The “True”
Exceptions
and
Dan the Dreadful
Declarant
Unrestricted
Exceptions
(First Group)
Four Related Exceptions
• Present Sense Impressions
• Excited Utterances
• Statements of Existing Mental,
Physical or Emotional Condition
• Statements for Purpose of
Medical Diagnosis or Treatment
Problem 31
Do Problem 31
Contrast 803(1) With 803(2)
803(1)
Statement must
an
803(2)
event or condition. The event or condition
803(1)
Must be
. The
803(2)
Statement must be made while the
declarant is
or
803(1)
803(2)
803(1): Present Sense Impressions –
Elements
• Elements
–Statement describing
• Event, or
• Condition
–Made
• While observing, or
• Immediately thereafter
803(1): Present Sense Impressions –
Problem Areas
• Problem areas:
–How soon is immediately?
–Contrast between
• “Describing. . .”
• “Relating to. . .”
803(2): Excited Utterances – Elements
• Elements
–Statement relating to a startling
• Event, or
• Condition
–Made while
• Still under stress
–Made by
• Declarant with personal
knowledge
803(2): Excited Utterances – Problem
Areas
• Problem Areas:
–“Relating to. . .”
–How does one prove
“startlingness”?
–How long is one “still under
stress”?
Problem 32
Do Problem 32
803(3) – Mental, Emotional or Physical
Condition -- Elements
• Elements
–Statement of declarant’s
• State of mind
• Emotion
• Sensation
• Physical condition
–Made at the time
803(3): Mental, Emotional or Physical
Condition – Exceptions
• Proponent may not use
–Declarant’s statement that he
• Remembered something,” or
• Believed something
–To prove that the “fact” declarant
“remembered” or “believed” was
true
803(3): Mental, Emotional or Physical
Condition – Problem Areas
•Hillmon
•Wills
Statements Regarding Wills:
An Exception to an Exception to an
Exception
• You can’t use hearsay
• But you can use hearsay to show
state of mind
• But you can’t use state of mind
(memory) to prove thing
remembered.
• But you can if it relates to
execution, revocation, terms or
identity of declarants’ will
Hearsay is admissible
if it relates to
execution, revocation,
terms or identity of
declarants’ will
Hillmon Problem
I intend
to go to
Chicago
I really do
intend to
go to
Chicago
Since ,
intended to
go, it is SML
that he went
Jury
People who say
they have a
mental state are
SML to have it
I intend to
go to KC
People who
intend to do
something are
SML to do it
He actually
intended to
go to KC
He went to
KC
OK Under Hillmon
People who say
they have a
mental state are
SML to have it
I believe I
went to KC
If someone
believes
something, it is
SML to be true
He believes
he went to
KC
He went to
KC
No! Belief to prove
fact believed.
People who say
they have a
mental state are
SML to have it
I remember
going to KC
If someone
remembers
something, it is
SML to have
happened
He has a
memory of
going to
KC
He went to
KC
No! Memory to
prove fact
remembered.
Hillmon Doctrine
• Declarant’s out of court
statement of
–Present intent
–To do future act
• Can be used to prove
–Doing of future act
• By declarant
• Maybe by joint actor
Compare the following:
•
•
•
•
•
•
•
•
I am going to KC with my briefcase
I am going to KC with my dog
I am going to KC with my 3 yr old
I am going to KC with my 16 yr old
I am going to KC with Fred (an adult)
I’m meeting Fred in KC
F & I are playing bridge in KC tomorrow
F & I are going to KC tomorrow on TWA Flight
100 (to prove Flight 100 went)
Dead Dan
Dead Dan 1
I was talking to
Dan on the phone
and suddenly he
said
Oh my God,
John is
pointing a
gun at me!
Jury
Dead Dan 2
I was talking to
Dan on the phone
and he said
Excuse me
for a
second.
John just
came in
Jury
Dead Dan 3
I was talking to
Dan on the phone
and he said
I’m worried.
Five minutes
ago, John
threatened me
with a gun.
Jury
Dead Dan 4
I was talking to
Dan on the phone
and he said
John is
coming over
here this
afternoon.
Jury
Drowned Dan
Drowned Dan 1
I was talking to
Dan on the phone
and he said
I’m going to
John’s
house this
afternoon
Jury
Drowned Dan 2
I was talking to
Dan on the phone
and he said
I’m going for
a walk with
John this
afternoon
Jury
Drowned Dan 3
I was talking to
Dan on the phone
and he said
I’m going for
a walk with
John by the
river this
afternoon
Jury
Problem 33
Do Problem 33
Problem 34
Do Problem 34
803(4) – Statements for Medical
Diagnosis or Treatment
Three Elements
• Purpose of the statement
• Subject Matter of the
statement
• Pertinence of the statement
803(4) – Medical Diagnosis or Treatment
Statement must be for the purpose of
or
Statement must describe
or
Statement will be admissible only if it
is
803(4) – Medical Diagnosis or Treatment
Statement must be for the purpose of
Medical treatment
or
Diagnosis
(Testifying Dr)
Statement must describe
Present or past
symptoms
or
Medical History
Inception, general
cause, external source
Statement will be admissible only if it
is Reasonably pertinent to diagnosis or treatment
Patricia sues Dan alleging leg injury only
At Patricia’s lawyer’s request, I
examined her to determine the
extent of her injuries:
Patricia
told
me
her
leg
hurt
Patricia
told
me
her
head
hurt
Patricia
told
me
Dan
hit
her
with
Patricia
told
me
she
had
had
terribly.
Patricia
told
me
she
used
to
terribly.
Patricia
told
me
she
currently
athree
baseball
bat.
abortions
have
drug abuse
abuse problem.
problem.
has aa drug
Problem 35
Do Problem 35