Hearsay Exceptions (Part 2)

Other exceptions to the general prohibition against hearsay that might be argued in stalking and harassment cases include:

• Statements for Purposes of Medical Diagnosis or Treatment, Rule 11-803(D): in addition to statements related to diagnosis and treatment, statements can be made "describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

  Prosecution example: a psychologist testifies that "Ms. Mitchell (the alleged victim) came to me to deal with her severe depression which she explained was the result of the defendant having sent her hundreds of explicit and vulgar text and photo messages over the course of four months."

  Defense response: assume that following review of the victim's medical history with the psychologist, it shows a diagnosis of severe depression six months prior to the beginning of the text messages. The defendant might argue the mental condition was preexisting and not caused by the text messaging, no matter how explicit or frequent. •

• Statement Against Interest, Rule 11-804(B)(3): defined as "a statement which was at the time of its making so far contrary to the declarant's…interest, or so far tended to subject the declarant to civil or criminal liability…that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

  Prosecution example: in an aggravated stalking case alleging violations of a domestic violence protective order, a co-worker of defendant testifies "Adam (the defendant) bragged to me that he was purposely scaring his ex-girlfriend by making tons of hang-up phone calls in the middle of the night to get back at her for breaking up with him and getting a restraining order."