Hearsay Exceptions: Then Existing Mental, Emotional, or Physical Condition

I’ve previously blogged about hearsay exceptions for admissions by party-opponents (here), present sense impressions and excited utterances (here), and statements for purposes of medical diagnosis and treatment (here). In this post I’ll focus on the Rule 803(3) exception for statements of then existing mental, emotional, or physical condition. Remember that unlike the Rule 804 exceptions, the Rule 803 exceptions don’t require unavailability. N.C. Rule 803(3) provides a hearsay exception for statements “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 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.”

In criminal cases this exception often is used to admit a murder victim’s statement that he or she fears the defendant. See, e.g., State v. Anthony, 354 N.C. 372, 405 (2001); State v. Thibodeaux, 352 N.C. 570, 578 (2000); State v. Gary, 348 N.C. 510, 522 (1998). Such evidence typically is deemed relevant because it shows the status of the relationship between the defendant and the victim. See, e.g., Thibodeaux, 352 N.C. at 578. The victim need not expressly state his or her fear of the defendant for the statement to fall within this exception. In State v. Dawkins, 162 N.C. App. 231, 235 (2004), for example, the victim gave a witness photographs showing the victim with a black eye and told the witness to keep the photographs “and if anything should happen, to give them to the police.” The court held that although the statement itself contained “no express declaration of fear . . . the attendant circumstances [gave] context to the victim’s statement and clearly reflect the victim’s fearful state of mind.” In sexual assault cases, the victim’s statements indicating fear of the defendant have been held admissible under this exception and relevant to whether the activity was committed by force and against the victim’s will. State v. Locklear, 320 N.C. 754, 760 (1987).

Another common scenario when this exception arises is when a statement shows the declarant’s intent to engage in a future act. Consider the following statement made by a murder victim to a neighbor: “I’m not feeling well today. I am about to leave to spend the night at my boyfriend’s house so that he can keep an eye on me.” This statement could be admitted under the Rule 803(3) exception to establish circumstantially that the victim was at her boyfriend’s house on the night of her murder. See, e.g., State v. Anthony, 354 N.C. 372, 405 (2001) (in a murder case, the victim’s statements that she intended to go to court the next day to get a domestic violence protective order and restraining order were admissible as her then existing intent and plan to engage in a future act); State v. Braxton, 352 N.C. 158, 190-91 (2000) (a declarant’s statement that he was going to approach the defendant about straightening out the alleged debt owed by the victim was admissible under this rationale); State v. Coffey, 326 N.C. 268, 286 (1990) (statement by child murder victim that she was going fishing with a nice gray-haired man on the day she disappeared was admissible under this exception). When offered to show the declarant’s intent to engage in a future act, there is no temporal requirement between the statement and the act intended. State v. Taylor, 332 N.C. 372, 386-87 (1992).

Sometimes statements of emotion will be accompanied by factual statements. For example, the victim/declarant says: “I’m afraid of the defendant because he has beaten me up before.” The first part of the victim’s statement recounts an emotion and is admissible under the rule. The second part recounts a fact. A party may seek to exclude factual statements, like those in this example, arguing that the exception–by its terms–does not include a statement of memory or belief to prove the fact remembered or believed. N.C. R. Evid. 803(3). Notwithstanding the text of the Rule, the cases hold that statements of fact providing context or a basis for expressions of emotion are admissible under this exception. State v. Smith, 357 N.C. 604, 609-10 (2003); State v. Murillo, 349 N.C. 573, 588 (1998); State v. Alston, 341 N.C. 198, 229-30 (1995). These cases seem to stand for the proposition that factual statements made in isolation and unaccompanied by statements of emotion are inadmissible under Rule 803(3), but statements of fact that relate to an expression of emotion are admissible. While a useful guide, not all cases adhere to this general rule, suggesting that there is room for argument by the parties. See, e.g., State v. Cummings, 326 N.C. 298, 312-13 (1990) (victim/declarant’s statements recounting several occasions when the defendant had beaten her and that he had threatened to kill her if she tried to take back her children from him were admissible); State v. Gary, 348 N.C. 510, 521-22 (1998) (victim’s statement, “He told me he’d kill me if I left him” was admissible).