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Evidence Outline - Professor Tilly - Campbell Law - Part 7

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

< Part 6 | Part 8 >

FRE 803(3) Then Existing Mental, Emotional, or Physical Condition: A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity of the declarant’s will.


  • 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:

  1. Made for purposes of and pertinent to medical diagnosis or treatment
  2. 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:

  1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
  2. was made or adopted by the witness when the matter was fresh in the witness’s memory; and
  3. accurately reflects the witness’s knowledge.
    1. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party (rare)
      1. 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
    • 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:

  1. Was exhibit __ made by, or from information transmitted by, a person with knowledge of the events or conditions recorded;
  2. Was exhibit ___ made at or near the time of the events or conditions recorded;
  3. Was it in the regular course of your business to make these types of records;
  4. Was it in the regular course of your business to keep these records.
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