MENTAL AND EMOTIONALĬategory one contains the mental and emotional statements. There are two broad categories that fall under this rule. In other words, you don’t have to lay foundation for every specific assertion of a then-existing state in order to show trustworthiness. But there does not have to be a specific finding that the statement itself is trustworthy, as long as it is of the character of the type of statements protected by the exception. The passage of time allows for reflection and undermines the exception’s rationale. That’s will as in last will and testament folks, so don’t get cheeky by trying to stretch “will” to mean one’s wishes.Īnd as usual, the idea behind this exception is that the likelihood of planned fabrication is greatly reduced if the declarant is describing an internal condition that exists in that moment. You may have noticed an exception to the exception: statements of memory relating to the terms or execution of the declarant’s will. ![]() The reason being that passing time means opportunity to make up lies. The rule even takes it a step further and specifically excludes statements of memory (“I was hungry”). It’s actually happening at the very moment the statement is made, or you’re out of luck. Unlike with our first two exceptions, however, there is no ‘immediately after’ component to this rule. In other words, the statements have to be true of a condition that exists at the exact time the statement is made. WHY WE TRUST STATEMENTS OF THEN-EXISTING STATEĪs was the case with 803(1) and 803(2), then existing-states rely on a contemporaneity for their trustworthiness. But be aware of the fact that you can argue that a statement is so closely correlated to and caused by an internal state that the statement itself is essentially tantamount to an expression of that state. You won’t find specific textual support in the rules for such a usage. But in practice, the exception is used to cover statements that are closely related to and/or directly imply those states of being. You might argue that it isn’t really a statement of a then-existing state, and you’d be technically correct. That third example is interesting from a practical standpoint. “I just don’t see the point in going on any more.” There is a wall around the contents of another person’s mind, and Judges rarely if ever allow that wall to be overcome.Įxamples of statements that could constitute exceptions to the hearsay rule under the then-existing state exception: This is because of the Rule 602 requirement that a witness have personal knowledge of any matter to which he or she is testifying, and the fact that, by nature, no witness can have PERSONAL knowledge of the state of mind of another person. The statement must disclose the declarant’s state of mind, not someone else’s, in order to be considered admissible. ![]() The conditions in this rule are internal to the declarant, as opposed to external and observable by any person who happens to be in a position to observe them. There is a distinction to be drawn between the types of conditions covered by this rule and those covered by the present sense impression exception. The condition has to be mental, emotional, or physical. First, the statement in question has to assert a condition. ![]() Then existing mental, emotional, or physical condition: A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health) but not including a statement of memory or belief to prove the fact remembered or believed unless it related to execution, revocation, identification, or terms of declarant’s will. It’s also one of the most useful, and a popular favorite around here. It’s one of the most versatile hearsay exceptions on the market. Rule 803(3) provides the then-existing state exception. If you need to learn or refresh your understanding of that rule and its definitions, just click here. Note: This post deals with the then-existing state exception to the hearsay rule.
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