The True Exceptions and Dan the Dreadful Declarant

The “True” Exceptions and Dan 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) 803(1) Statement must 803(2) an event or condition. The event or condition Must be 803(1) . The 803(2) Statement must be made while the declarant is 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 • 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 The re i eas sa ier n wa y

Hearsay is admissible if it relates to execution, revocation, terms or identity of declarants’ will

Hillmon Problem I intend to go to Chicago I really do intend to go to Chicago Since , intended to go, it is SML that he went Jury

People who say they have a mental state are SML to have it I intend to go to KC People who intend to do something are SML to do it He actually intended to go to KC He went to KC OK Under Hillmon

People who say they have a mental state are SML to have it I believe I went to KC If someone believes something, it is SML to be true He believes he went to KC He went to KC No! Belief to prove fact believed.

People who say they have a mental state are SML to have it I remember going to KC If someone remembers something, it is SML to have happened He has a memory of going to KC He went to KC 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 Oh my God, on the phone and John is suddenly he said pointing a gun at me! Jury

Dead Dan 2 I was talking to Dan Excuse me on the phone and for a second. he said John just came in Jury

Dead Dan 3 I was talking to Dan I’m worried. Five minutes on the phone and ago, John he said threatened me with a gun. Jury

Dead Dan 4 I was talking to Dan John is on the phone and coming over he said here this afternoon. Jury

Drowned Dan

Drowned Dan 1 I was talking to Dan I’m going to on the phone and John’s he said house this afternoon Jury

Drowned Dan 2 I was talking to Dan I’m going for on the phone and a walk with he said John this afternoon Jury

Drowned Dan 3 I was talking to Dan I’m going for a walk with on the phone and John by the he said river this afternoon Jury

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 or Statement must describe or Statement will be admissible only if it is

803(4) – Medical Diagnosis or Treatment Statement must be for the purpose of Medical treatment or Diagnosis (Testifying Dr) Statement must describe Present or past symptoms or Medical History Inception, general cause, external source Statement will be admissible only if it is Reasonably pertinent to diagnosis or treatment

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

Problem 35 Do Problem 35