Section 16.18 Declaration of Mental, Emotional, or Physical Condition

• Library: Evidence 2017

D. (§16.18) Declaration of Mental, Emotional, or Physical Condition

The hearsay exception for declaration of a mental, emotional, or physical condition is a variation of the exceptions for present sense impressions and excited utterances. There are two separate exceptions under this general heading:

1. Statements of a condition existing at the time of the statement

2. Statements for purposes of medical diagnosis or treatment

Under the first category, a witness can testify to another’s expression of pain or description of symptoms or effect of illness when the statement was made at the time the declarant was experiencing the pain, symptoms, or ill effects. McHugh v. St. Louis Transit Co., 88 S.W. 853 (Mo. banc 1905); Jones v. Cent. States Oil Co., 170 S.W.2d 153 (Mo. App. E.D. 1943); Kickham v. Carter, 335 S.W.2d 83 (Mo. 1960). The statement may be one that was made to a layperson. Jones, 170 S.W.2d at 159. The exception extends to a person’s mental conditions. State v. Taylor, 298 S.W.3d 482, 493 (Mo. banc 2009). “Mental condition” can include motive or intent, In re Estate of Dawes, 891 S.W.2d 510, 519–20 (Mo. App. S.D. 1994), and plan or design, Weber v. Les Petite Academies, 548 S.W.2d 847, 851 (Mo. App. E.D. 1976). And, in addition to the timing requirements, the events witnessed must be by the declarant’s own senses. State v. Bynum, 299 S.W.3d 52, 59 (Mo. App. E.D. 2009).

The rationale for admission of these statements is the same as for other spontaneous utterances: The person is describing a presently existing fact and the person’s condition is such that it is likely to overcome any motive to lie about it at the time.

The “state of mind” of the declarant is admissible to establish fear, motive, intent, or present intent to do a particular act. See Mo. Evidence Restated pp. 8–70 to 8–74 (MoBar 5^th ed. 2015). This is an additional exception to the hearsay rule in this category. See State v. Livingston-Rivard, 461 S.W.3d 463, 465–66 (Mo. App. S.D. 2015) (the victim’s out-of-court statements were admissible to show her state of mind/control exercised by the defendant in a prosecution for financial exploitation of the elderly). Cf. State v. Rios, 234 S.W.3d 412, 421–25 (Mo. App. W.D. 2007) (it was error to admit the victim’s statements to show his state of mind when there was no evidence that it involved an act “immediately in the future” and the statements were not relevant).

The second category is more controversial because it allows the admission not...