The opinion
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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13019
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHARON ELIZABETH KEEGAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:20-cr-00045-RSB-CLR-2
____________________
Before NEWSOM, GRANT, and ABUDU, Circuit Judges.
GRANT, Circuit Judge:
Federal Rule of Evidence 803(4) provides a hearsay
exception for a statement that is “made for—and is reasonably
pertinent to—medical diagnosis or treatment.” Sharon Keegan,
who took naked pictures and videos of her fourteen-year-old sister
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2 Opinion of the Court 22-13019
and then sent them to her husband (both at his request and as a
special “surprise”), attempted to use this Rule to solve her main
problem at trial—getting her story out without also getting on the
stand.
The crux of Keegan’s defense was that she took the photos
under duress because her husband was abusing her. Of course,
getting on the witness stand and explaining that for herself would
have opened her up to cross-examination, a prospect that few
defendants relish. But perhaps, Keegan thought, if she told her
story to a medical expert witness that expert could share her
allegations with the jury, and she would be spared the risks of cross-
examination.
This approach is exactly what the hearsay rules seek to
prevent, and we reject the attempt to end-run the Rules of
Evidence. Between the plain text of Rule 803(4), the background
of the traditional rules regarding medical testimony, and the
district court’s factual findings in this case, we agree with the
district court that because Keegan’s allegations of abuse were not
made “for” medical diagnosis or treatment, those statements
cannot qualify for Rule 803(4)’s hearsay exception. We affirm.
I.
In 2019, Sharon Keegan began taking naked pictures and
videos of her little sister, who was fourteen. After creating these
files, Keegan would upload them to Dropbox for her husband’s
viewing pleasure. Sometimes it was at his request; other times she
uploaded out of the blue and teased him that there was a “surprise”
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waiting for him in the Dropbox. Keegan’s husband could not keep
some of these images and videos to himself, and eventually an
undercover agent in the United Kingdom detected them online.
The British agent passed the information to law enforcement
officers who secured an arrest warrant for Keegan’s husband and a
search warrant for his residence, which he shared with Keegan, her
parents, and her little sister.
At that point, the police did not yet suspect Keegan herself
of any wrongdoing. But that began to change when she told
officers that she had “accidentally sent maybe four or five photos
of her sister in pink panties to her husband.” And as Keegan’s
interview went on, investigators felt increasingly “strange” about
her role in the child pornography production.
Questioning whether Keegan was “as innocent” as she was
“letting on,” law enforcement agents forensically analyzed her
phone—which yielded even more nude images of the little sister.
Testimony from both the sister and Keegan’s husband confirmed
abuse. Both Keegan and her husband were charged with several
crimes, including producing, possessing, and distributing child
pornography; he pleaded guilty, but she did not.
Keegan’s defense was that she was under duress. She “did
not have the mens rea to commit the offenses charged,” she said,
because her husband had severely abused her. 1 Key to this defense
was the expert testimony of psychologist Victoria Reynolds, who
1 Keegan’s husband denied the allegations at trial.
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4 Opinion of the Court 22-13019
had been a full-time expert witness for a decade—but had not done
any clinical work at all during that time.
Even though a hospital physician had already diagnosed
Keegan with a “dissociative disorder” three years earlier, Keegan’s
attorney contacted Reynolds, asking her to “evaluate the impacts”
of Keegan’s alleged abuse “as they relate to her current legal
charges.” After meeting with Keegan for two days, Reynolds made
the same diagnosis. She also planned to explain that Keegan’s
actions must be “understood as a series of complex and
recognizable trauma-driven adaptations and survival strategies”
and testify at length about the abuse that purportedly led to this
diagnosis.
The government sought to exclude all of Reynolds’s
testimony as irrelevant. After the district court rejected that effort,
finding the expert report “probative” of Keegan’s defense, the
government renewed its request on different grounds. This time,
it sought to exclude only part of Reynolds’s testimony—the
“statements that the defendant made to Dr. Reynolds as it relates
to [her husband’s] alleged abuse.” The government argued that
these statements were inadmissible hearsay not covered by the
exception in Rule 803(4). But it also conceded that the statements
could still be admissible to illustrate the basis of the expert’s
opinion under Rule 703.
This time the district court agreed. After reviewing the
record, the court concluded that Keegan’s “purpose here, it’s clear,
was to prepare the witness to testify to a jury”—to feed Reynolds
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22-13019 Opinion of the Court 5
“her story in hopes that [the] witness would then be able to tell the
same story to the jury,” not to obtain “diagnosis or treatment.” The
court also excluded the statements under Rule 403 in the
alternative, explaining that their “probative value” was
“substantially outweighed by the unfair and the undue prejudice
that would go to the government.” Seeing the writing on the wall,
Keegan entered a conditional plea—guilty to one count of child
pornography production, but with the right to withdraw the plea
if she successfully appealed the court’s evidentiary ruling.
This is Keegan’s appeal. She argues that the district court
erred twice over: first by incorrectly interpreting Rule 803(4) and
then by unreasonably applying Rule 403. We disagree, at least on
the first point. The district court did not clearly err in finding that
there was no diagnostic purpose underlying Keegan’s statements
to Reynolds, and thus did not abuse its discretion in excluding them
as inadmissible hearsay; although they were made to a doctor, they
were not made “for” medical diagnosis or treatment. See Fed. R.
Evid. 803(4). Because we conclude that the district court did not
abuse its discretion, we do not address the Rule 403 argument.
II.
We review evidentiary rulings for abuse of discretion.
United States v. Williams, 865 F.3d 1328, 1337 (11th Cir. 2017).
“Basing an evidentiary ruling on a legal error constitutes an abuse
of discretion per se.” Id. We review factual findings underlying
evidentiary rulings for clear error. City of Tuscaloosa v. Harcros
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6 Opinion of the Court 22-13019
Chems., Inc., 158 F.3d 548, 556 (11th Cir. 1998); United States v. Byrom,
910 F.2d 725, 734 (11th Cir. 1990).
III.
Hearsay testimony is generally inadmissible. Fed. R. Evid.
802. And though the term “hearsay” has perplexed law students
and lawyers for decades, its core definition is simple: an out-of-
court statement offered to prove that what the statement says is
true. Fed. R. Evid. 801(c). Black’s Law Dictionary defines it as
“testimony that is given by a witness who relates not what he or
she knows personally, but what others have said.” Hearsay, Black’s
Law Dictionary (12th ed. 2024). An example: “My neighbor told
me that she saw Bill start the fire.” That testimony cannot be used
to prove that Bill started the fire; the jury would be hearing from
someone who heard from someone else about who started the fire.
Instead, modern hearsay rules require that the neighbor testify
herself about what she saw.
Those modern rules are the product of hundreds of years of
English and then American jurisprudence, going back to the 1500s.
See 5 John Henry Wigmore, Evidence in Trials at Common Law
§ 1364, at 12 ( James H. Chadbourn ed., rev. 1974). While hearsay
testimony was “constantly received” at trials throughout that
century, the tide began to turn in the 1600s as the common law
“steadily” began to appreciate the “impropriety” of admitting these
statements as evidence. See id. at 17–18. By 1690, it was clear that
the general rule against hearsay had “become a part of the law as
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well as of the practice.” Id. at 18. And by the mid-1700s, the “only
question” was what the exceptions should be. Id. at 20.
The reason hearsay was generally considered unreliable (and
therefore inadmissible) was plain then and remains the same today:
“the other side hath no opportunity of a cross-examination.” Id.
Or as Chief Justice Kent put it more than two hundred years ago, a
witness who shares hearsay testimony need not “enter into any
particulars,” “answer any questions,” “solve any difficulties,”
“reconcile any contradictions,” “explain any obscurities,” or
“remove any ambiguities”; instead, “he intrenches himself in the
simple assertion that he was told so, and leaves the burden entirely
on his dead or absent author.” Coleman v. Southwick, 9 Johns. 45, 50
(N.Y. Sup. Ct. 1812). In our adversarial system, cross-examination
is a fundamental proving ground—each side has the chance to put
the other’s witnesses to the test. But that chance disappears when
the factfinder receives hearsay evidence rather than testimony
from a live witness. For these reasons and more, Justice Story
lamented that hearsay evidence is “exceedingly infirm,
unsatisfactory and intrinsically weak in its very nature and
character.” Ellicott v. Pearl, 35 U.S. (10 Pet.) 412, 436 (1836). Chief
Justice Marshall too described the “intrinsic weakness” of hearsay
evidence and “its incompetency to satisfy the mind of the existence
of the fact.” See Queen v. Hepburn, 11 U.S. (7 Cranch) 290, 296 (1813).
Despite these concerns, many exceptions to the rule against
hearsay have arisen—typically for statements that are “made under
such circumstances that even a skeptical caution would look upon
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it as trustworthy.” 5 Wigmore on Evidence § 1420, at 252. Perhaps
the most commonly known is dying declarations. These
statements, which are exactly what they sound like, are presumed
to be reliable because “the sense of impending death is presumed
to remove all temptation to falsehood, and to enforce as strict an
adherence to the truth as would the obligation of an oath.” Mattox
v. United States, 156 U.S. 237, 244 (1895).
Other exceptions have also emerged, including present sense
impressions, excited utterances, and business records, just to name
a few. See Fed. R. Evid. 803(1), (2), (6). What unites these hearsay
exceptions and more is that the “probability of accuracy and
trustworthiness” of the statements is “practically sufficient, if not
quite equivalent to that of statements tested in the conventional
manner.” 2 See 5 Wigmore on Evidence § 1422, at 253.
We do not see why one exception should stand out among
the others. Federal Rule of Evidence 803(4) allows a hearsay
statement that “(A) is made for—and is reasonably pertinent to—
medical diagnosis or treatment; and (B) describes medical history;
past or present symptoms or sensations; their inception; or their
general cause.” The key part of this Rule for our purposes is the
requirement that the statement be “made for . . . medical diagnosis
2 We see this same theme in the “Residual” hearsay exception: for a statement
to qualify, it must be “supported by sufficient guarantees of trustworthiness.”
See Fed. R. Evid. 807(a)(1).
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or treatment.” 3 The district court’s task was to decide whether that
would be true for Reynolds’s testimony recounting Keegan’s
allegations of abuse. That court said no, and we see no clear error
in its factual findings and no abuse of discretion in its evidentiary
ruling.
As always, we begin with the plain text of the Rule. The
word “for” is used “to indicate the object, aim, or purpose of an
action or activity.” For, The American Heritage Dictionary of the
English Language (5th ed. 2016); see also Webster’s Ninth New
Collegiate Dictionary (1986) (“for” is “used as a function word to
indicate purpose”). Or as Black’s Law Dictionary puts it: the word
for “connotes the end with reference to which anything is, acts,
serves, or is done.” For, Black’s Law Dictionary (5th ed. 1979). In
short, the word “connotes intent.” Lawson ex rel. Lawson v. Fortis
Ins. Co., 301 F.3d 159, 165 (3d Cir. 2002) (Alito, J.). And the phrase
“for medical diagnosis” is there for a reason; otherwise, the
exception would include any statement made to a physician that
might conceivably be related to a patient’s medical history.
Given the centrality of reliability and trustworthiness in the
other hearsay exceptions, Rule 803(4)’s “for medical diagnosis”
language, we believe, ferrets out statements whose “real use and
predominating effect would be that of hearsay testimony of the
patient.” See 6 John Henry Wigmore, Evidence in Trials at Common
Law § 1720, at 113 ( James H. Chadbourn ed., rev. 1976). Such
3 The parties have not disputed whether Keegan’s allegations of abuse satisfy
clause (B), so we will not consider that part of the Rule.
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statements “should be excluded.” See id. Rule 803(4)’s text
therefore creates a tight connection between purpose (“for”) and
result (“medical diagnosis”).
The Rule’s origins reveal the reason for that connective
language. Rule 803(4) codified one of our Nation’s most “firmly
rooted” hearsay exceptions: statements made for medical
treatment. White v. Illinois, 502 U.S. 346, 355–56 n.8 (1992)
(quotation omitted). And the justification for the exception is that
the reliability of such statements “is assured by the likelihood that
the patient believes that the effectiveness of the treatment depends
on the accuracy of the information provided to the doctor.” 2
Robert P. Mosteller et al., McCormick on Evidence § 277, at 431 (8th
ed. 2020). A patient is “highly unlikely to lie” to her doctor, the
logic goes, because if she does then she will receive faulty medical
care. See Idaho v. Wright, 497 U.S. 805, 820 (1990). The patient’s
natural desire to heal bestows a “guarantee of credibility” upon her
statements. See 5 Mark S. Brodin et al., Weinstein’s Federal Evidence
§ 803.06[1], at 803–42 (2d ed. 2023). Simply put, Rule 803(4) is
premised on the existence of a “selfish treatment motivation.” 4 See
McCormick on Evidence § 277, at 431.
It is true that some other subsections of Rule 803 have an
explicit reliability requirement that is absent in Rule 803(4). See,
4 In Rule 803(4), the terms “diagnosis” and “treatment” are set apart by a
disjunctive “or.” So of course, attempts at either diagnosis or treatment can
trigger the Rule, even in the absence of the other. Indeed, many diagnoses do
not require follow-on medical treatment (say, a benign mole). But whether
seeking diagnosis or treatment, the patient has a strong incentive to tell the
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e.g., Fed. R. Evid. 803(6) (business records); 803(8) (public records).
But this omission should not be surprising—reliability is inherent
in Rule 803(4)’s context. A helpful comparison is the excited
utterances exception, which also has no explicit reliability
requirement. See Fed. R. Evid. 803(2). There too, the “firmly
rooted” exception to the hearsay rule inherently carries “sufficient
indicia of reliability.” White, 502 U.S. at 355–56 n.8. The
“evidentiary rationale” for both hearsay exceptions is simple: “such
out-of-court declarations are made in contexts that provide
substantial guarantees of their trustworthiness.” Id. at 355. All this
to say, the absence of an explicit reliability requirement in Rule
803(4) does not make reliability irrelevant.
To the contrary—an expectation of reliability is woven into
the very fabric of Rule 803(4). See id. at 355–56 & n.8. But the same
cannot necessarily be said for other hearsay exceptions with an
explicit reliability requirement. Take the business records
exception. See Fed. R. Evid. 803(6). While classic business
records—“payrolls, accounts receivable, accounts payable,” and the
like—are “quite trustworthy,” experience has shown that some
records can be “calculated for use essentially in the court, not in the
business.” See Palmer v. Hoffman, 318 U.S. 109, 113–14 (1943). There
is no reason to think that these latter records—the ones whose
truth—to help the doctor get it right. So the fact that both fall within Rule
803(4)’s exception does not mean that a statement can be made “for . . .
medical diagnosis” even when its purpose is entirely unrelated to ensuring the
patient’s health.
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12 Opinion of the Court 22-13019
“primary utility is in litigating”—are especially “reliable.” See id. at
112, 114. By excluding them, then, the reliability requirement in
the Rule 803(6) business records exception ensures that “the door
to avoidance of cross-examination” is not “open[ed] wide.” Cf. id.
at 114.
Rule 803(4) does the same thing. It limits the hearsay
exception to evidence that has traditionally been considered
trustworthy. So for statements to be admissible under the Rule,
they must be made with the purpose of seeking—in other words,
“for”—medical treatment or diagnosis. And just like in other
hearsay contexts, the court decides whether the party seeking to
introduce the statement has “laid a proper foundation” for its
admission. See United States v. Wandahsega, 924 F.3d 868, 880 (6th
Cir. 2019); United States v. Kootswatewa, 893 F.3d 1127, 1133 (9th Cir.
2018); Fed. R. Evid. 104(a).
IV.
We now examine whether Rule 803(4) applies to Keegan’s
statements to Reynolds about her husband’s abuse. The district
court concluded that she recounted the abuse “to prepare the
witness to testify to a jury”—not for “diagnosis or treatment.” That
factual finding is reviewed for clear error, and we see none.
Keegan herself acknowledges that she sought the expert
witness’s opinion “principally in anticipation of litigation.” Indeed,
her attorney requested that the expert witness—who has not done
clinical work in about a decade—evaluate Keegan’s experiences “as
they relate to her current legal charges.” This laser focus on
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litigation makes us share the district court’s skepticism that
Keegan’s statements to her expert witness were for medical
diagnosis.
What’s more, Keegan did not consult Reynolds until after
she was indicted. By the time she first spoke with Reynolds, she
had spent four months in jail. And if Keegan genuinely wanted to
inform the jury of her diagnosis, she needed to look no further
than her own medical records—in 2018, she went to the hospital
and received the same diagnosis that she got three years later from
Reynolds. But that earlier physician did not know of Keegan’s
accusations against her husband, and therefore could not testify
about them. All this goes to show that there was no “selfish
treatment motivation” here. See McCormick on Evidence § 277, at
431.
It is not enough that Keegan asked for a medical diagnosis
and got one. As the district court concluded, the medical diagnosis
was not “the object, aim, or purpose” of the “action or activity.”
For, The American Heritage Dictionary of the English Language
(5th ed. 2016). And, as we said, the phrase “for medical diagnosis”
is there for a reason. Without it, statements like Keegan’s, made to
medical professionals without the true goal of seeking treatment,
could be entered into evidence—all while the true source of the
information evades cross-examination. See 6 Wigmore on
Evidence § 1720, at 113. Such evasion strikes at the heart of our
Nation’s hearsay rules, which aim to guarantee “an opportunity of
cross-examination, or to call attention to omitted facts, that if
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stated might modify or completely overturn the inference drawn
from the declarations as made.” State v. Medlicott, 9 Kan. 257, 283
(1872). And rules are not simply procedural loopholes to exploit;
they “guard against” the dangers that are “so liable to arise from
the admission, as evidence, of declarations not made under the
sanction of an oath.” Id.
To be sure, in other cases it may be more difficult to discern
why a litigant sought her medical expert. But district courts are
equipped to probe whether a litigant made specific statements to a
medical expert for the genuine purpose of obtaining a diagnosis or
treatment. “Immersed in the case as it unfolds, a district court is
more familiar with the procedural and factual details and is in a
better position to decide many evidentiary and similar issues.”
United States v. Shamsid-Deen, 61 F.4th 935, 943 (11th Cir. 2023)
(quotation omitted). Here, the district court did not clearly err in
finding that Keegan’s statements of abuse to her expert witness
were not made for medical diagnosis or treatment.
Keegan protests that the Advisory Committee on Evidence
Rules’ Note to Rule 803(4), published in 1972, requires a different
understanding of the Rule. But while the Committee’s Notes are
typically afforded “great weight,” they are “not binding.” See
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005)
(quotation omitted). And they can be discounted when their
foundation has been eroded. Here there is good reason to ignore
the Note even apart from its atextual hostility to the reliability
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standards inherent in the traditional rule: its rationale is
contradicted by a later amendment to the Rules of Evidence.
The Note says that statements made to “a physician
consulted only for the purpose of enabling him to testify” are
admissible under Rule 803(4). See 1972 Advisory Committee Notes
on Rule 803. Under “[c]onventional doctrine,” though, those
statements were “not admissible as substantive evidence.” Id. That
means that the jury could not consider the statements for their
truth. See United States v. Kent, 93 F.4th 1213, 1216 (11th Cir. 2024).
But the expert witness was allowed to use the statements to explain
“the basis of his opinion.” See 1972 Advisory Committee Notes on
Rule 803.
A concrete example clarifies the difference. Suppose
Reynolds testified as follows: “Based on what Keegan told me
about the abuse she suffered, I diagnosed her with dissociative
identity disorder.” Under the conventional doctrine, the jury could
not consider Keegan’s allegations of abuse as “substantive
evidence”—that is, as proof that she was abused. Instead, it could
consider the allegations only as the “basis” of Reynolds’s
testimony—that is, take account of the fact that Keegan’s
allegations were the reason Reynolds diagnosed Keegan with the
disorder.
The 1972 Note—but not the Rule itself—treated litigants’
statements to expert witnesses as substantive evidence, rejecting
that traditional distinction. Why? The Committee said it was “one
most unlikely to be made by juries.” See id. But that rationale no
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longer holds up. Federal Rule of Evidence 703 now “demands that
juries make the exact distinction that the 1972 Advisory
Committee’s Note says they cannot.” Paul W. Kaufman &
Christopher J. Merken, Toward a Presumptive Admission of Medical
Records Under Federal Rule of Evidence 803(4), 64 B.C. L. Rev. 567,
585–86 n.85 (2023).
Rule 703 deals with the proper bases of an expert witness’s
opinion testimony. Before 2000, there was judicial and scholarly
disagreement about “how to treat inadmissible information when
it is reasonably relied upon by an expert in forming an opinion.”
See 2000 Advisory Committee Notes on Rule 703 (collecting cases
and scholarship). Some argued that the rules governing expert
testimony should account for the “fine but important distinction”
between an expert’s opinion (which is substantive evidence) and
the basis of that opinion (which is not). See Ronald L. Carlson,
Policing the Bases of Modern Expert Testimony, 39 Vand. L. Rev. 577,
584–86 (1986). Others disagreed, contending that the “charade that
opinions and their bases are severable should end.” See Paul R.
Rice, Inadmissible Evidence as a Basis for Expert Opinion Testimony: A
Response to Professor Carlson, 40 Vand. L. Rev. 583, 596 (1987).
Taking the 1972 Note to Rule 803(4) seriously would seem to
require adopting the latter approach—refusing to trust juries to
distinguish between substantive evidence and basis-of-opinion
evidence.
But that is not what happened. In fact, the 2000 amendment
to the text of Rule 703 did the opposite: it established that “hearsay
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relied upon by an expert is admissible only to establish the basis of
that expert’s opinion and not as substantive evidence.” Kaufman
& Merken, 64 B.C. L. Rev. at 585–86 n.85; see Henderson v. Ford Motor
Co., 72 F.4th 1237, 1243 (11th Cir. 2023). Given the contradiction
between this amendment and the 1972 Note, we have little reason
to afford the Note its ordinary persuasive value. 5
We acknowledge that the result here puts us at odds with
some of our sister circuits. See O’Gee v. Dobbs Houses, Inc., 570 F.2d
1084, 1089 (2d Cir. 1978); United States v. Iron Shell, 633 F.2d 77, 83
(8th Cir. 1980); Morgan v. Foretich, 846 F.2d 941, 950 & n.18 (4th Cir.
1988); United States v. Farley, 992 F.2d 1122, 1125 (10th Cir. 1993).
But the most recent of these decisions was over three decades
ago—seven years before the relevant amendment to Rule 703. And,
with respect, none grapples with the text of or justification for Rule
803(4). Instead, they home in on the Advisory Committee Note
and matter-of-factly state that “Rule 803(4) abolished the common-
5 It is fair to wonder why the Advisory Committee did not update the Note to
Rule 803(4) when it amended Rule 703. The likely reason is the Committee’s
enabling rules, which establish that the Committee’s mandate is to “consider
proposed new and amended rules (together with committee notes).” See Jud.
Conf. of the U.S., Procedures for the Judicial Conference’s Committee on Rules of
Practice and Procedure and Its Advisory Rules Committees § 440.20.30(c). The
Committee “reads this rule as not authorizing it to make changes to the
Advisory Committee Notes unless they coincide with a rule amendment.”
Kaufman & Merken, 64 B.C. L. Rev. at 587 & n.93. And because there has not
been any “substantive change to Rule 803(4) since 1972,” the Committee
“could not have amended Rule 803(4)’s 1972 Advisory Committee Note when
it amended Rule 703 in 2000.” Id. at 587–88.
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law distinction between the doctor who is consulted for the
purpose of treatment and an examination for the purpose of
diagnosis only.” See Farley, 992 F.2d at 1125 (alteration adopted and
quotation omitted); Morgan, 846 F.2d at 950; Iron Shell, 633 F.2d at
83; O’Gee, 570 F.2d at 1089. That approach both ignores the
meaning of the Rule, and strips the district court of its ordinary
authority to make factual judgments in evidentiary rulings. And as
we have explained, the Note cannot carry the weight those courts
put on it. Again, the 2000 amendment to Rule 703 requires juries to
make exactly the same distinction that the Note says they cannot
handle. We decline to rest our decision on the Note, and use the
text of the Rule instead.
Given the circumstances underlying Reynolds’s proffered
testimony, we see no clear error in the district court’s finding that
Keegan did not seek out a medical expert to obtain a diagnosis.
And given the ordinary meaning of the word for—“not to mention
common sense”—the district court did not abuse its discretion in
concluding that Keegan’s statements do not qualify for the hearsay
exception in Rule 803(4). See Abramski v. United States, 573 U.S. 169,
179 (2014).
* * *
To be clear: some statements made to medical expert
witnesses will qualify for the hearsay exception in Rule 803(4). In
deciding which ones do, courts must consider, among other things,
the text of the Rule, the context surrounding the statement, and
the facts of the case. Given these considerations, Keegan’s
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statements of abuse to her expert witness were not “for” medical
diagnosis. We AFFIRM.
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22-13019 NEWSOM, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
I concur in the Court’s decision and join its opinion. I write
separately merely to highlight a nuance that, to me, makes all the
difference.
The object of the interpretive inquiry here is Federal Rule of
Evidence 803(4). In relevant part, that Rule establishes an
exception to the prohibition against hearsay evidence for “[a]
statement that is . . . made for—and is reasonably pertinent to—
medical diagnosis or treatment . . . .” Fed. R. Evid. 803(4). The
question, as the Court has well explained, is whether Sharon
Keegan’s “statement[s]” to Dr. Victoria Reynolds were made
“for . . . medical diagnosis.”
Keegan’s theory, as I understand it, is that, yes, of course she
made her statements to Dr. Reynolds “for . . . medical diagnosis”:
She wanted a diagnosis, and she got one—and that’s all Rule 803(4)
requires. The fact that she might also have made those statements
“for” later use in litigation, Keegan says, is neither here nor there,
because a person sometimes speaks “for” more than one reason—
and by its terms, the Rule doesn’t foreclose the possibility that she
might have had dual motives.
Cards on the table, I don’t think Keegan’s position can be
ruled out as a matter of pure, sterile semantics. She can credibly
contend that her reading is consistent with both Rule 803(4)’s
“plain text” and the leading dictionary definition of the word
“for”—as “indicat[ing] purpose or aim.” Hoever v. Marks, 993 F.3d
1353, 1357 (11th Cir. 2021) (en banc) (citing dictionaries); accord id.
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2 NEWSOM, J., Concurring 22-13019
at 1366 (Newsom, J., concurring in part and dissenting in part)
(agreeing that, when used as it is here, the word “for” indicates
“purpose,” “an intended goal,” or “object”). Because, Keegan’s
argument goes, she talked to Dr. Reynolds for two reasons, one of
which was to obtain a medical diagnosis, her statements fit within
the Rule’s terms.
But—and it’s a big but—the sheer fact that Keegan’s reading
of the Rule is “linguistically plausible” doesn’t make it right. See
Ruiz v. U.S. Att’y Gen., 73 F.4th 852, 864 (11th Cir. 2023) (Newsom,
J., concurring). And that’s because “proper textualism” isn’t
wooden “literalism.” Id. The aim of the interpretive enterprise
isn’t to isolate the clinical, classroom meaning of a particular string
of words. It’s subtler, richer: Here, we’re seeking to discern, as
best we can, how a real-life, flesh-and-blood individual would
understand the phrase “statement . . . made for . . . medical
diagnosis”—in particular, how he would understand that phrase as
used in the context of a compilation of rules regulating the
admission and exclusion of hearsay evidence. 1 And although that
question is ultimately empirical, it seems to me inconceivable that
anyone encountering that phrase would understand it to refer to a
statement like Keegan’s—one made for the immediate purpose of
obtaining a medical diagnosis but with a longer-term view to using
1 Whether the target individual in this context is an ordinary citizen, an
ordinary lawyer, or (even) an ordinary district court judge, I’m not quite sure.
It’s an interesting question, but not one, I think, whose resolution is necessary
here.
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22-13019 NEWSOM, J., Concurring 3
it in litigation. Every ounce of pertinent context—structural,
historical, etc.—weighs against Keegan’s mechanical
interpretation.
As the Court’s opinion helpfully recounts, the Federal Rules’
hearsay provisions didn’t just apparate, Harry-Potter-like. Rather,
they arose out of centuries’ worth of discussion and debate—not
only about the risks of hearsay statements but also the limited
circumstances in which some such statements might, despite their
out-of-court-ness, be sufficiently trustworthy to warrant
admission. See Maj. Op. at 6 et seq. And as the Court quite rightly
points out, the thread that binds the traditional hearsay exceptions
together—their animating justification, if you will—is that they
cover statements that, by their very nature, indicate reliability. See
id. at 7–8. That is clear not only from the history of the exceptions’
reception and adoption, but also from their enumeration in the
Federal Rules. So, as the Court notes, several of Rule 803(4)’s
closest neighbors memorialize exceptions for statements that, by
their very nature, give rise to a strong presumption of reliability—
e.g., “present-sense impression[s],” “excited utterance[s],” and
statements regarding “then-existing mental, emotional, or physical
condition[s].” See Fed. R. Evid. 803(1), (2), (3). And conspicuously,
some of the more prominent hearsay exceptions applicable to
statements whose reliability might not be inherent—e.g., business
and public records—explicitly prescribe a “trustworthiness”
requirement. See id. 803(6), (8).
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4 NEWSOM, J., Concurring 22-13019
The historical and structural context is thus unmistakable:
One way or another, the hearsay exceptions reflect an evident
insistence on reliability. Call it what you will—context, manifest
purpose, common sense, etc.—but that backdrop matters. To be
clear, though—because the distinction is to my mind absolutely
essential—it matters not (as the pragmatist might contend) because
it provides a basis for ignoring or even discounting Rule 803(4)’s
terms, but rather because it informs the way an actual person in the
real world would process and understand those terms. The Court’s
reading of the Rule—namely, that it applies to statements made
with the aim of obtaining a medical diagnosis for its own sake—
squares perfectly with the available context, and thus with a proper
understanding of the provision’s text: A person can be expected to
speak truthfully to a doctor when her own health is at stake.
Keegan’s interpretation, by contrast—that the Rule also covers
statements made for the purpose of obtaining a medical diagnosis
that was itself sought for use in litigation—defies the lessons of
context, and thus (again) the proper understanding of the
provision’s text: There’s no particular reason to presume the
trustworthiness of a statement that an aspiring litigant makes with
one eye on the courtroom.
So even if Keegan’s interpretation of the phrase “made
for . . . medical diagnosis” can (as I think it can) claim consistency
with the literal, dictionary-driven meaning of Rule 803(4)’s terms, it
has no footing in—and indeed, is irreconcilable with—the real-
world, ordinary understanding of that phrase, as used in context.
And that, to me, is dispositive.