U.S. v. Donaldson, 58 M.J. 477

Core Criminal Law Subjects: Evidence: Hearsay › Excited utterances

1. an otherwise inadmissible hearsay statement is admissible under M.R.E. 803(2), even though the declarant is available as a witness, if (1) the statement relates to a startling event, (2) the declarant makes the statement while under the stress of excitement caused by the startling event, and (3) the statement is spontaneous, excited, or impulsive rather than the product of reflection and deliberation
2. the implicit premise underlying the excited utterance exception is that a person who reacts to a startling event or condition while under the stress of excitement caused thereby will speak truthfully because of the lack of opportunity to fabricate; this premise becomes more tenuous where the exciting influence has dissipated and one has had the opportunity to deliberate or fabricate
3. in determining whether a declarant was under the stress of a startling event at the time of his or her statement to qualify as an excited utterance, courts look to a number of factors, to include: the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement; a lapse of time between a startling event and an utterance, while a factor in determining whether the declarant was under the stress of excitement caused by the event, is not dispositive of that issue
4. as a general proposition, where a statement relating to a startling event does not immediately follow that event, there is a strong presumption against admissibility under M.R.E. 803(2); however, courts have been more flexible in cases in which the declarant is young, particularly where the statement was made during the child's first opportunity alone with a trusted adult
5. statements made by a three-year-old to her mother about indecent acts committed by the accused were admissible as excited utterances, even though 11 to 12 hours had elapsed after the abuse, where the accused had threatened to kill the child and her family if she talked about the abuse and where she was not alone with her mother during the day

Core Criminal Law Subjects: Evidence: Hearsay › Medical exception

1. under M.R.E. 803(4), certain hearsay statements made to medical personnel are admissible even though the declarant is available as a witness, including statements made for the purposes of medical diagnosis or treatment and described medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment
2. M.R.E. 803(4) is not limited to statements made to licensed physicians; statements made to psychologists, social workers, and other health care professionals may well fall within the purview of the medical-treatment exception to the hearsay rule
3. statements offered under M.R.E. 803(4) must satisfy two requirements to be admissible: first the statements must be made for the purposes of medical diagnosis or treatment; and second, the patient must make the statement with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought; while both requirements must be met, the critical question in this inquiry is whether the patient had some expectation of treatment when she talked to the caregivers
4. the key factor in determining whether a particular statement is embraced by the medical-treatment exception is the state of mind or motive of the patient in giving the information to the physician and the expectation or perception of the patient that if he or she gives truthful information, it will help him or her to be healed; because a small child may not be able to articulate that he or she expects some benefit from treatment, where a child is involved, it is often important for their caretakers to explain to them the importance of the treatment in terms that are understandable to the child
5. statements made by a three- year-old to a child clinical psychologist about indecent acts committed by the accused were admissible under the medical-treatment exception where the psychologist told the child that she was a doctor who would help make her feel better and where the child’s mother told her that they were going to see a doctor who would help her get better and get over her nightmares, rages, and crying; there was sufficient evidence to find that the child had an expectation of receiving a medical benefit by talking with the psychologist

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. we review a military judge's ruling on the admissibility of evidence for abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact
2. a military judge’s determination that a patient made a statement for the purpose of medical diagnosis or treatment out of an expectation of receiving medical benefit is a question of fact that we review for clear error
3. a court's factual findings on the existence of circumstantial guarantees of trustworthiness for purposes of the residual hearsay exception are reviewed for clear error; we accord a military judge considerable discretion in admitting evidence as residual hearsay