The “True” Exceptions and Dan the Dreadful Declarant

1. The “True” ExceptionsandDan the Dreadful Declarant

2. Unrestricted Exceptions(First Group)

3. Four Related Exceptions • Present Sense Impressions • Excited Utterances • Statements of Existing Mental, Physical or Emotional Condition • Statements for Purpose of Medical Diagnosis or Treatment

4. Problem 31 Do Problem 31

5. Contrast 803(1) With 803(2) 803(1) Statement must an event or condition. The event or condition Must be . The Statement must be made while the declarant is 803(2) 803(1) 803(2) or 803(1) 803(2)

6. 803(1): Present Sense Impressions – Elements • Elements • Statement describing • Event, or • Condition • Made • While observing, or • Immediately thereafter

7. 803(1): Present Sense Impressions – Problem Areas • Problem areas: • How soon is immediately? • Contrast between • “Describing. . .” • “Relating to. . .”

8. 803(2): Excited Utterances – Elements • Elements • Statement relating to a startling • Event, or • Condition • Made while • Still under stress • Made by • Declarant with personal knowledge

9. 803(2): Excited Utterances – Problem Areas • Problem Areas: • “Relating to. . .” • How does one prove “startlingness”? • How long is one “still under stress”?

10. Problem 32 Do Problem 32

11. 803(3) – Mental, Emotional or Physical Condition -- Elements • Elements • Statement of declarant’s • State of mind • Emotion • Sensation • Physical condition • Made at the time

12. 803(3): Mental, Emotional or Physical Condition – Exceptions • Proponent may not use • Declarant’s statement that he • Remembered something,” or • Believed something • To prove that the “fact” declarant “remembered” or “believed” was true

13. 803(3): Mental, Emotional or Physical Condition – Problem Areas • Hillmon • Wills

14. Statements Regarding Wills:An Exception to an Exception to an Exception • You can’t use hearsay • But you can use hearsay to show state of mind • But you can’t use state of mind (memory) to prove thing remembered. • But you can if it relates to execution, revocation, terms or identity of declarants’ will There is an easier way

15. Hearsay is admissible if it relates to execution, revocation, terms or identity of declarants’ will

16. Hillmon Problem Since , intended to go, it is SML that he went Jury I really do intend to go to Chicago I intend to go to Chicago

17. People who say they have a mental state are SML to have it People who intend to do something are SML to do it He actually intended to go to KC He went to KC I intend to go to KC OK Under Hillmon

18. People who say they have a mental state are SML to have it If someone believes something, it is SML to be true He believes he went to KC He went to KC I believe I went to KC No! Belief to prove fact believed.

19. People who say they have a mental state are SML to have it If someone remembers something, it is SML to have happened He has a memory of going to KC He went to KC I remember going to KC No! Memory to prove fact remembered.

20. Hillmon Doctrine • Declarant’s out of court statement of • Present intent • To do future act • Can be used to prove • Doing of future act • By declarant • Maybe by joint actor

21. Compare the following: • I am going to KC with my briefcase • I am going to KC with my dog • I am going to KC with my 3 yr old • I am going to KC with my 16 yr old • I am going to KC with Fred (an adult) • I’m meeting Fred in KC • F & I are playing bridge in KC tomorrow • F & I are going to KC tomorrow on TWA Flight 100 (to prove Flight 100 went)

22. Dead Dan

23. Dead Dan 1 Jury Oh my God, John is pointing a gun at me! I was talking to Dan on the phone and suddenly he said

24. Dead Dan 2 Jury Excuse me for a second. John just came in I was talking to Dan on the phone and he said

25. Dead Dan 3 Jury I’m worried. Five minutes ago, John threatened me with a gun. I was talking to Dan on the phone and he said

26. Dead Dan 4 Jury John is coming over here this afternoon. I was talking to Dan on the phone and he said

27. Drowned Dan

28. Drowned Dan 1 Jury I’m going to John’s house this afternoon I was talking to Dan on the phone and he said

29. Drowned Dan 2 Jury I’m going for a walk with John this afternoon I was talking to Dan on the phone and he said

30. Drowned Dan 3 Jury I’m going for a walk with John by the river this afternoon I was talking to Dan on the phone and he said

31. Problem 33 Do Problem 33

32. Problem 34 Do Problem 34

33. 803(4) – Statements for Medical Diagnosis or TreatmentThree Elements • Purpose of the statement • Subject Matter of the statement • Pertinence of the statement

34. 803(4) – Medical Diagnosis or Treatment Statement must be for the purpose of or Statement must describe or Statement will be admissible only if it is

35. 803(4) – Medical Diagnosis or Treatment Statement must be for the purpose of Medical treatment Diagnosis (Testifying Dr) or Statement must describe Present or past symptoms Medical History Inception, general cause, external source or Statement will be admissible only if it is Reasonably pertinent to diagnosis or treatment

36. Patricia sues Dan alleging leg injury only At Patricia’s lawyer’s request, I examined her to determine the extent of her injuries: Patricia told me her leg hurt terribly. Patricia told me her head hurt terribly. Patricia told me Dan hit her with a baseball bat. Patricia told me she had had three abortions Patricia told me she used to have a drug abuse problem. Patricia told me she currently has a drug abuse problem.

37. Problem 35 Do Problem 35