the hearsay rule is one question. The constitutional right to confront witnesses is another. The U.S. Supreme Court has said "a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial"; where there is no such primary purpose, admissibility is a matter for the rules of evidence.[19]

For SANE examinations, the Court of Appeals in People v Spangler said a court "must consider the totality of the circumstances of the victim's statements and decide whether the circumstances objectively indicated that the statements would be available for use in a later prosecution or that the primary purpose of the SANE's questioning was to establish past events potentially relevant to a later prosecution rather than to meet an ongoing emergency."[6]

Spangler lists thirteen nonexhaustive indicia. They include:[20]

  • the reason the patient came to the SANE, and the length of time between the abuse and the visit;[20]
  • whether the SANE conducted a medical examination and provided or recommended treatment;[20]
  • whether the SANE took photographs or collected other evidence;[20]
  • whether a forensic form was completed and whether release or authorization forms were signed;[20]
  • if and when law enforcement became involved, and how;[20]
  • how SANEs are used by the particular hospital or facility.[20]

For testimonial evidence, the Michigan Supreme Court has said the face-to-face requirement may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine.[21] The general law on testimonial statements is explained in the sister guide's page on hearsay and the Confrontation Clause. The Court of Appeals has also held that the right of confrontation does not apply at a preliminary examination.[22]

Medical records and the provider's own testimony

A written medical record raises a second layer of hearsay. A record of a regularly conducted activity is not excluded by the rule against hearsay if the conditions of MRE 803(6) are met, but the Sexual Assault Benchbook notes that "every statement contained in the document may not be admissible": a hearsay statement inside the record comes in only if it qualifies under an exception or is not hearsay.[23] At a preliminary examination a different, statutory rule allows certain reports, including a medical report, without the author's testimony.[24]

What the patient said is one thing; what the provider may say as an expert is another. An examining physician may not testify that a complainant was sexually assaulted, or has been diagnosed with sexual abuse, without physical evidence that corroborates the account; the Michigan Supreme Court so held in People v Harbison, the case decided in the same opinion as People v Thorpe.[25][26] Those limits are set out in expert witnesses in child sexual abuse cases.

Whether the defense can obtain medical or counseling records, and the privileges that protect them, are covered in access to counseling and medical records. Related pages: forensic interviews of children, child witnesses in Michigan courts and what to expect as a witness.

Common questions

Can a nurse or doctor repeat in court what a patient said about a sexual assault?

It depends on why the statement was made and what it describes. MRE 803(4) covers a statement that is made for, and is reasonably necessary to, medical treatment or diagnosis in connection with treatment, and that describes medical history, symptoms or sensations, their inception, or their general cause. A statement that fits is not excluded by the rule against hearsay.[1]

Does it matter that police or CPS arranged the medical exam?

It is one consideration. Who initiated the examination is among the Meeboer factors for young children.[3] In People v Shaw a police referral seven years after the last alleged abuse led the court to find the statements were not made for medical treatment.[5][4] In People v Duenaz, by contrast, the prosecution's initiation of the exam was described as not dispositive.[15]

Can the provider testify about who the patient said did it?

The Michigan Supreme Court said in People v LaLone that "the identity of an assailant cannot fairly be characterized as the 'general cause' of an injury."[17] In People v Meeboer, as the Sexual Assault Benchbook describes it, the Court determined that a child's statements of identification are necessary to adequate medical diagnosis and treatment.[18]

What is a SANE?

The Sexual Assault Benchbook quotes a hospital program's description: a sexual assault nurse examiner is a registered nurse specially trained to provide care to sexual assault patients, who conducts medical forensic examinations and can serve as an expert witness.[27]

What if the patient does not testify at trial?

Then the Confrontation Clause question becomes important. A statement falls within that clause only if its primary purpose was testimonial.[19] For statements to a SANE, the Court of Appeals has said courts look at the totality of the circumstances, including whether the questioning was meant to establish past events for a later prosecution rather than to meet an ongoing emergency.[6]

Sources

  1. MRE 803(4) — Michigan Courts
  2. People v Garland, 286 Mich App 1, 9 (2009); People v Meeboer (After Remand), 439 Mich 310, 324, 326 (1992), as described in Sexual Assault Benchbook § 6.8(B)(2)(a) — Michigan Courts
  3. People v Meeboer (After Remand), 439 Mich 310, 324-326 (1992); People v Garland, 286 Mich App 1, 9 (2009) — Michigan Courts
  4. People v Shaw, 315 Mich App 668, 675 (2016) — Michigan Courts
  5. People v Shaw, 315 Mich App 668, 675 (2016), as described in Sexual Assault Benchbook § 6.8(B)(2) — Michigan Courts
  6. People v Spangler, 285 Mich App 136, 154-156 (2009) — Michigan Courts
  7. MRE 801(c); MRE 802 — Michigan Courts
  8. U.S. Department of Justice, Office on Violence Against Women, "Sexual Assault" — justice.gov
  9. RAINN, home page — rainn.org
  10. Michigan Coalition to End Domestic and Sexual Violence (MCEDSV), Hotline page — mcedsv.org
  11. Merrow v Bofferding, 458 Mich 617, 629 (1998), as quoted in Sexual Assault Benchbook § 6.8(B)(2) — Michigan Courts
  12. MRE 803(4); People v Mahone, 294 Mich App 208, 215 (2011) — Michigan Courts
  13. People v McElhaney, 215 Mich App 269, 282 (1996), as quoted in Sexual Assault Benchbook § 6.8(B)(2)(a) — Michigan Courts
  14. People v Johnson, 315 Mich App 163, 194-195 (2016), as described in Sexual Assault Benchbook § 6.8(B)(2)(a) — Michigan Courts
  15. People v Duenaz, 306 Mich App 85, 94, 96-97 (2014), as described in Sexual Assault Benchbook § 6.8(B)(2)(a) — Michigan Courts
  16. MRE 803A(a)-(b) — Michigan Courts
  17. People v LaLone, 432 Mich 103, 113 (1989); People v Meeboer (After Remand), 439 Mich 310, 322 (1992) — Michigan Courts
  18. People v LaLone, 432 Mich 103, 113-114 (1989); People v Meeboer (After Remand), 439 Mich 310, 322, 328-329 (1992), as described in Sexual Assault Benchbook § 6.8(B)(2)(b) — Michigan Courts
  19. Ohio v Clark, 576 US 237, 245 (2015), as quoted in Sexual Assault Benchbook § 6.12 — Michigan Courts
  20. People v Spangler, 285 Mich App 136, 155-156 (2009), as quoted in Sexual Assault Benchbook § 6.12(B) — Michigan Courts
  21. People v Jemison, 505 Mich 352, 365-366 (2020) — Michigan Courts
  22. People v Olney, 327 Mich App 319, 331 (2019) — Michigan Courts
  23. MRE 803(6); Merrow v Bofferding, 458 Mich 617, 626-627 (1998); MRE 805, as described in Sexual Assault Benchbook § 6.8(B)(3) — Michigan Courts
  24. MCL 766.11b(1) — Michigan Legislature
  25. People v Thorpe and People v Harbison, 504 Mich 230, 235, 262, 264 (2019) — Michigan Courts
  26. People v Thorpe and People v Harbison, 504 Mich 230, 235 (2019); People v Smith, 425 Mich 98 (1986) — courtlistener.com
  27. People v Brown, 326 Mich App 185, 196 (2018), as quoted in Sexual Assault Benchbook § 7.7 — Michigan Courts

This page is general legal information about Michigan law, published by the office of Attorney Shawn Haff. It is not legal advice and reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts — check the sources linked above and talk to a licensed Michigan attorney about your situation. If you are in danger, call 911. The National Sexual Assault Hotline is 1-800-656-4673.

Facing charges? Don’t wait. Call now.

The sooner I’m involved in your case, the more options I have to protect you. The consultation is free, and I answer 24/7.

616-438-6719Call For A Free ConsultationFill Out My Online Form