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Morgan v. Foretich - 846 F.2d 941 (4th Cir. 1988)


Under Fed. R. Evid. 803(4), he two-part test set forth for admitting hearsay statements made for purposes of medical diagnosis or treatment is (1) the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and, (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.

Fed. R. Evid. 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Several factors must be considered to qualify for an exited utterance under Fed. R. Evid. 803(2), including: (1) The lapse of time between the event and the declarations; (2) the age of the declarant; (3) the physical and mental state of the declarant; (4) the characteristics of the event; and (5) the subject matter of the statements.


A mother and daughter brought a cause of action against defendants, father and his parents, for damages arising out of defendants' alleged sexual abuse of plaintiff daughter. At trial, the mother and daughter attempted to introduce out-of-court evidence showing that the daughter's half-sister displayed similar signs of sexual abuse, that the daughter made excited utterances regarding the sexual abuse, and statements made by the daughter to a child psychologist. Both pieces of evidence were excluded and the district court found for the father and his parents. The case was appealed.


Was it proper for the district court to exclude the evidence?




The court reversed the verdict finding in favor of defendants because the district court abused its discretion in excluding certain evidence. The court found that that the proffered evidence of sexual abuse by plaintiff daughter's half-sister was admissible because the evidence was not offered to show the depravity of the father's character, but to establish identity. The court further found that plaintiff daughter's statements to plaintiff mother were admissible as exited utterances because there were many factors of trustworthiness surrounding the statements including plaintiff daughter's young age, which made reflection and fabrication unlikely. Additionally, the circumstances showed that the daughter's statements were made under the stress of the situation. Plaintiff daughter's hearsay statements to her psychologist were also admissible as statements made for purposes of medical diagnosis.

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