Should Statements Made by Patients During Psychotherapy Fall within the Medical Treatment Hearsay Exception? An Interdisciplinary Critique

Abstract

This article challenges the prevailing view of courts that statements made to a mental health clinician are the functional equivalent of statements made for the purpose of any other kind of treatment and should therefore be admitted under the hearsay exception for statements made for the purposes of medical diagnosis or treatment. The article takes the position that, because of the nature of psychotherapy, patient statements to therapists are not sufficiently reliable to be included in the hearsay exception.

This use of the "medical treatment exception," which began with statements of child victims in abuse cases, has been extended to adult statements in many kinds of cases. The article examines statements by adults in psychotherapy and uses an interdisciplinary, mental-health-based analysis of the reliability of patient statements in that context. It demonstrates that statements made by those undergoing psychotherapy are fundamentally different from statements made by patients seeking other kinds of medical treatment and simply do not carry the assurances of factual accuracy that are normally required as a precondition to admitting hearsay statements.

Keywords: evidence, hearsay, Fed. R. Evid. 803(4)

JEL Classification: K19, K41