RULE 803(3), STATEMENTS OF THEN-EXITING MENTAL CONDITION, AND OTHER "STATE OF MIND" RESPONSES TO A HEARSAY EXCEPTION.

There is a hearsay exception for statements of then-existing mental condition. If a defendant is charged with robbery and one of the elements of robbery is that the victim has been put in fear by the defendant's use of a weapon, then a witness to the robbery may testify that when the robber pointed the gun at the victim, the victim said "I am afraid."

However, there are at least seven other "state of mind" responses one can make to a hearsay objection, making this a very tricky area. They are:

1. The statement describes the declarant's own state of mind and is offered to prove the declarant's state of mind. This is Rule 803(3), state of mind exception, because the statement is coming in for its truth.

2. The statement describes the declarant's own state of mind and is offered to prove the declarant's state of mind and the declarant is the opposing party. For example, the State must prove the defendant intended to kill the victim, and calls witnesses to testify that the defendant said he intended to kill him. This is exempted from hearsay as the admission of the party-opponent.

3. The statement describes the declarant's own state of mind and is offered to prove a state of mind of the declarant other than the one expressed in the statement. For example, the declarant says "I hate my brother," offered not to show that he hates his brother but that he intended to omit his brother from his will. This is not hearsay because it is not being offered for its truth.

4. The statement describes the declarant's own state of mind and is offered to prove that the declarant acted in conformity with the state of mind. For example, a witness testifies that the victim of a homicide said that she intended to visit the defendant's apartment, offered to show that she in fact went to the defendant's apartment the night she was killed. Not hearsay because not offered for the truth of her intent, but as circumstantial evidence of her conduct.

5. The statement describes the declarant's own state of mind and is offered to prove someone else's state of mind. For example, a witness testifies that the victim told the defendant he hated him and intended to kill him, offered by the defense to show his own fear of the victim that caused him to act in self-defense. Not hearsay, because not coming in for its truth, but for the effect it had on the accused.

6. The statement describes the declarant's own state of mind and is offered because a state of mind is a legal element of the cause of action. For example, a transfer is a gift only if the donor intends it to be a gift, e.g., a witness testifies that the donor said "I intend this as a gift" while transferring property. Not hearsay because words have independent legal significance.

7. The statement does not describe the declarant's state of mind, but is circumstantial evidence of the declarant's state of mind. For example, the declarant says "The ring I got for Cindy sure was expensive," offered as circumstantial evidence of declarant's intent that the ring be a gift. Not hearsay because not offered for its truth.

Consider the following hypothetical:

The wealthy and eccentric Big Daddy Pollitt dies, leaving two heirs: Brick (married to Maggie) and Gooper (married to Mae). Upon learning of Big Daddy's death, Gooper and Mae drive a rental truck to Big Daddy's house and take all the valuable artwork, jewelry, antiques, silver, furniture, and the 1957 Cadillac El Dorado Convertible. Big Daddy's will left everything to the two sons equally, but there was little left in the estate after Gooper got through cleaning it out. Brick and Maggie want half the stuff returned. Gooper and Maw claim the things they took were gifts from Big Daddy.

1. Gooper testifies that shortly before he died, Big Daddy told him that the contents of the house were gifts to him and Mae. What response to a hearsay objection?

2. Gooper testifies that shortly before he died, Big Daddy told him he was grateful to Gooper and Mae for living nearby and giving him five grandchildren, and angry at Brick and Maggie for moving away and having no children. What response to a hearsay objection?

3. Gooper calls the Nurse who testifies that Big Daddy told her he wanted to give the keys to the Cadillac to Gooper before he died. What response to a hearsay objection?

4. Gooper testifies that he went to the hospital to visit Big Daddy, and just before Big Daddy gave him the keys to the Cadillac, Daddy got a phone call on the speaker phone from Maggie who said she and Brick were planning on going on a cruise to the Caribbean and would not be able to attend Big Daddy's 70th birthday party. What response to a hearsay objection?

5. Gooper testifies that Big daddy handed him the keys to the Cadillac and said, "The Caddy's in the garage at the beach house." What response to a hearsay objection?

For the answers, click here .