§ 33.07 Present Physical Condition: FRE 803(3)

• Jurisdiction: United States

§ 33.07 Present Physical Condition: FRE 803(3)

In addition to mental condition, Rule 803(3) covers statements of present physical condition (e.g., mental feeling, pain, or bodily health). The reliability of these statements (e.g., "My back hurts"; "I feel great"; "I'm in pain.") rests on a reduced memory risk because the statement is made contemporaneously with the condition, and there is little risk in misperceiving one's own physical condition. In addition, this exception may be justified on the grounds that the out-of-court statement is often more reliable than in-court testimony, which takes place after litigation has commenced and motivations are more suspect.

Present (not past) conditions. The critical requirement is that the statement relate to a present condition and not to past conditions, pains, or symptoms. The statement must be contemporaneous...