Chapter 3 - §3. Exception—Statement of past condition

• Jurisdiction: United States

§3. Exception—Statement of past condition

A declarant's statement about her past 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. §1251.

§3.1. Overview. The declarant's "statement of memory or belief of [her own] past mental or physical state" can be introduced to prove a "previous mental or physical state when the previous mental or physical state is itself an issue in the case." 7 Cal. Law Revision Comm'n Rep. (1965) p. 1237. The exception for a statement about past state of mind, emotion, or physical sensation applies only when the declarant is unavailable. Id. This requirement is imposed because the statement recites a past condition and there is greater danger of mistaken recollection or fabrication. Id.

Federal Comparison The FREs have no provision comparable to Evid. C. §1251. But the FREs do permit a statement "made for medical diagnosis or treatment" if it "describes medical history; past or present symptoms or sensations; their inception; or their general cause." FRE 803(4). California does not have a specific hearsay exception for statements made to a doctor in connection with treatment or diagnosis, except in the case of children. See Evid. C. §1253.

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

1. Statement concerned past condition. The statement must concern the declarant's own past state of mind, emotion, or physical sensation (including her intent, plan, motive, design, mental feeling, pain, or bodily health). Evid. C. §1251.

2. Statement offered for proper purpose. The statement must be offered to prove the declarant's past state of...