2. The “True” Exceptions and Dan the Dreadful Declarant

3. Unrestricted Exceptions (First Group)

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

5. Problem 31 Do Problem 31

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

7. 803(1): Present Sense Impressions – Elements Elements –Statement describing Event, or Condition –Made While observing, or Immediately thereafter

8. 803(1): Present Sense Impressions – Problem Areas Problem areas: –How soon is immediately? –Contrast between “Describing...” “Relating to...”

9. 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

10. 803(2): Excited Utterances – Problem Areas Problem Areas: –“Relating to...” –How does one prove “startlingness”? –How long is one “still under stress”?

11. Problem 32 Do Problem 32

12. 803(3) – Mental, Emotional or Physical Condition -- Elements Elements –Statement of declarant’s State of mind Emotion Sensation Physical condition –Made at the time

13. 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

14. 803(3): Mental, Emotional or Physical Condition – Problem Areas Hillmon Wills

15. 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

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

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

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

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

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

21. 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

22. 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)

23. Dead Dan

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

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

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

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

28. Drowned Dan

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

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

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

32. Problem 33 Do Problem 33

33. Problem 34 Do Problem 34

34. 803(4) – Statements for Medical Diagnosis or Treatment Three Elements Purpose of the statement Subject Matter of the statement Pertinence of the statement

35. 803(4) – Medical Diagnosis or Treatment Statement must be for the purpose of Statement must describe Statement will be admissible only if it is or

36. 803(4) – Medical Diagnosis or Treatment Statement must be for the purpose of Statement must describe Statement will be admissible only if it is Medical treatment Diagnosis (Testifying Dr) Present or past symptoms Medical History Inception, general cause, external source Reasonably pertinent to diagnosis or treatment or

37. 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.

38. Problem 35 Do Problem 35