Hearsay Exception #4 – Statements Made for the Purpose of Medical Diagnosis or Treatment

June 11, 2014

The fourth hearsay exception found in Texas Rules of Evidence 803 pertains statements made for the purpose of receiving a medical diagnosis or treatment. In order to fall within this exception, the statement must describe:

  • the declarant’s medical history,
  • past or present symptoms, pain, sensations, or
  • the inception or general character of the cause or external source of such symptoms, pain or sensations,

and,

  • as the name of the exception suggests, the statement must be reasonably pertinent to diagnosis or treatment.

As with all hearsay exceptions, the rationale behind this particular exception is deeply embedded in the presumption of trustworthiness that such statements carry. In most cases, the desire for an accurate medical diagnosis and effective treatment, coupled with the understanding that such diagnosis or treatment will depend in part upon what the patient says, is thought to override any motive to lie. A fact reliable enough to serve as the basis for a diagnosis should also be reliable enough to escape hearsay proscription.

When considering the admissibility of such statements, a two-part test is applied:

  1. Whether the declarant’s motive is consistent with the purpose of the rule, and
  2. Whether it was reasonable for the statement to be relied upon for the purpose of diagnosis or treatment.

There are two nuances in the rule that are also worthy of note – statements made during ongoing treatment and statements made to non-medical personnel.

Ongoing Treatment:

The second prong of the test becomes the critical factor in analyzing statements made during ongoing or long-term treatment. Once diagnosis has been made and treatment has begun, the rationale behind this exception may disappear. Because the reports and comments made by a patient during an extended course of treatment may be rooted in different motivations, e.g., denial, deception or secondary gain, or may be influenced by the treatment process itself, these statements may not carry with them the presumption of veracity which forms the basis for this exception. In order for the hearsay exception to apply in this context, the proponent must demonstrate two things:

  1. The truth-telling was a vital component of the particular course of therapy or treatment involved; and
  2. That it is readily apparent that the declarant was aware that this was the case.

Otherwise, in the circumstance of ongoing treatment, the justification for admitting the out-of-court statement over a valid hearsay objection has been held to be simply too tenuous.

Statements Made to Non-Medical Personnel:

One aspect of the rule which is not self-evident is the broad scope of witnesses to which this hearsay exception may be applied. The language of the rule itself does not require that the statement be made to a medical provider, but rather for the purpose of medical diagnosis or treatment. Therefore, under the plain language of the rule, the witness need not be a physician or have any medical training whatsoever. Over the years, the exception has been applied to statements made to psychologists, therapists, licensed professional counselors, social workers, hospital attendants and ambulance drivers. But, under certain circumstances, the exception may extend to friends and family members – or even strangers – if other requisites are present.

The essential qualification expressed in the rule is the declarant’s belief that the statement made will ultimately be utilized in diagnosis or treatment of a condition from which the declarant suffers. The selfish motive for truthfulness under circumstances where deception would likely result in misdiagnosis or error in treatment is sufficient to render such a statement likely trustworthy. That the witness may be a medical professional, or somehow associated with the medical profession, is no more than a circumstance tending to demonstrate that the declarant’s purpose was in fact to obtain medical help for himself. A declarant’s statement made to a non-medical professional under circumstances that show he expects or hopes it will be relayed to a medical professional as pertinent to diagnosis or treatment would be admissible under the rule, even though the witness who actually heard the statement is not a medical professional himself.

- Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas

 

 


Silence as Evidence

August 21, 2011

Earth Day,  1971.  Keep America Beautiful launches a TV ad featuring scene-after-scene of polluted rivers, trash-strewn highways, mountainous landfills and billowing industrial smokestacks, ending with a close-up of an American Indian with a single tear flowing down his cheek.  Not a word was spoken during that 60-second span, yet anyone who saw it is unlikely to ever forget the message.  In fact, even today that commercial is considered one of the most powerful and successful ad campaigns of all time, demonstrating how silence sometimes speaks louder than words.

There are two basic types of silence which are of concern in evidentiary law.  The last blog focused upon mere silence accompanied by no other conduct which would indicate an intention to communicate.  As discussed, under certain circumstances, this type of silence is admissible as an admission.

The second type of silence is nonverbal conduct which substitutes for a verbal expression.  This often involves facial expressions or gestures, such as the single tear rolling down the cheek, the pointing of a finger or the nod of a head.  These forms of nonverbal communication may also, under certain circumstances, be admissible, but because they are meant to substitute for verbal communication, they are admissible only if the hearsay objection can be overcome.

Texas Rules of Evidence 801(d) defines hearsay as “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”  At first blush, this rule would not encompass nonverbal acts.  However, Rule 801(a)(2) defines “statement” to include “nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.”  Therefore, when nonverbal conduct is intended to substitute for verbal expression, it will be treated as though the words implied by the nonverbal conduct were actually spoken.  If the conduct or gesture was made out of court and is offered for the truth of the matter inferred by it, then it is subject to the hearsay bar.

Take note, however, that a nonverbal expression is not a substitute for verbal expression unless it was intended to be one.  Both the Texas Rules and the Federal Rules of Evidence provide that nonverbal expressions are considered hearsay only when the nonverbal conduct was “intended as a substitute for verbal expression” or “intended as an assertion,” respectively.  TRE 801, FRE 801.  In fact, this may be the proponent’s best response to a hearsay objection, i.e., that the nonverbal act was not intended as a verbal expression. The burden is on the opponent of the evidence to prove intent, and doubts are generally resolved in favor of admissibility.

There are two other ways for the proponent of the evidence to respond to the hearsay objection.  The first is to argue that the nonverbal statement is not, by definition, hearsay.  The three most common non-hearsay situations are:

  1. when it’s not offered for the truth of the matter asserted — TRE (801)(d);
  2. when it is a prior inconsistent statement — TRE 801(e)(1); and
  3. when it is made by a party-opponent — TRE 801(e)(2).

Even if the nonverbal communication does fit within the definition of hearsay, it still may be admissible as a hearsay exception.  Rule 803 provides a laundry list of exceptions, but those most readily-applicable to nonverbal communication are:

  1. present sense impressions — TRE 803(1);
  2.  excited utterances — TRE 803(2);
  3. statements of existing mental, emotional or physical condition — TRE 803(3);
  4.  statements for the purpose of medical treatment — TRE 803(4); and
  5. statements against interest — TRE 803(24).

If a nonverbal communication falls within one of these, or any other, hearsay exceptions, then it is admissible into evidence as a hearsay exception.

From the opponent’s viewpoint, assuming the proponent has articulated one of these grounds to support his theory of admissibility, then the evidence may still be subject to a Rule 403 objection (probative value substantially outweighed by prejudice, confusion, etc.).  However, Rule 403 should be the argument of last resort. After all, the proponent’s theory of admissibility should not necessarily be conceded, even if it appears facially meritorious.

Many proffers of otherwise hearsay statements on either of the two above-mentioned grounds — as non-hearsay or as a hearsay exception — simply cannot withstand close scrutiny.  For example, an attorney shouldn’t be so quick to accept a proponent’s argument that the statement is offered, not for its truth, but to show motive, when motive isn’t a relevant issue in the case.  Nor, for example, should it be conceded that a gesture made immediately after a traumatic event would fall within the excited utterance exception, absent any supporting evidence that the nonverbal gesture was a spontaneous reaction which was actually related to the event itself, two required elements to prove up an excited utterance exception.

For those who prefer a step-by-step approach to the process of offering and objecting to nonverbal communication:

  1.  The nonverbal act or gesture is offered into evidence.
  2. An objection is lodged that the nonverbal communication was intended as a substitute for verbal expression and is, therefore, inadmissible hearsay. (Without a timely hearsay objection, the evidence is admissible with full probative value, pursuant to TRE 802.)
  3. The proponent of the evidence argues that the nonverbal statement:  (a) was not made with an intention to substitute for verbal expression; (b) is, by definition, not hearsay; or (c) is admissible under one of the hearsay exceptions.
  4. The opponent challenges the proponent’s theory of admissibility, or makes a 403 objection, if applicable.
  5. Await the trial court’s ruling on the matter.

(Practice Note:  As for Step 5, be careful to avoid any nonverbal communication on your own  part.  Neither the dramatic rolling of eyes when you lose nor high-fives when you win are tolerated in most courtrooms.)

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Limine Motions – Their Uses And Limitations

July 9, 2011

I can’t think about that right now.  If I do, I’ll go crazy.  I’ll think about that tomorrow.
- Scarlett O’Hara

Limine motions use a Scarlett O’Hara approach to evidentiary problem-solving  –  at best, the most they accomplish is putting off the ultimate decision for another day.  No matter whether a limine motion is granted or denied, no final ruling has been made on the admissibility of any evidence whatsoever.  A limine order simply establishes the ground rules by which an offer of evidence can later be made.  Because of this, no limine ruling will ever be considered error or grounds for reversal on appeal.  Understanding this concept is a key component to learning how to most effectively use this evidentiary tool.

It is also important to understand the two basic ground rules which a limine order puts into play.  They are simply this:  If the limine motion is granted, the proponent of evidence must first approach the bench for a ruling outside the jury’s presence before referring to the matter in front of the jury.  If the limine motion is denied, the proponent of the evidence may offer that particular evidence at trial just like any other piece of evidence.

Keeping these broad concepts in mind, when making or responding to a limine motion, here are the basic guidelines:

  • Rules:  Limine motions are creatures of common law.  Because in Texas there are no procedural rules which govern their use, attornneys should generally look to case law for guidance on substantive issues concerning limine rulings, and look to local rules for guidance on deadlines and other procedural aspects of getting them filed and heard.
  • Purpose:   Motions in limine are best used for situations involving inflammatory or highly prejudicial facts of questionable admissibility.  It is an exceptionally good method of identifying in advance evidentiary situations which invoke Rule 404 of the Texas Rules of Evidence – evidence, which although relevant, may be excluded because its probative value is outweighed by the risk of unfair prejudice.  A limine order keeps the skunk out of the jury box until the court has made a TRE 404 determination on whether the evidence can come in.  Because this is the essential purpose of the rule, many judges are disinclined to waste time considering limine requests on more mundane matters, absent an agreement between the parties which can be enforced without argument on the point.
  • Preserving Error:  Never rely on a limine ruling to preserve error — it doesn’t.  If the judge denies a motion in limine, then the objecting party must act just as though the limine motion were never filed at all.  At the time the objectionable evidence is offered, a timely, specific objection must be made and a ruling must be obtained thereon.  If the judge grants the motion, the proponent of the evidence must approach the bench outside the hearing and presence of the jury, make an offer of the evidence and get a ruling on the offer.  Oftentimes these offers are made during a bench conference or during a break when the court reporter is not recording the proceedings.  No error is preserved if no record is made of the offer and ruling.  It is also important to remember that error is not preserved unless this offer is made before the jury is charged (even if the parties agree otherwise).  
  • Violations:  The appropriate remedy for a limine violation is contempt of court, which is punishable by up to a $500 fine, a 6-month imprisonment, or both.   Because contempt (of court order) is the appropriate remedy for a limine violation, it is important to have a limine order actually entered.  Therefore, a prudent attorney will provide the judge with an order to sign immediately after the court rules on the limine motion.  Without a written order, contempt may not be available as a remedy.  However, a judge may also grant a mistrial in response to a limine order violation. 
  • Persuading the Court to Grant the Motion:  Given the fact that many courts don’t allocate much time to hear limine arguments, don’t bury an important limine issue among voluminous boilerplate requests.  Pick the most important issues and focus on them.  Don’t wait until the last minute to file the limine motion.  Absent a local rule governing their use, limine motions may be filed at any time, even after a trial has commenced.  But waiting that late is not advisable.  If a limine motion is important enough to file, then it’s important enough to be filed early and heard well in advance of voir dire.  This is especially important if the admissibility issue is unique or complex.  The chances of having a limine motion granted increase if the judge has had ample time to consider the issue, arguments and perhaps briefing.  Finally, since many limine issues cut both ways, obtaining agreement from opposing counsel on limine issues which are clearly appropriate and mutually beneficial is the easiest way to ensure that your motion is granted. 
  • Persuading the Court to Deny a Motion:  Most judges frown on conducting jury trials in piecemeal or disjointed fashion.  If an opponent’s limine motion would require frequent bench conferences outside the jury’s presence on non-inflammatory issues, an attorney may argue that this would impair the effective and efficient presentation of evidence in the case.  So, if the matters raised in the limine motion aren’t potentially prejudicial or inflammatory (such as an attempt to call a non-disclosed witness), then it may be argued that these matters are the type which would best be ruled upon in the ordinary course of trial.
  • When Not to File:  In a bench trial, for obvious reasons, although, believe it or not, I’ve actually seen that attempted a few times.

– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


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