Chapter 3 - §2. Exception—Statement of then-existing condition

• Jurisdiction: United States

§2. Exception—Statement of then-existing condition

A declarant's statement of her then-existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is admissible as an exception to the hearsay rule. Evid. C. §1250.

Note In addition to the hearsay exception under Evid. C. §1250, statements regarding the declarant's then-existing state of mind can be admitted as nonhearsay circumstantial evidence under certain circumstances. See "Circumstantial evidence of state of mind," ch. 3-B, §2.4.3.

§2.1. Overview. A declarant's statement about her then-existing state of mind, emotion, or physical sensation is admissible as a hearsay exception on "the generally accepted theory that a spontaneous statement descriptive of present pain or other bodily condition is likely to be true." See 1 Witkin, California Evidence (5th ed.), Hearsay, §196. The term "then existing" refers to the declarant's condition at the time of her statement, as opposed to her statement about her condition at some later time, which is covered by Evid. C. §1251. See "Exception—Statement of past condition," ch. 3-B, §3.

Federal Comparison For the admissibility of a declarant's then-existing condition, FRE 803(3) is similar to Evid. C. §1250, except that the federal rule does not specifically list "design" as an example of permitted statements concerning the declarant's state of mind. See FRE 803(3). Unlike the FREs, California law does not have a specific exception for statements of the declarant's condition made for diagnosis or treatment, except in the case of children. See Evid. C. §1253; FRE 803(4); see, e.g., U.S. v. Kootswatewa (9th Cir.2018) 893 F.3d 1127, 1132 (victim's statement to nurse practitioner fell within scope of FRE 803(4)).

§2.2. Requirements for exception. For a hearsay statement about the declarant's then-existing state of mind, emotion, or physical sensation to be admissible as a hearsay exception, the following criteria must be met:

1. Statement concerned then-existing condition. The statement must concern the declarant's own then-existing state of mind, emotion, or physical sensation (including her intent, plan, motive, design, mental feeling, pain, or bodily health). Evid. C. §1250(a).

2. Statement offered for proper purpose. The statement must be offered either (1) to prove the declarant's state of mind, emotion, or physical sensation at some time when that matter is at issue or (2) to prove or explain the declarant's conduct. Evid. C. §1250(a)(1), (a)(2).

(1) To prove state of mind, emotion, or physical sensation. A declarant's out-of-court statement about her then-existing state of mind, emotion, or physical sensation can be admitted as an exception to the hearsay rule if the declarant's state of mind, emotion, or physical sensation is at issue in the case. Evid. C. §1250(a)(1); see People v. Flores (2020) 9 Cal.5th 371, 410; People v. Fayed (2020) 9 Cal.5th 147, 193. See "Disputed facts," ch. 1, §2.1.2. The declarant's statement about her existing state of mind does not need to be made in close proximity to the time that her state of mind is at issue. See Evid. C. §1250(a)(1). A statement is admissible to prove a state of mind at a particular time although it is uttered before or after that time on the theory that the declarant's stream of consciousness has enough continuity that one can be expected to find the same state of mind before or after the statement was made. People v. One 1948 Chevrolet Convertible Coupe (1955) 45 Cal.2d 613, 621. Although the power of the declarant's state of mind at a given point might fade over time, there are no set time limits on the declarant's state of mind. Estate of Truckenmiller (2d Dist.1979) 97 Cal.App.3d 326, 332. Whether the declarant's stream of consciousness was intact or broken by the passage of time is a question for the trier of fact to decide. Id.

(a) Generally. The declarant's state of mind, emotion, or physical sensation is at issue in a case when it is an element of the crime, when it is placed in issue by the defense, or when it is used to establish motive. People v. Riccardi (2012) 54 Cal.4th 758, 816, 820, overruled on other grounds, People v. Rangel (2016) 62 Cal.4th 1192. Although motive is not normally an element of a crime, evidence of motive makes the crime understandable and renders the inferences about the defendant's intent more reasonable. Riccardi, 54 Cal.4th at 815. For evidence of the declarant's state of mind to be used to establish the defendant's motive, however, there must also be independent, admissible evidence that the defendant was aware of the declarant's state of mind (e.g., that the declarant was fearful of the defendant) before the crime was committed and that the defendant may have been motivated by it. Id. at 818-19.

Case study 1. In a murder trial, the defendant was alleged to have killed the decedent by giving him heroin. People v. Taylor (5th Dist.1980) 112 Cal.App.3d 348, 353-54, disapproved on other grounds, People v. Patterson (1989) 49 Cal.3d 615. In defense of the charge, the defendant wanted to offer statements made by the decedent three weeks and three months before his death that he wanted to commit suicide. Taylor, 112 Cal.App.3d at 363. The decedent's suicide declarations were relevant and admissible because they tended to show the victim died by his own hand. Id. at 364.

Case study 2. In a trial for sexual assault of a child, the young victim's statement that her rectum hurt was admissible because...