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

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)

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

  1. Erin says:

    Hi, do you know where I can find the source of that Federal Court quote? Thanks.

    • According to my notes, it can be found at: Delapaz v. State, 228 S.W.3d 183, 207 (Tex. App. — Dallas 2007, pet ref’d) (citing United States v. Ledford, 443 F.3d 702, 709 (10th Cir. 2005). Please let me know if you don’t find it there and I’ll look again.

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