Domestic Diversions

Catch-all hearsay exception

The Michigan Court of Appeals is publishing People v. Geno (Case No. 241768; April 27, 2004). The court affirmed the admission of hearsay under the catch-all exception, MRE 803(24). This exception was added in 1996 to correspond to Federal Rule of Evidence 803(24), now FRE 807.

Owens writes (excxerpt):
MRE 803(24) provides a residual or “catch-all” exception to the hearsay rule, which allows for the admission of “[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness.” Our Supreme Court, in People v Katt, 468 Mich 272, 279; 662 NW2d 12 (2003), explained that a statement offered under MRE 803(24) must not be covered by any other MRE 803 hearsay exception.

Furthermore, admission of a statement under MRE 803(24) initially requires the establishment of four elements:

(1) it must have circumstantial guarantees of trustworthiness equal to the categorical exceptions, (2) it must tend to establish a material fact, (3) it must be the most probative evidence on that fact that the offering party could produce through reasonable efforts, and (4) its admission must serve the interests of justice. Also, the offering party must give advance notice of intent to introduce the evidence.

The statement in this case does not fall within any other MRE 803 hearsay exception and it satisfies the four MRE 803(24) factors as listed in Katt. The victim’s statement was made while the executive director was assisting the child to use the toilet (at the child’s request) and it was made in response to a non-accusatory question. After observing blood on the child’s clothing, the director merely asked if the child had an “owie.” This question did not suggest that the child had received an injury from another person – specifically not one from defendant. This situation was thus similar to a statement of a then-existing mental, emotional, or physical condition, MRE 803(3), or a statement made for the purposes of medical treatment or medical diagnosis in connection with treatment, MRE 803(4). The statement satisfied the second factor because it tended to establish a material fact – that defendant had molested the child. Because the child herself was too young to testify and because it appears this was the child’s first statement concerning the source of her injury, this evidence was the most probative that the prosecutor could offer; therefore, the third factor was satisfied. The fourth factor is also satisfied because the statement satisfies the first three factors and admission of this statement – thereby providing the factfinder with reliable and probative evidence that would otherwise be excluded solely because of the age of the victim – would not endanger the interests of justice. Katt, supra at 296.

Finally, the executive director was listed as a witness, the issue was raised before trial, a pretrial evidentiary hearing was held at which the director testified concerning the child’s statement and the circumstances under which it was made, and the trial court ruled that the statement was admissible. Defendant therefore had notice, in advance of trial, of the prosecutor’s “intention to offer the statement and the particulars of it, including the name and address of the declarant.” MRE 803(24); Katt, supra at 279.

In Lee, supra, a panel of this Court explained what factors should be reviewed in determining whether certain statements have “particularized guarantees of trustworthiness” as demonstrated by consideration of “the totality of the circumstances.” Id. at 174, quoting Idaho v Wright, 497 US 805, 819; 110 S Ct 3139; 111 L Ed 2d 638 (1990). The factors include:

(1) the spontaneity of the statements . . ., (2) the consistency of the statements . . ., (3) lack of motive to fabricate or lack of bias . . ., (4) the reason the declarant cannot testify . . ., (5) the voluntariness of the statements, i.e., whether they were made in response to leading questions or made under undue influence . . ., (6) personal knowledge of the declarant about the matter on which he spoke . . ., (7) to whom the statements were made . . ., and (8) the time frame within the which the statements were made . . . . [Lee, supra at 178, citations omitted.]

A review of the record confirms the trial court’s findings regarding these factors. The executive director merely asked the victim, “Do you have an owie?” Without any further questioning, the victim replied, “Dale hurts me here.” There is no evidence that the victim made any statement inconsistent with her statement that defendant hurt her. The victim cannot testify because of her age; she does not qualify as a witness under MRE 601. The victim made the statements to a professional, who has training in child assessments and interviews, and they were not made in the context of an interview, but rather while the director was assisting the child to use the bathroom. Further, the statement was made only a couple weeks after the crime took place.

The only real concern that defendant points to on appeal is that the victim’s father may have had a motive to influence the victim to make the statement, which would go to the factor concerned with a motive to fabricate or bias. However, there is simply no evidence on the record to support defendant’s suggestion. Accordingly, we find that the trial court did not abuse its discretion in admitting the hearsay statements under MRE 803 (24).

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