The “True” Exceptions and Dan the Dreadful Declarant

The “True” Exceptions

andDan 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)

Statement must an

event or condition. The event or condition

Must be . The

Statement must be made while the

declarant is

803(1)

803(2)

803(1)

803(2)

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

There is an easier way

Hearsay is admissible if it relates to

execution, revocation, terms or identity of

declarants’ will

Hillmon Problem

Jury

I intend to go to Chicago

I really do intend to

go to Chicago

Since , intended to go, it is SML that he went

People who say they have a

mental state are SML to have it

I intend to go to KC

He went to KC

He actually intended to

go to KC

People who intend to do

something are SML to do it

OK Under Hillmon

People who say they have a

mental state are SML to have it

I believe I went to KC

He went to KC

He believes he went to

KC

If someone believes

something, it is SML to be true

No! Belief to prove fact believed.

People who say they have a

mental state are SML to have it

I remember going to KC

He went to KC

He has a memory of going to KC

If someone remembers

something, it is SML to have

happened

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

Jury

Oh my God, John is

pointing a gun at me!

Dead Dan 2

I was talking to Dan on the phone and he said

Jury

Excuse me for a

second. John just came in

Dead Dan 3

I was talking to Dan on the phone and he said

Jury

I’m worried. Five minutes

ago, John threatened me

with a gun.

Dead Dan 4

I was talking to Dan on the phone and he said

Jury

John is coming over

here this afternoon.

Drowned Dan

Drowned Dan 1

I was talking to Dan on the phone and he said

Jury

I’m going to John’s

house this afternoon

Drowned Dan 2

I was talking to Dan on the phone and he said

Jury

I’m going for a walk with John this afternoon

Drowned Dan 3

I was talking to Dan on the phone and he said

Jury

I’m going for a walk with John by the

river this afternoon

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

Statement must describe

Statement will be admissible only if it is

or

or

803(4) – Medical Diagnosis or Treatment

Statement must be for the purpose of

Statement must describe

Statement will be admissible only if it is

Medical treatmentDiagnosis

(Testifying Dr)

Present or past symptoms Medical History

Inception, general cause, external source

Reasonably pertinent to diagnosis or treatment

or

or

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 terribly.Patricia told me her head hurt terribly.Patricia told me Dan hit her with a baseball bat.Patricia told me she had had three abortionsPatricia told me she used to have a drug abuse problem.Patricia told me she currently has a drug abuse problem.

Problem 35

Do Problem 35