Hearsay Exception #3 – Then-Existing Mental, Emotional or Physical Condition

February 2, 2014

The third hearsay exception – TRE’s 803(3) then existing mental, emotional or physical condition – is also similar to the first hearsay exception, the present sense impression.  As its name implies, this exception applies to statements about a declarant’s state of mind at the time the statement is made.  Included within this exception are statements about thoughts, emotions, sensations and physical condition.

Texas courts have held that the type of statement contemplated by this rule would include a statement which, on its face, expresses or exemplifies the declarant’s state of mind, e.g., fear, hate, love, pain. What isn’t included in the exception are statements of memory or belief.*  As with the excited utterance, this exception includes an element of contemporaneity. Once the subject matter sensation has passed, a declarant’s statement about it no longer falls within this exception.

Likewise, while a statement regarding the existence of a mental, emotional or physical condition falls within this exception, its cause does not. One federal court has explained this distinction this way:

A (declarant may say) “I am scared,” but not “I am scared because the defendant threatened me.” The first statement indicates an actual state of mind or condition, while the second statement expresses belief about why the declarant is frightened. The phrase “because the defendant threatened me” is expressly outside the state-of-mind exception because the explanation for the fear expresses a belief different from the state of mind of being afraid.

That being said, don’t let the inquiry stop there.  In the above example a creative lawyer still might manage to get both statements into evidence by looking to other hearsay exceptions.  Depending upon the circumstances under which the statement “the defendant threatened me” was made, the latter statement, while not falling within the state of mind exception, might constitute an excited utterance discussed in the last post.

Most understand the notion of objecting to evidence on the grounds of “double hearsay” (hearsay-within-hearsay); don’t forget the possibility of offering evidence under a “double hearsay exception” as well.

– Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas

*(unless the statement is related to the execution, revocation, identification or terms of a declarant’s will)


Silence as Evidence

August 21, 2011

Earth Day,  1971.  Keep America Beautiful launches a TV ad featuring scene-after-scene of polluted rivers, trash-strewn highways, mountainous landfills and billowing industrial smokestacks, ending with a close-up of an American Indian with a single tear flowing down his cheek.  Not a word was spoken during that 60-second span, yet anyone who saw it is unlikely to ever forget the message.  In fact, even today that commercial is considered one of the most powerful and successful ad campaigns of all time, demonstrating how silence sometimes speaks louder than words.

There are two basic types of silence which are of concern in evidentiary law.  The last blog focused upon mere silence accompanied by no other conduct which would indicate an intention to communicate.  As discussed, under certain circumstances, this type of silence is admissible as an admission.

The second type of silence is nonverbal conduct which substitutes for a verbal expression.  This often involves facial expressions or gestures, such as the single tear rolling down the cheek, the pointing of a finger or the nod of a head.  These forms of nonverbal communication may also, under certain circumstances, be admissible, but because they are meant to substitute for verbal communication, they are admissible only if the hearsay objection can be overcome.

Texas Rules of Evidence 801(d) defines hearsay as “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”  At first blush, this rule would not encompass nonverbal acts.  However, Rule 801(a)(2) defines “statement” to include “nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.”  Therefore, when nonverbal conduct is intended to substitute for verbal expression, it will be treated as though the words implied by the nonverbal conduct were actually spoken.  If the conduct or gesture was made out of court and is offered for the truth of the matter inferred by it, then it is subject to the hearsay bar.

Take note, however, that a nonverbal expression is not a substitute for verbal expression unless it was intended to be one.  Both the Texas Rules and the Federal Rules of Evidence provide that nonverbal expressions are considered hearsay only when the nonverbal conduct was “intended as a substitute for verbal expression” or “intended as an assertion,” respectively.  TRE 801, FRE 801.  In fact, this may be the proponent’s best response to a hearsay objection, i.e., that the nonverbal act was not intended as a verbal expression. The burden is on the opponent of the evidence to prove intent, and doubts are generally resolved in favor of admissibility.

There are two other ways for the proponent of the evidence to respond to the hearsay objection.  The first is to argue that the nonverbal statement is not, by definition, hearsay.  The three most common non-hearsay situations are:

  1. when it’s not offered for the truth of the matter asserted — TRE (801)(d);
  2. when it is a prior inconsistent statement — TRE 801(e)(1); and
  3. when it is made by a party-opponent — TRE 801(e)(2).

Even if the nonverbal communication does fit within the definition of hearsay, it still may be admissible as a hearsay exception.  Rule 803 provides a laundry list of exceptions, but those most readily-applicable to nonverbal communication are:

  1. present sense impressions — TRE 803(1);
  2.  excited utterances — TRE 803(2);
  3. statements of existing mental, emotional or physical condition — TRE 803(3);
  4.  statements for the purpose of medical treatment — TRE 803(4); and
  5. statements against interest — TRE 803(24).

If a nonverbal communication falls within one of these, or any other, hearsay exceptions, then it is admissible into evidence as a hearsay exception.

From the opponent’s viewpoint, assuming the proponent has articulated one of these grounds to support his theory of admissibility, then the evidence may still be subject to a Rule 403 objection (probative value substantially outweighed by prejudice, confusion, etc.).  However, Rule 403 should be the argument of last resort. After all, the proponent’s theory of admissibility should not necessarily be conceded, even if it appears facially meritorious.

Many proffers of otherwise hearsay statements on either of the two above-mentioned grounds — as non-hearsay or as a hearsay exception — simply cannot withstand close scrutiny.  For example, an attorney shouldn’t be so quick to accept a proponent’s argument that the statement is offered, not for its truth, but to show motive, when motive isn’t a relevant issue in the case.  Nor, for example, should it be conceded that a gesture made immediately after a traumatic event would fall within the excited utterance exception, absent any supporting evidence that the nonverbal gesture was a spontaneous reaction which was actually related to the event itself, two required elements to prove up an excited utterance exception.

For those who prefer a step-by-step approach to the process of offering and objecting to nonverbal communication:

  1.  The nonverbal act or gesture is offered into evidence.
  2. An objection is lodged that the nonverbal communication was intended as a substitute for verbal expression and is, therefore, inadmissible hearsay. (Without a timely hearsay objection, the evidence is admissible with full probative value, pursuant to TRE 802.)
  3. The proponent of the evidence argues that the nonverbal statement:  (a) was not made with an intention to substitute for verbal expression; (b) is, by definition, not hearsay; or (c) is admissible under one of the hearsay exceptions.
  4. The opponent challenges the proponent’s theory of admissibility, or makes a 403 objection, if applicable.
  5. Await the trial court’s ruling on the matter.

(Practice Note:  As for Step 5, be careful to avoid any nonverbal communication on your own  part.  Neither the dramatic rolling of eyes when you lose nor high-fives when you win are tolerated in most courtrooms.)

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Judicial Admissions Through Statements by Attorneys

August 2, 2011

Anything you say can and will be used against you in a court of law.  Although the importance of this warning in the criminal law context is well understood, lawyers who venture into the arena of civil litigation would do well to consider how that concept might apply to them.

The reality is that any statement, whether oral or in writing, made to the court by an attorney on behalf of his or her client could potentially be used against that client later in court.  And, unfortunately, the more articulate, lucid and straight-forward the statement, the more likely it is to get the client into trouble.

It is well-settled in Texas law that any assertion of fact not pleaded in the alternative which appears in a party’s live pleadings will be regarded as a formal judicial admission.  Houston First American Savings v. Musick, 650 S.W.2d 764 (Tex. 1983).  As long as the admission stands unretracted, the fact admitted is accepted as true.  Texas Processed Plastics, Inc. v. Gray Enterprises, Inc., 592 S.W.2d 412 (Tex. App. – Tyler 1979).  As with other types of judicial admissions, the statement must be deliberate, clear and unequivocal.  Id.  

Over the years, this rule has expanded beyond live pleadings, to statements made in briefs and other motions, as well as arguments made by attorneys during hearings and at trial, including:

  • Remarks at Charge Conferences:  Attorney’s stated rationale for not lodging an objection to the omission of a separate damage question – that he agreed that the damages already sought under a different legal theory would be the same – was held sufficient to bind his client to that position.  American National Petroleum Co. v. TransContinental Gas Pipeline Corp., 798 S.W.2d 274 (Tex. 1990).
  • Argument at Trial:  Urging the statement-by-agent hearsay exception as one ground for admissibility of declarant’s statement was an admission establishing that the declarant was his client’s agent as a matter of law.  Carroll Instrument Co., Inc. v BWB Controls Inc., 677 S.W.2d 654 (Tex. App. – Houston [1st Dist.] 1984).  
  • Stipulations:  Stipulation by a party that he signed an instrument in the capacity of guarantor is a judicial admission requiring no written evidence of guaranty status, notwithstanding the Statute of Frauds.  Menendez v. Texas Commerce Bank, 730 S.W.2d 14 (Tex. App. – Corpus Christi 1987).

Perhaps the biggest trap for the unwary is in summary judgment proceedings.  While it is elementary that pleadings do not constitute summary judgment proof, an exception is made for the admissions contained therein.  Judicial admissions contained in pleadings may be used to support a summary judgment.  Underhill v. Jefferson County Appraisal District, 725 S.W.2d 301 (Tex. App. – Beaumont 1987).

The easiest trap to avoid is typographical errors.  In De La Fuente v. Home Savings Assn., what appeared to be a typographical error as to a particular date in a live pleading was held to conclusively prove that a note was assigned to a third party on the very same day that it was executed, rendering it void and unenforceable by law.  669 S.W.2d 137 (Tex. App. – Corpus Christi 1984) (providing yet another reason to avoid over-reliance on spell-check).

Fortunately, there are some safe harbors: 

  • Law vs. Fact:  An attorney can’t judicially admit what the law is or a legal conclusion to be drawn from facts pleaded.  Barstow v. Texas, 742 S.W.2d 495 (Tex. App. – Austin 1988); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex. App. – Amarillo 1967).  Keep in mind, however, that while the law itself cannot be judicially admitted, judicial error can. Flores v. Texas Department of Health, 835 S.W.2d 807 (Tex. App. – Austin 1992) (holding that the defendant’s assertion that he agreed with plaintiff that a particular finding of fact was not supported by the evidence was not “mere acquiescence to appellant’s argument” but a judicial admission “amounting to a confession of error.”) 
  • Impressions vs. Facts:  Statements which are merely impressions may not be sufficiently clear and unequivocal to be considered a judicial admission.  National Savings Insurance Co. v Gaskins, 572 S.W.2d 573 (Tex. App. – Ft. Worth 1978).
  • References:  Simple reference to another party’s affidavit will not constitute an admission that the facts contained therein are true.  American Casualty Co. v. Conn, 741 S.W.2d 536 (Tex. App. – Austin 1987).  Take care, however, when you assume for purposes of argument that your opponent’s position is true, to clearly demonstrate the conditional nature of your argument.  Hill v. Steinberger, 827 S.W.2d 58 (Tex. App. – Houston [1st Dist.] 1992) (wherein movant “accepted as true” all the factual allegations contained in his opponent’s original petition, thereby defeating his own summary judgment motion).
  • Damage Control:  By amending, withdrawing or retracting, you can at least eliminate the binding effect of an admission.  However, the pleading will still remain a statement “seriously made” and can be introduced in evidence as an admission against interest.  Kirk v. Head, 152 S.W.2d 726 (Tex. 1941).  This is very tricky business, however.  While a request made in final argument for a court to “overlook” an erroneously pleaded fact will not undo the admission, De La Fuente at 145, pleading the opposite or an inconsistent fact in the same document will.  Texas Processed Plastics at 416.

Finally, in an elegant twist of irony that could find its place only in the law, simple ineptitude may be the one sure thing to keep an attorney out of trouble.  Canales v. Canales, 683 S.W.2d 77 (Tex. App. – San Antonio 1984) (The transcript of the hearing “fails to convey with any degree of lucidity what was actually said or meant by the attorney.  There can be no judicial admission under those circumstances.”)

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


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