Requirements:
- Condition must exist at the time actual statement is made
- I.E. – “main i was so stressed last week” is reflective
- Must be the declarant’s condition
- Motive, intent, plan; or emotional, sensory, physical condition, etc.
- Internal conditions/feelings/intent outwardly expressed
- Does not extend to “backward looking” statements
- Unless a will! Compare Hillmon and Shephard
This is DIRECT evidence of state of mind
- Otherwise would be not hearsay in first place if circumstantial (b/c not for truth purpose)
- “You can go to hell, I’m going to Texas”
- Admissible- first clause is circumstantial evidence, second is direct evidence of his plan
- “I believe I am Elvis”
- Can be used to prove the declarant is delusional
- “I am afraid of Bob” → is fine
- But- “I’m afraid of Bob because he threatened me” → the explanation (memory part) does not get admitted under this rule
- Can say how you feel, just not why (“nobody gives a crap how you feel” - Kent)
- Once this state of mind is proven → jury can infer conduct of the declarant
Hillmon declarant had expressed his plan to go somewhere → that’s fine
- Hillmon doctrine allows you to prove intent and conduct through a statement of intent
- When then-existing state of mind plan implicates someone else? Circuit split, I think? But Tilly doesn’t seem to like it.
- Prosecution for murder of victim. To prove Defendant committed the crime, the prosecution offers evidence that earlier in the day she was killed, Victim told a friend, “Defendant is planning to come over for dinner tonight.” not admissible, this is evidence of victim’s plan, not defendant’s
- Prosecution case against D is circumstantial – no eyewitness can place D in the company of Victim on the day the murder occurred. P offers the testimony of Willa, a friend of the Victim, that on the day she last saw Victim she said, “I am going to meet D at the diner for lunch today (the last day the Victim was seen alive).
- Different than Hillmon b/c that case didn’t require knowing where Hillmon actually was, just that another person was there (body identification purposes) here, we need evidence of D being at the diner
Shepard, In murder trial for Shepard, prosecution offered statement from dying woman “Dr. Shephard poisoned me” to prove she was not suicidal → Court calls out this was offered for its truth
- 803(3) exception? → no, her statement is only based on belief in memory (backwards looking)
Will exception: when declarant’s statement “relates to the execution, revocation, identification, or terms” of HIS OR HER will
- NOT ie- statement concerning the conduct of others influencing the terms of the will
FRE 803(4) Statement Made for Medical Treatment or Diagnosis: A statement that is:
- Made for purposes of and pertinent to medical diagnosis or treatment
- Describing medical history, past or present symptoms, pain, sensation, causes, or source
Doesn’t have to be made to actual medical provider
- I.E. – child telling mom he feels sick
Unlike then-existing condition, this exception extends to past symptoms etc.
- Also extends to statements made to get help for other people
Statement purpose must be to OBTAIN medical diagnosis or treatment
- I.E. – doesn’t extend to dr. giving the actual diagnosis
- Post accident bystander asks if you’re hurt? → typically the answer is not for the purpose of obtaining treatment but just to answer the question
- (but could get in under then-existing physical condition)
Only part of statement that is relevant to the medical help is admitted
- Must be “reasonably pertinent to treatment”
- Thus, “i got hit by a car” would be fine
- I.E. – if statement mentions the person that caused the injury → that part of the statement usually doesn’t come in
- Unless that Identity is pertinent to treatment or diagnosis →
- U.S. v. Joe, victim told dr. about rape and threats from her ex husband
- Rape statement found admissible b/c ID was pertinent to treatment, Dr. would give different treatment plan based on who the assailant was (this is rare circumstance)
- But- if it was “I was raped by a 200 pound man with brown hair” → that’s not pertinent to treatment
- Threat was not admissible
Declarant does not have to be the one getting the treatment!
- I.E. – pass out on floor and someone says “someone call 911 Ben got too drunk”
- I.E. – Paramedic to Dr.: “patient says his hip hurts” → admissible hearsay w/in hearsay
- Patient to Paramedic: 803(3) & (4)
- Paramedic to Dr.: (803(4)
FRE 803(5) Recorded Recollection: A record that:
- is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
- was made or adopted by the witness when the matter was fresh in the witness’s memory; and
- accurately reflects the witness’s knowledge.
- If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party (rare)
- Think- getting read into evidence just makes it on par with regular witness testimony
Foundational Elements:
- Witness had knowledge in the past about a matter.
- Present knowledge is insufficient to permit the witness to testify fully and accurately about the matter.
- Memo or record made or adopted by the witness while matter was fresh in witness’ memory.
- Memo or record accurately reflects witness’s prior knowledge.
“Made or adopted” must manifest acceptance of truth and accuracy
- I.E. – signing notepad of police officer’s after cop writes down your statement
At first just try to refresh the witness’s memory through the document, if that doesn’t work → gets to be read into evidence
- Rule 612 covers refreshing ability (doesn’t even need to be witness’ actual statement to just do that), 803(5) is last resort
- RULE DOESN’T HAVE TO APPLY TO JUST REFRESH WITNESS’S MEMORY, THAT’S NOT HEARSAY → ONLY HEARSAY WHEN ACTUALLY, READ INTO EVIDENCE
- 612 allows other party to cross exam and inspect the recording
Exam trick: look out for if witness is also a defendant
FRE 803(6) Records of Regularly Conducted Business Activity: A record of an act, event, condition, opinion, or diagnosis if:
- Was exhibit __ made by, or from information transmitted by, a person with knowledge of the events or conditions recorded;
- Was exhibit ___ made at or near the time of the events or conditions recorded;
- Was it in the regular course of your business to make these types of records;
- Was it in the regular course of your business to keep these records.