Current State of Mind, Fed.R.Evid. 803(3): Intent of Another as Multiple Level Hearsay; Relevance and Admissibility in Domestic Violence Cases

Abstract

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health) is admissible under hearsay exception Fed.R.Evid. 803(3).

A difficult problem arises when the declarant's statement of intention is to do something with another person. Analysis must begin with Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909 (1892) where the Supreme Court approved introduction of a statement of intent of a declarant to infer not only the declarant's future act but the future act of another.

“The letters . . . were competent not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon than if there had been no proof of such intention.”

The position adopted in Hillmon is not without theoretical difficulties.

“When hearsay evidence concerns the declarant's statement of his intention to do something with another person, the Hillmon doctrine requires that the trier of fact infer from the state of mind of the declarant the probability of a particular act not only by the declarant but also by the other person. Several objections can be raised against a doctrine that would allow such an inference to be made. One such objection is based on the unreliability of the inference but is not, in our view, compelling. A much more significant and troubling objection is based on the inconsistency of such an inference with the state of mind exception. This problem is more easily perceived when one divides what is really a compound statement into its component parts. In the instant case, the statement by Larry Adell, ‘I am going to meet Angelo in the parking lot to get a pound of grass’, is really two statements. The first is the obvious statement of Larry's intention. The second is an implicit statement of Angelo's intention. Surely, if the meeting is to take place in a location which Angelo does not habitually frequent, one must assume that Angelo intended to meet Larry there if one is to make the inference that Angelo was in the parking lot and the meeting occurred. The important point is that the second, implicit statement has nothing to do with Larry's state of mind. For example, if Larry's friends had testified that Larry had said, ‘Angelo is going to be in the parking lot of Sambo's North tonight with a pound of grass’, no state of mind exception or any other exception to the hearsay rule would be available. Yet, this is in effect at least half of what the testimony did attribute to Larry.” United States v. Pheaster, 544 F.2d 353, 376-77 (9th Cir. 1976).

A statement of intent incorporating the intent to act of another involves two separate often hearsay statements thus bringing into play Fed.R.Evid. 805 as well as the very important principles governing the admissibility of multiple level hearsay universally applied in the context of both business records, Fed.R.Evid. 803(6) and public records, Fed.R.Evid. 803(8).

Assume Mary is found murdered in an alley behind the Red Fox Inn in the early morning hours. Many witnesses place Mary at the bar in the establishment the evening before from around 9:00 p.m. until sometime after 11:00 p.m. The coroner places the time of death between 11:00 p.m. and 1:00 a.m. Mary had said to her girlfriends over lunch that day, “I am going to meet Tom tonight at the Red Fox Inn.” Tom, her ex-husband, is the prosecution’s principle person of interest. Tom, when interviewed by the police, denies being at the Red Fox Inn that evening, providing a weak alibi defense. No witnesses can place Tom at the Red Fox Inn the evening of the murder, although a car similar to one registered to Tom was seen parked two blocks away in the alley leading behind the Red Fox Inn. Mary’s statement is, of course, in fact two statements. The first statement expressed implicitly — “Tom told me he is going to the Red Fox Inn tonight,” is a statement of Tom’s current state of mind the accompanies Mary’s current state of mind — “I am going to the Red Fox Inn tonight.”

In spite of the theoretical difficulties arising out of the foregoing statements failure to satisfy the Johnson v. Lutz multiple level requirements that govern the admissibility of business and public records, Fed.R.Evid. 805 on its surface imposes no such requirements generally to multiple level statements. Equally, if not more importantly, the text of Fed.R.Evid. 803(3) fails to address the question of admissibility of a statement of intent as evidence of the future actions of another. The Advisory Committee's Note implies admissibility in its statement that the doctrine of Hillmon is left undisturbed. On the other hand the Report of the House Committee on the Judiciary states an intention that Fed.R.Evid. 803(3) be construed to limit the doctrine of Hillmon, so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person. Neither the Report of the Senate Committee on the Judiciary nor the Conference Report speaks to the issue. The legislative history is thus inconclusive. Another factor tending to promote admissibility is the realization that admitting the declaration accompanied by a limiting instruction to the jury, Fed.R.Evid. 105, to consider the statement as bearing only upon the actions of the declarant, but not upon the other party mentioned in the statement, is asking the impossible.

In short, if the choice, as thus defined, is between admission for an inference of future conduct as to both the declarant and another under Hillmon, or in the alternative exclusion under Fed.R.Evid. 403, the incorporation of the Johnson v. Lutz principles directly, application of Fed.R.Evid. 807, or resort to Fed.R.Evid. 805, it is easy to see why trustworthy evidence necessary to the litigation, i.e., Mary’s statement, has generally been admitted at common law under Hillmon despite its awkward relationship to the rule against hearsay and its exceptions. The resolution adopted in several state evidence codes is to address the Hillmon another person’s intent admissibility question head on and incorporate an inadmissible conclusion. See, e.g., Ill.R.Evid. 803(3):

Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling pain, and bodily health), but not including:

(A) a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will; or

(B) a statement of declarant’s then existing state of mind, emotion, sensation, or physical condition to prove the state of mind, emotion, sensation, or physical condition of another declarant at that time or at any other time when such state of the other declarant is an issue in the action.