Class 17: Hearsay Exceptions for Present Sense Impressions and Excited Utterances; The State of Mind Exception

Question 1

Under what circumstances is a hearsay statement admissible as a present-sense impression? (Q)

Answer 1

A hearsay statement is admissible as a present-sense impression if the declarant:

(1) makes a statement describing an event or condition and

(2) the statement was made simultaneously with, or immediately after, perceiving it.

The event or condition need not be startling or exciting, nor elicit any specific type of reaction in the declarant. However, the event or condition and the statement must be substantially contemporaneous.

(FRE 803(1))

Question 2

Under what circumstances is a hearsay statement admissible as an excited utterance? (Q)

Answer 2

A hearsay statement is admissible as an excited utterance if:

(1) there is a startling or exciting event,

(2) the declarant makes a statement while under the stress of the event, and

(3) the statement relates to the event.

The event and the statement do not need to be contemporaneous, but generally a statement is not an excited utterance if the declarant has an opportunity to reflect on the event.

(FRE 803(2))

Question 3

Must an excited utterance arise from an objectively exciting or startling event? (Q)

Answer 3

No. An excited utterance must arise from a subjectively exciting or startling event. The key question is whether the declarant found the event startling or exciting, regardless of whether an objectively reasonable person in the same situation would have the same reaction.

(FRE 803(2))

Question 4

A defendant forcibly took a victim from the victim’s home. Four hours later, the defendant locked the victim and a cellmate inside a makeshift prison cell. The victim, shaking and crying, told his cellmate that he had been beaten, burned, interrogated, and threatened with death. At trial, the prosecutor called the victim to testify. She also called the victim’s cellmate and asked, “What did the victim tell you happened after he was kidnapped?” The defense objected on hearsay grounds.

Assuming the victim’s statements are hearsay, which is inadmissible unless an exclusion or exception applies, how should the court rule on the objection?

Answer 4

The court should overrule the objection. Although the victim’s statements to his cellmate are hearsay, they are admissible as excited utterances. Hearsay is admissible as an excited utterance if: (1) there is a startling or exciting event, (2) the declarant makes a statement while under the stress of the event, and (3) the statement relates to the event. The statement and the startling event need not be contemporaneous. The totality of the circumstances determines if the declarant was under the stress of a startling event at the time the statement was made.

Here, the kidnapping and torture were startling events. The declarant was still shaking and crying, which indicates that he was under the stress of the event. Finally, the statement directly relates to the event. The statement is admissible under the excited-utterance hearsay exception. Thus, the court should overrule the objection.

Question 5

Are hearsay statements describing an emotional or physical condition generally admissible? (Q)

Answer 5

Yes. The state-of-mind exception admits statements describing the declarant’s then-existing state of mind, emotional condition, sensory condition, or physical condition.

Thus, a declarant’s statement regarding his or her current motive, intent, plan, pain, sensation, mental health, or physical health is admissible under the state-of-mind exception.

(FRE 803(3))

Question 6

Are hearsay statements describing an emotional or physical condition generally admissible to prove the cause of the condition? (Q)

Answer 6

No. Hearsay statements describing an emotional or physical condition are not generally admissible to prove the cause of the condition.

(FRE 803(3))

Question 7

Are hearsay statements describing an intent or plan admissible to prove subsequent acts? (Q)

Answer 7

Yes. Hearsay statements describing an intent or plan are admissible to prove subsequent acts under the state of mind exception. A declarant’s hearsay statement regarding intent or plan is admissible to show that the declarant later acted in accordance with that intent or plan.

Ex: Thus, a deceased declarant’s hearsay statement that the declarant planned to leave town with another person is admissible both to show that the declarant planned to leave town and to show that the declarant left as planned.

(FRE 803(3))

Question 8

The defendant was charged with attempted murder after allegedly dissolving poison in his wife’s drink. The wife telephoned a friend for help and said, “I feel horrible. I think my husband put something in my drink.” At trial, the prosecution called the friend to testify to the wife’s statements. The defense objected and argued that the wife’s statements were inadmissible hearsay. The prosecution argued that, although the statements are hearsay because each was being offered to prove the truth of the matter asserted in the statement, each statement was admissible.

Should the court admit the statement “I feel horrible,” “I think my husband put something in my drink,” neither, or both? (Q)

Answer 8

“I feel horrible” is admissible; “I think my husband put something in my drink” is not. Hearsay describing a current state of mind, or an emotional, sensory, or physical condition, is admissible to prove the state of mind or condition—but not the reason for the state or condition, unless it relates to the validity or terms of the declarant’s will.

Here, “I feel horrible” describes the wife’s emotional and physical condition, so it is admissible. However, “I think my husband put something in my drink” describes the reason for the condition and is unrelated to the validity or terms of a will. Thus, “I feel horrible” is admissible under the state-of-mind exception, but “I think my husband put something in my drink” is not.

Question 9

What kind of statement is “My back really hurts.”? (Russo)

Answer 9

This statement is a state of mind because the person is experiencing it now. (3/5)

Question 10

What does FRE 803 govern? (LII)

Answer 10

FRE 803 governs exceptions to the rule against hearsay.

Question 11

What does FRE 803(1) govern? (LII)

Answer 11

FRE 803(1) governs present sense impressions.

Question 12

What does FRE 803(2) govern? (LII)

Answer 12

FRE 803(2) governs excited utterances.

Question 13

What does FRE 803(3) govern? (LII)

Answer 13

FRE 803(3) governs then-existing mental, emotional, or physical conditions (the state-of-mind exception).