Under MRE 805, hearsay within hearsay is excluded where no foundation has been established to bring each independent hearsay statement within a hearsay exception. See In re Freiburger, 153 Mich. App. 251, 260; 395 N.W.2d 300 (1986). Although the trial court agreed with plaintiff's counsel that the exhibits were replete with multiple hearsay statements within hearsay, the court nevertheless overruled plaintiff's timely objection.
While this decision preceded Renville, it provided essentially the same analysis and relied upon Iron Shell. In re Freiburger, 153 Mich. App. 251; 395 N.W.2d 300 (1986), followed Wilkins, as did In re Rinesmith, 144 Mich. App. 475; 376 N.W.2d 139 (1985), although the latter involved a far more spontaneous type of statement by the victim. Other Court of Appeals opinions have cited Wilkins, but those cases did not involve statements identifying the defendant as the guilty party, e.g., People v Skinner, 153 Mich. App. 815; 396 N.W.2d 548 (1986); People v Zysk, 149 Mich. App. 452; 386 N.W.2d 213 (1986); People v Creith, 151 Mich. App. 217, 226-227; 390 N.W.2d 234 (1986).
"MRE 803(4) is not by its terms limited solely to statements made for purposes of medical treatment by physicians and we decline to read the rule so narrowly." Galli v Reutter, 148 Mich App 313, 318; 384 NW2d 43 (1985); See also In re Freiburger, 153 Mich App 251; 395 NW2d 300 (1986) (social worker) (abrogated in part by People v LaLone, 432 Mich. 103, 437 NW2d 611 (1989); People v Mahone, 294 Mich App 208; 816 NW2d 436 (2011); People v McElhaney, 215 Mich App 269, 279; 545 NW2d 2d 18 (1996) (physician's assistant); People v Skinner, 153 Mich App 815; 396 NW2d 548 (1986) (psychologist); United States v Kappell, 418 F3d 550 (CA 6, 2005) (social worker); People v Zysk, 149 Mich App 452; 386 NW2d 213 (1986) (nurse). MRE 803(4) provides as follows:
" While it is true that a psychologist, unlike a psychiatrist, is not a medical doctor, we do not believe that the criminal sexual conduct statute was intended to narrowly apply only to medical doctors. The prosecutor's reliance on In re Freiburger, 153 Mich. App. 251; 395 N.W.2d 300 (1986), is misplaced. Freiburger merely notes that psychiatry is a branch of medicine. Id. at 257.
MCR 2.507(H); In re Freiburger, 153 Mich. App. 251, 261; 395 N.W.2d 300 (1986). Affirmed.
The defendant's argument that the expert's testimony should have been excluded as hearsay is without merit because the statements were made by the victim to the expert as part of her diagnosis and treatment. In re Freiburger, 153 Mich. App. 251, 257; 395 N.W.2d 300 (1986); MRE 803(4). Secondly, although the expert did vouch for the victim's veracity, we consider this error harmless in light of the very thorough and repeated curative instruction given to the jury.
Defendant posed his argument using the language of FRE 803(4) rather than the "reasonably necessary" language of MRE 803(4), an error which the Zysk opinion did not note or correct, an oversight perhaps induced by language in Wilkins, quoted at p 457 of Zysk, that "it must be reasonable," rather than reasonably necessary, "for the physician to rely on the information in diagnosis and treatment."In re Freiburger, 153 Mich. App. 251; 395 N.W.2d 300 (1986), was a parental rights termination appeal wherein the appellant-father allegedly sexually abused his daughter. A "psychiatric social worker" was allowed to testify to nonverbal hearsay, a demonstration using so-called anatomically correct dolls, by the daughter as to her father's acts and such testimony was held admissible under MRE 803(4) and Wilkins.
Thus, with the revelation that the victim's injury was caused by sexual abuse, the fact that the abuse was inflicted by a member of the victim's family was reasonably necessary to obtain relief. In the other termination case, In re Freiburger, 153 Mich. App. 251; 395 N.W.2d 300 (1986), this Court found that statements by a victim to a psychiatric social worker were admissible under MRE 803(4). The Court reasoned that, since the victim suffered sexual abuse, the statements concerning the person who inflicted that abuse were reasonably necessary for treatment and diagnosis of the resulting emotional and behavior problems.
MCR 2.507(H); In re Freiburger, 153 Mich. App. 251, 261; 395 N.W.2d 300 (1986). Here, the parties requested and were granted a court order extending the discovery period for three months.
Whitley, supra. See also, In re Freiburger, 153 Mich. App. 251, 262; 395 N.W.2d 300 (1986). Respondent-mother had the right to have petitioner prove neglect by clear and convincing evidence.