4. Then existing mental, emotional, or physical condition (FRE 803(3))
a. Statements of physical condition
“ … physical condition (such as … pain and bodily health)….”
i) Requirements
1) Then
“I have a terrible headache”: Admissible
“I had a terrible headache yesterday”: Inadmissible.
2) Spontaneity
It is interpreted that the exception requires spontaneity of a statement to prevent the manufacture of evidence. The mere fact that the statement refers to the declarant’s present condition will generally be sufficient to meet the requirement of spontaneity unless there are particular reasons to suspect that the evidence is manufactured.
3) To layperson
When a statement is made to a doctor, FRE 803(4) may be applied.
4) Statement about pain
The statement must be ones about pain. A statement by the declarant to a non-doctor that reports identifying the precise medical condition will probably be excluded on grounds that it is an uninformed opinion or made without firsthand knowledge: e.g. “my leg must be broken.”
b. Declarant’s then mental state
i) Justification
Such statements are considered more trustworthy because they are probably spontaneous and because the declarant usually has no motive for insincerity and no loss of memory.
ii) When a state of mind is directly in issue
Declarations of existing state of mind are admissible when the declarant’s state of mind is directly in issue and material to the controversy.
When a statement is merely circumstantial evidence of the declarant’s state of mind, rather than a direct assertion of the declarant’s state of mind offered to prove the matter asserted (that state of mind), the statement is not hearsay. Such a distinction, however, has no significance: in either case, statements are admissible.
1) Present state
The rule applies only to statements about the declarant’s then existing mental state.
“I hate my husband, Norman.” - admissible
“Yesterday after I had a big fight with Norman, my hatred of him grew to new heights” - inadmissible.
iii) Proof of Subsequent act
“… then existing state of mind… (such as intent, plan, motive, ….)”
This exception applies when such an out-of-court statement to prove that a subsequent act took place, where the act is at issue.
In general, out-of-court statements which tend to prove a plan, design, or intention of the declarant is admissible to prove that the plan, design, or intention of the declarant was carried out by the declarant.
iv) No proof of prior acts
“[B]ut not including a statement of memory or belief to prove the fact remembered or believed….”
The state of mind exception does not apply to statements of memory or belief about past actions or events, whether the past action was by the declarant (“I believe that I went to the store yesterday”) or by another (“I believe that Dr. Shepard has poisoned me.”)
1) Execution of will
“… unless it relates to the execution, revocation, identification, or terms of declarant’s will.”
The ban on memory and belief statement is no applied to a person’s statements relating to his own will.
This special exception exists simply because there is often a great need for it – no one else can know the decedent’s wishes as well as the decedent, and he is of course not available.
Friday, March 23, 2012
Intro to the Federal Rules of Evidence - 58
3. Excited Utterances (FRE 803(2))
a. Definition
They are statements made under the influence of a startling event.
b. Justification
Where an event is so startling that the declarant’s reflective capacity is eliminated, the declaration is unlikely to be motivated by self-interest or otherwise insincere.
c. Requirements
i) Sufficiently startling event or condition
The basic issue is whether the event is sufficiently starling that the court believes that a normal person would probably have spoken before thinking. Physical violence is not required. Even seeing a photograph in a newspaper may suffice.
ii) Under the influence of the startling event
In making this determination, courts look to all of the surrounding circumstances (e.g., shock, memory loss, self serving nature, a response to a detailed question, the declarant’s actions). But the most important fact is the amount of time that passed between the event and the declaration.
iii) No need to directly explain or refer to the startling event.
Unlike the exception of present sense impression, this exception does not require a statement to directly explain or refer to the startling event. It is sufficient that the excited utterance is one relating to a startling event or condition.
a. Definition
They are statements made under the influence of a startling event.
b. Justification
Where an event is so startling that the declarant’s reflective capacity is eliminated, the declaration is unlikely to be motivated by self-interest or otherwise insincere.
c. Requirements
i) Sufficiently startling event or condition
The basic issue is whether the event is sufficiently starling that the court believes that a normal person would probably have spoken before thinking. Physical violence is not required. Even seeing a photograph in a newspaper may suffice.
ii) Under the influence of the startling event
In making this determination, courts look to all of the surrounding circumstances (e.g., shock, memory loss, self serving nature, a response to a detailed question, the declarant’s actions). But the most important fact is the amount of time that passed between the event and the declaration.
iii) No need to directly explain or refer to the startling event.
Unlike the exception of present sense impression, this exception does not require a statement to directly explain or refer to the startling event. It is sufficient that the excited utterance is one relating to a startling event or condition.
Intro to the Federal Rules of Evidence - 57
D. HEARSAY EXCEPTIONS: AVAILABILITY IMMATERIAL (FRE 803)
1. In General
a. Justification
Under appropriate circumstances, a hearsay statement may possess circumstantial guarantee of trustworthiness sufficient to justify non-production of the declarant in person at the trial even though he may be available. And the difficulty of proving unavailability or subpoenaing witnesses is likely to outweigh the incremental benefits of courtroom testimony.
b. The firsthand knowledge & non-expert opinion rules
In general, D’s firsthand knowledge is required. But non-expert opinion rules apply to at-trial statements, not out-of-court statements.
2. Present Sense Impressions (FRE 803(1))
a. Definition
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
b. Justification
A high degree of reliability: spontaneous – no danger of fabrication; speedy – no danger of any defect from memory; unexcited declarant – reliable.
c. Requirements
i) Subject matter: describing/ explaining an event or condition
Whereas the excited utterance need not describe the exciting event (it must merely take place under the influence of that event), the present sense impression must describe or explain the event that the declarant has perceived.
ii) Time: immediacy
In contrast to the excited utterance exception, for the present sense expression exception, no material time may pass between the event being perceived and the declarant’s statement about it.
iii) Personal knowledge: “perceiving”
The declarant must have perceived the event, rather than have learned about it from some other means (e.g., reading the newspaper).
1. In General
a. Justification
Under appropriate circumstances, a hearsay statement may possess circumstantial guarantee of trustworthiness sufficient to justify non-production of the declarant in person at the trial even though he may be available. And the difficulty of proving unavailability or subpoenaing witnesses is likely to outweigh the incremental benefits of courtroom testimony.
b. The firsthand knowledge & non-expert opinion rules
In general, D’s firsthand knowledge is required. But non-expert opinion rules apply to at-trial statements, not out-of-court statements.
2. Present Sense Impressions (FRE 803(1))
a. Definition
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
b. Justification
A high degree of reliability: spontaneous – no danger of fabrication; speedy – no danger of any defect from memory; unexcited declarant – reliable.
c. Requirements
i) Subject matter: describing/ explaining an event or condition
Whereas the excited utterance need not describe the exciting event (it must merely take place under the influence of that event), the present sense impression must describe or explain the event that the declarant has perceived.
ii) Time: immediacy
In contrast to the excited utterance exception, for the present sense expression exception, no material time may pass between the event being perceived and the declarant’s statement about it.
iii) Personal knowledge: “perceiving”
The declarant must have perceived the event, rather than have learned about it from some other means (e.g., reading the newspaper).
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