Hearsay and circumstances of its admissibility - Statements ...

Learning Outcomes

This article examines the hearsay exception for statements of a declarant's then-existing state of mind, emotion, sensation, or physical condition under Federal Rule of Evidence 803(3), including:

• Identifying classic 803(3) statements and separating them from narrative accounts of past events, speculative beliefs, or other hearsay not saved by this exception in typical bar-exam fact patterns.
• Applying the Hillmon doctrine to treat declarations of present intent or plan as circumstantial evidence of the declarant’s later conduct, while recognizing the majority rule limiting inferences about third parties mentioned in the statement.
• Recognizing the Shepard limitation that excludes statements of memory or belief about past facts, except in will-related disputes, and predicting how that limitation affects admissibility on multiple-choice questions.
• Distinguishing present physical-condition statements admissible under FRE 803(3) from past-symptom and cause statements that instead fall, if at all, under the medical-diagnosis exception in FRE 803(4).
• Analyzing mixed statements that combine present condition, past events, and beliefs; parsing the admissible portions from the inadmissible ones; and addressing each hearsay layer separately.
• Comparing hearsay use of state-of-mind statements with nonhearsay uses (such as effect on the listener or circumstantial proof of insanity, fear, or bias) to select the best doctrinal basis for an answer choice.
• Spotting recurring MBE traps involving verb tense, the declarant-versus-third-party distinction, and the declarant’s availability, and using those clues systematically to reach the correct evidentiary ruling.

MBE Syllabus

For the MBE, you are required to understand hearsay and its exceptions, with a focus on the following syllabus points:

• Define hearsay and its general prohibition.
• Identify statements admissible under FRE 803(3) as describing a declarant's then-existing state of mind (motive, intent, plan), emotion, sensation, or physical condition.
• Distinguish these admissible statements from inadmissible statements of memory or belief offered to prove the fact remembered or believed.
• Apply the rule allowing statements of intent (plan) to be used as circumstantial evidence of subsequent conduct (Hillmon doctrine).
• Determine if the statement relates to the declarant's then-existing condition, not past conditions (unless made for medical diagnosis/treatment, a separate exception).
• Recognize that the declarant's availability is immaterial for this exception.

Regarding statements of mental, emotional, or physical condition (FRE 803(3)), you should be prepared to:

• Analyze fact patterns where a declarant’s intent is used to show where the declarant went or what the declarant later did.
• Evaluate mixed statements that combine present condition, past condition, and memories or beliefs, and separate admissible from inadmissible portions.
• Compare the 803(3) state-of-mind exception with nonhearsay “state-of-mind” uses and with the medical-diagnosis exception in FRE 803(4).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. While searching for his missing wife, Husband told a police officer, "I remember my wife telling me last Tuesday that she was going to visit her sister in Chicago this weekend." If offered at a later trial to prove that the wife went to Chicago, this statement is:
   1. Admissible as a statement of the wife's then-existing state of mind (intent).
   2. Admissible as an excited utterance.
   3. Inadmissible hearsay not within the state of mind exception.
   4. Inadmissible because the wife is unavailable.
2. Plaintiff sues Defendant for battery after Defendant punched him. Defendant claims self-defense. Defendant seeks to introduce testimony from Witness that, just before the altercation, Defendant told Witness, "I'm afraid Plaintiff is going to attack me." This statement is:
   1. Admissible to prove Defendant's then-existing state of mind (fear).
   2. Admissible to prove that Plaintiff was actually about to attack Defendant.
   3. Inadmissible hearsay, as it is offered for its truth.
   4. Inadmissible character evidence.
3. Decedent wrote a letter to her friend stating, "I plan to drive to City X tomorrow to meet John." This letter is offered in a subsequent wrongful death action to prove that Decedent went to City X the next day. The letter is:
   1. Inadmissible hearsay.
   2. Admissible as a statement of Decedent's then-existing state of mind (intent) to prove her subsequent conduct.
   3. Admissible only if John testifies.
   4. Inadmissible unless corroborated by other evidence that Decedent went to City X.

Introduction

Hearsay is generally inadmissible unless it falls within a recognized exception or exclusion.

Key Term: Hearsay
An out-of-court statement offered in evidence to prove the truth of the matter asserted.

The bar exam heavily tests your ability to move from a raw statement in a fact pattern to a structured hearsay analysis:

1. Is it an out-of-court “statement”?
2. Is it being offered for its truth?
3. If yes, does any exclusion or exception apply (such as FRE 803(3))?

Key Term: Declarant
The person who made the out-of-c-court statement.

Federal Rule of Evidence 803(3) provides a key exception for statements about the declarant’s own then‑existing internal condition. Because the statement describes what the declarant was thinking or feeling at that very moment, there is less concern about faulty memory; and because internal states are often otherwise unprovable, the rules tolerate some hearsay risk here.

At the same time, Rule 803(3) has sharp limits. It does not generally permit:

• Stories about past events (“yesterday…”)
• Statements of belief used to prove the believed fact (“I think X happened”)

Those are controlled by the Shepard rule and are frequent MBE traps.

It is also important to distinguish:

• The state-of-mind hearsay exception in Rule 803(3), and
• Nonhearsay “state-of-mind use” of a statement (using words as circumstantial evidence that a person was insane, fearful, confused, etc., rather than for their truth).

Key Term: Nonhearsay State-of-Mind Use
Using a statement as circumstantial evidence that the declarant had a particular mental state, without using it to prove the truth of what the statement asserts.

Example: A person says, “I am King Henry VIII.” If offered to show that the person is delusional, the statement is not hearsay at all; it is circumstantial evidence of mental condition. But if offered to prove that he actually is King Henry VIII, it would be hearsay and no exception applies.

Understanding when Rule 803(3) applies—and when you are simply in a nonhearsay “effect on the listener” or “state-of-mind” situation—is critical on the MBE.

The State of Mind Exception: FRE 803(3)

FRE 803(3) allows admission of:

"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), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will."

Key Term: State of Mind Exception
A hearsay exception allowing admission of a statement describing the declarant's then-existing state of mind (e.g., motive, intent, plan) or emotional, sensory, or physical condition (e.g., feeling, pain, health) at the time the statement was made.

Key Term: Then-Existing Condition
A mental, emotional, sensory, or physical state that the declarant is experiencing at the very moment of speaking, not something remembered from the past or anticipated for the distant future.

Rationale and Uses

Courts admit these statements for two main reasons:

• Perception and memory concerns are reduced. The declarant is describing a current internal state, not trying to recall something long past.
• Necessity. Internal states (fear, intent, pain) often cannot be proven adequately except through the declarant’s own words.

These statements can be used in two broad ways:

• When the declarant’s state of mind is directly in issue (e.g., testamentary intent, motive, or sanity).
• When the declarant’s state of mind is used as circumstantial evidence of later conduct (the Hillmon doctrine).

Components of the Exception

FRE 803(3) encompasses several categories of contemporaneous internal states:

1. Then-Existing State of Mind

   This includes statements about the declarant's motive, intent, plan, design, or mental feeling at the time of speaking.

   • Example: “I intend to go to the store” (intent/plan).
   • Example: “I hate him” (hostility—relevant as motive).

   State-of-mind statements are commonly admitted where the mental state itself matters (e.g., “I plan to live in Colorado for the rest of my life” when domicile is in dispute).

2. Then-Existing Emotional or Sensory Condition

   Statements describing contemporaneous emotions or sensations (fear, joy, anxiety, surprise, taste, smell) are covered.

   • Example: “I feel terrified right now.”
   • Example: “This tastes extremely salty.”

3. Then-Existing Physical Condition

   Statements about current bodily health or pain are also included.

   • Example: “My back hurts.”
   • Example: “I feel nauseous.”

   These fall under what many treatises call the “present physical condition” aspect of FRE 803(3).

Key Term: Present Physical Condition Exception
The part of Rule 803(3) that admits statements describing the declarant’s current bodily condition (symptoms, pain, health) made to anyone, not just to medical personnel.

The Hillmon Doctrine: Statements of Intent to Prove Future Conduct

A major application of the state-of-mind exception is the admission of statements of intent to prove that the declarant later acted in accordance with that intent. This comes from Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892).

Key Term: Hillmon Doctrine
The principle that a declarant’s statement of present intent or plan is admissible under Rule 803(3) and may be used as circumstantial evidence that the declarant later acted in conformity with that intent.

Under Hillmon, a statement like “I plan to travel to Crooked Creek tomorrow” is admissible (1) to prove that the declarant had that intent on the day of the statement, and (2) as circumstantial evidence that the declarant actually traveled there the next day.

On the MBE, assume the majority view: a Hillmon-type statement can be used to show the declarant’s subsequent conduct, but not to prove what a third person mentioned in the statement did. So:

• “I am going to meet Dan at the warehouse”
  — admissible to show that the declarant likely went to the warehouse,
  — not admissible (on the MBE) to prove that Dan also went.

Worked Example 1.1

Plaintiff sues Defendant Bus Company for injuries sustained when a bus allegedly swerved violently. Plaintiff offers testimony from Witness, another passenger, who states that immediately after the swerve, she heard the bus driver exclaim, "I feel dizzy!" Is this statement admissible?

Answer:
Yes. “I feel dizzy!” describes the driver’s then-existing physical condition. It fits squarely within FRE 803(3) as a statement of present physical condition. It may support Plaintiff’s theory that the driver was impaired. The driver’s availability is irrelevant.

Worked Example 1.2

In a murder trial, the prosecution seeks to introduce testimony that the victim told her friend the day before the killing, "I am going to meet the Defendant tomorrow night at the old warehouse." Is this statement admissible to prove the victim met the Defendant?

Answer:
It is admissible in part. The phrase “I am going to meet the Defendant tomorrow night at the old warehouse” expresses the victim’s then‑existing intent and plan. Under the Hillmon doctrine, this is admissible under Rule 803(3) to show that the victim likely went to the warehouse the next night.
On the MBE, however, you should not use this statement to prove that the Defendant went to the warehouse; Hillmon is generally limited to the declarant’s own subsequent conduct, not that of a third party named in the statement.

Limitation: Statements of Memory or Belief (Shepard Rule)

Rule 803(3) explicitly excludes:

"a statement of memory or belief to prove the fact remembered or believed"

except in a narrow will-related situation.

Key Term: Statements of Memory or Belief
Statements that look backward (“I remember…”, “I believe that happened…”) and are offered to prove that the remembered or believed event actually occurred.

Key Term: Shepard Rule
The limitation, derived from Shepard v. United States, that Rule 803(3) does not allow statements of memory or belief to prove the past facts remembered or believed, except for statements about the validity or terms of a will.

The classic case is Shepard v. United States, 290 U.S. 96 (1933). The victim reportedly said, “Dr. Shepard has poisoned me,” offered to prove that Shepard had in fact poisoned her earlier. The Supreme Court excluded the statement: it was a statement of memory/belief about a past event, not a then-existing state of mind.

• Inadmissible under 803(3): “Yesterday, I went to the bank.” (Past event; pure memory.)
• Admissible under 803(3): “I intend to go to the bank tomorrow.” (Future intent; Hillmon.)
• Admissible under 803(3) for state-of-mind but not to prove past act: “I am terrified because Dan threatened me last week.” The fear (“I am terrified”) is admissible; the embedded allegation about last week’s threat is not admitted to prove that the threat actually occurred.

The one explicit exception in the rule:

Key Term: Will Exception
Rule 803(3) allows statements of memory or belief when they relate to the execution, revocation, identification, or terms of the declarant’s will.

Thus, “I revoked my old will last month,” offered to prove that revocation, can come in under 803(3) because it relates to the terms or validity of a will.

Worked Example 1.3

Victim was found dead. The prosecution offers testimony that a week earlier Victim said, “I am afraid of Dan; I think he is going to kill me because he threatened me last month.” The statement is offered to prove that Dan previously threatened Victim and therefore had a motive to kill her. Admissible?

Answer:
Only in a limited way. The portion “I am afraid of Dan” is a classic statement of then-existing emotional condition (fear) and is admissible to show Victim’s fear, which may be relevant (e.g., to rebut a self‑defense claim by Dan).
The rest—“I think he is going to kill me because he threatened me last month”—contains beliefs and memories of past threats. Under the Shepard rule, 803(3) does not allow that portion to prove that Dan in fact threatened her last month or would kill her in the future. On an exam, the best answer usually says: admissible to show victim’s present fear, but not to prove the past threat itself.

Comparing 803(3) With the Medical-Diagnosis Exception (803(4))

State-of-mind and physical-condition statements overlap with the medical-diagnosis exception, but serve different functions.

Key Term: Medical Diagnosis or Treatment Exception
The hearsay exception in Rule 803(4) admitting statements made for purposes of medical diagnosis or treatment that describe medical history, past or present symptoms, or the general cause of the condition, if reasonably related to diagnosis or treatment.

Key distinctions:

• 803(3) (state of mind / present physical condition)

  • Admits only present condition (“my back hurts right now”).
  • Applies regardless of whom the declarant is speaking to (friend, spouse, doctor).
  • Does not admit past symptoms or detailed narratives of how the injury happened.

• 803(4) (medical diagnosis/treatment)

  • Admits past and present symptoms and general cause if said for purposes of diagnosis or treatment.
  • Requires that the statement be reasonably related to diagnosis or treatment.
  • Typically (but not necessarily) made to medical personnel.

Example: “My ankle hurts so much and has hurt for three weeks.”

• Under 803(3), the present-tense part (it hurts now) is admissible as a statement of current physical condition. The “for three weeks” portion is past-symptom narration and not admissible under 803(3).
• If said to a doctor to obtain treatment, 803(4) would admit the entire statement, including the three-week duration.

Worked Example 1.4

Plaintiff sues after a car accident. Friend testifies that the day after the crash, Plaintiff said, “My neck hurts right now and it has been killing me since the accident yesterday.” The statement is offered to prove Plaintiff had neck pain the day after the accident and immediately after the accident. Plaintiff did not seek medical care. Admissible?

Answer:
Under 803(3), the portion “My neck hurts right now” is admissible as a statement of then-existing physical condition. The “has been killing me since the accident yesterday” part describes past pain; it is a statement of memory and is not admissible under 803(3) to prove that the neck hurt continuously since the accident. Because the statement was not made for medical diagnosis or treatment, 803(4) does not apply. On the MBE, expect an answer allowing only the present-pain portion.

Interplay With Nonhearsay State-of-Mind Uses

Not every “state of mind” problem requires 803(3). Sometimes the statement is not offered for the truth of what it asserts at all.

Example: A person says, “The FBI has implanted a chip in my brain.” Offered to prove he is delusional in a competency hearing, the statement is nonhearsay (circumstantial evidence of mental condition). Rule 803(3) is unnecessary.

When the examiner gives you choices between “nonhearsay—circumstantial evidence of mental condition” and “state-of-mind exception (803(3)),” focus on what the statement is being used to prove:

• To show that the person really has an FBI chip: hearsay; 803(3) does not apply.
• To show that the person believes bizarre things (insanity): nonhearsay; no exception needed.

Exam Warning: Multiple Hearsay and State of Mind

State-of-mind statements frequently appear embedded within other statements, producing multiple hearsay.

Consider Question 1 in this article:

Husband: “I remember my wife telling me last Tuesday that she was going to visit her sister in Chicago this weekend.”

• Wife’s statement: “I am going to visit my sister in Chicago this weekend.” That is a statement of then-existing intent by the wife, admissible under 803(3) and Hillmon to show that she went to Chicago.
• Husband’s framing: “I remember my wife telling me last Tuesday…” This is a statement of memory by Husband about a prior statement. Under 803(3) and Shepard, a statement of memory cannot be used to prove the remembered fact (that Wife intended to go to Chicago). No exception fits Husband’s “I remember…” overlay.

Because you must have an exception or exclusion for each level of hearsay, the overall statement is inadmissible to prove that Wife went to Chicago.

Worked Example 1.5

At issue is where Alice was on March 10. Bob testifies: “On March 9, Alice said to me, ‘Tomorrow I’m taking the 8 a.m. flight to Denver.’” The statement is offered to show that Alice flew to Denver on March 10. Admissible?

Answer:
Yes. Alice’s statement is a declaration of then-existing intent (“Tomorrow I’m taking the 8 a.m. flight to Denver.”). Under FRE 803(3) and the Hillmon doctrine, it is admissible to show that she had that intent and as circumstantial evidence that she followed through and flew to Denver on March 10. There is only one level of hearsay (Alice’s statement), and it is covered by 803(3).

Relationship to Other Hearsay Exceptions

The state-of-mind exception often overlaps with:

• Present sense impression (803(1): “He is driving really fast.”)
• Excited utterance (803(2): “He just shot me!”)
• Statements for medical diagnosis or treatment (803(4))

In many fact patterns, more than one exception could apply. For example, “I’m so scared—he’s pointing a gun at me!” could be both an excited utterance (803(2)) and a state-of-mind statement (803(3)).

On the MBE, if more than one valid exception is available, any correct exception will normally support admissibility. But where one exception clearly does not fit (e.g., a non-excited, calm statement made long after the event), picking that exception is incorrect even if another exception might have applied.

Additional Strategy for MBE Questions

When you see a “state of mind” fact pattern:

1. Ask whether the statement is offered for its truth.

   • If not (e.g., to show effect on listener or merely that the words were spoken), it is nonhearsay and you do not need 803(3).

2. If it is hearsay, ask whether it truly describes a then‑existing condition.

   • Present tense: “I feel…”, “I intend…”, “I am going to…” → likely 803(3).
   • Past tense: “I felt…”, “I went…”, “He did…” → not 803(3), unless within the will exception.

3. Check whether the statement is aimed at proving the declarant’s later act (Hillmon) or a third person’s act.

   • On the MBE, limit it to the declarant’s conduct.

4. Watch for multiple hearsay and apply an exception to each layer.

Exam Warning

Be careful to distinguish statements admissible under FRE 803(3) from those that are mere narratives of past events or statements of memory or belief:

• “My leg hurts right now” → statement of present physical condition; admissible under 803(3).
• “My leg hurt yesterday” → past physical condition; not admissible under 803(3) to prove the leg hurt yesterday (though it may be admissible under 803(4) if made for medical diagnosis/treatment).
• “I believe Dan ran the red light yesterday” → statement of belief about a past event; excluded by Shepard if offered to prove that Dan ran the red light.

Also remember that some state-of-mind problems are better analyzed as:

• Nonhearsay circumstantial evidence of mental condition, or
• Other exceptions (excited utterance, present sense impression, medical diagnosis).

Using 803(3) too broadly is exactly what the MBE wants you to do; resist that temptation.

Summary

FRE 803(3) provides a hearsay exception for statements describing the declarant's then-existing state of mind, emotion, sensation, or physical condition. It covers:

• Present intent, plan, motive, or mental feeling.
• Present emotional or sensory state.
• Present physical condition (pain, health, symptoms).

Statements of intent can be used under the Hillmon doctrine as circumstantial evidence that the declarant later acted in accordance with the stated intent. However, Rule 803(3) does not permit admission of statements of memory or belief to prove the facts remembered or believed, except where they relate to the declarant’s will. Present physical-condition statements under 803(3) must be distinguished from the broader medical-diagnosis exception in 803(4), which admits certain past symptoms and general cause when relevant to diagnosis or treatment.

The declarant’s availability is immaterial: 803(3) applies whether or not the declarant testifies. On the MBE, careful attention to verb tense, purpose for which the statement is offered, and whether the statement concerns the declarant or a third party will guide you to the correct analysis.

Key Point Checklist

This article has covered the following key knowledge points:

• Rule 803(3) excepts statements of a declarant’s then-existing state of mind, emotion, sensation, or physical condition from the hearsay rule.
• This includes intent, plan, motive, mental feeling, pain, and bodily health expressed in the present tense.
• Under the Hillmon doctrine, statements of intent are admissible to show that the declarant likely acted in conformity with that intent; on the MBE, assume this is limited to the declarant’s conduct.
• Rule 803(3) does not admit statements of memory or belief to prove the fact remembered or believed, except as to the validity or terms of a will (Shepard rule and will exception).
• Present physical-condition statements can be admitted under 803(3) even when made to non-medical persons; past symptoms and cause are generally covered, if at all, by 803(4).
• Some “state of mind” problems are nonhearsay (e.g., statements offered as circumstantial evidence of insanity or fear) and do not require 803(3).
• Many state-of-mind statements appear inside other statements, creating multiple hearsay; an exception or exclusion is needed for each layer.
• The declarant’s availability (present or absent) does not affect the application of 803(3).

Key Terms and Concepts

• Hearsay
• Declarant
• State of Mind Exception
• Then-Existing Condition
• Hillmon Doctrine
• Shepard Rule
• Statements of Memory or Belief
• Will Exception
• Present Physical Condition Exception
• Medical Diagnosis or Treatment Exception
• Nonhearsay State-of-Mind Use