Then-Existing Mental, Emotional, or Physical Condition (FRE ...

Introduction

Under the Federal Rules of Evidence, hearsay is generally not allowed. One key exception is FRE 803(3), which admits a declarant’s statement about their then-existing state of mind (motive, intent, or plan) or emotional, sensory, or physical condition (mental feeling, pain, or bodily health). The rule excludes statements of memory or belief to prove the fact remembered or believed, unless the statement concerns the validity or terms of the declarant’s will. This guide explains what qualifies, what does not, and how lawyers use this exception in US courts.

What You'll Learn

• What FRE 803(3) allows and excludes
• How “then-existing” state of mind and physical condition are shown through statements
• Why memory or belief statements are barred and how the will carve-out works
• How Mutual Life Insurance Co. of New York v. Hillmon and Shepard v. United States shape the rule
• Practical steps to admit or challenge 803(3) evidence
• Common pitfalls, including hearsay within hearsay and misuse to prove past acts

Core Concepts

What FRE 803(3) Covers

FRE 803(3) allows a statement of the declarant’s:

• Then-existing state of mind: motive, intent, or plan
• Then-existing emotional, sensory, or physical condition: mental feeling, pain, or bodily health

No need to show the declarant is unavailable. The statement must describe how the person felt or what they intended at the time they spoke or wrote it.

What the Rule Excludes

FRE 803(3) does not allow a statement of memory or belief to prove the fact remembered or believed. Example: “Last week John poisoned me” is generally out under 803(3) because it recounts a past event and invites the jury to accept that past act as true. There’s one narrow exception: if the statement relates to the validity or terms of the declarant’s will.

Then-Existing State of Mind

Statements showing the declarant’s current intent, plan, or motive are admissible to prove that state of mind and, under many decisions, to support an inference that the declarant later acted in line with that plan. Classic examples:

• “I’m going to meet Alex at 7 p.m.”
• “I plan to quit next week.”
• “I intend to transfer the car to my sister.”

Courts allow these to show the speaker’s plan at that time. Many courts also allow the jury to infer that the speaker followed through. Be cautious when the statement is used to show what another person did. Some courts limit that use.

Emotional, Sensory, or Physical Condition

Statements about how the declarant feels physically or emotionally are admissible if they describe a present condition, such as:

• “My back hurts right now.”
• “I feel dizzy.”
• “I’m terrified of flying.”

These statements show the condition at the time of speaking. They are not a platform for past facts (“I fell yesterday because the floor was wet”) unless another rule applies (often FRE 803(4) for medical diagnosis or treatment).

Memory or Belief and the Will Carve-Out

Memory or belief is generally off-limits when offered to prove the fact believed. For example:

• “I remember that Dan stole my phone” is inadmissible under 803(3) to prove Dan stole it.

Exception: If the statement concerns the validity or terms of the declarant’s will, courts may admit it. In will contests, statements about what the testator believed their will said or whether they believed it was valid can come in.

Timing and Contemporaneity

“Then-existing” means the condition or intent must be current when the statement was made. Statements that describe a future plan are allowed to show intent; statements about a past state of mind are usually not. Compare:

• “I’m leaving for Denver tomorrow” (allowed to show intent).
• “Yesterday I meant to go to Denver” (generally not allowed under 803(3) to prove that prior intent).

Declarant’s Conduct vs. Third Parties

Statements of the declarant’s intent can support an inference that the declarant later acted consistently. Whether they can also be used to show what a named third party did is more limited. Mutual Life v. Hillmon allowed a letter expressing intent to travel with another person to be used; some modern courts read Hillmon narrowly when a statement is offered to prove a third party’s actions.

Form, Audience, and Authentication

The rule applies to oral and written statements, including texts, emails, and journal entries. As with any exhibit or testimony, you must show what it is (authentication). If the statement has multiple layers of hearsay, each layer needs its own exception or exclusion.

Relation to Other Hearsay Exceptions

Do not confuse 803(3) with:

• 803(1) Present Sense Impression (describing an event as it happens)
• 803(2) Excited Utterance (statement relating to a startling event made under stress)
• 803(4) Medical Diagnosis or Treatment (statements for diagnosis/treatment, including cause if relevant to care)

Key Examples or Case Studies

Legal examples

• State of mind: A victim writes, “I’m meeting John at 8 because I think he’s about to confess.” The portion “I’m meeting John at 8” is admissible to show a plan. The “because I think he’s about to confess” cannot be used to prove that John was about to confess. A court may admit the full sentence with a limiting instruction or may redact the belief portion.
• Physical condition: Right after a car crash, a plaintiff tells a friend, “I have severe pain in my back.” That statement is admissible to show the plaintiff’s then-existing physical condition.

Cases involving 803(3)

• Mutual Life Insurance Co. of New York v. Hillmon (145 U.S. 285): The Supreme Court admitted a letter from the deceased stating an intent to travel with Hillmon. The letter showed the writer’s then-existing intent. Courts often cite Hillmon for the idea that intent statements can be used to infer later conduct.
• Shepard v. United States (290 U.S. 96): The victim’s statement, “Dr. Shepard has poisoned me,” was excluded. It was a statement of memory or belief aimed at proving a past fact, not a current state of mind. Shepard draws a clear line between present feelings or plans (admissible) and past-acts accusations (not admissible under 803(3)).

Additional context

• Fear or motive: “I’m afraid of Carlos” may come in to show the declarant’s fear when fear is relevant (for example, rebutting a claim of suicide). But “I’m afraid because Carlos threatened me yesterday” is not admissible under 803(3) to prove the threat occurred.

Practical Applications

How to admit 803(3) statements

• Tie the statement to a current condition or intent. Be specific about timing.
• Keep the purpose narrow. Offer the statement to show state of mind or intent, not to prove past acts.
• Use precise wording. Highlight the portions that speak to present feelings or plans; consider redacting parts that recount past events.
• Address multiple hearsay layers. If the statement quotes someone else, that quoted part needs its own exception or exclusion.
• Link to relevance. Explain why the state of mind or physical condition matters to a claim or defense.
• Be ready with a limiting instruction. Ask the court to instruct the jury on the proper, limited use of the statement.

How to challenge 803(3) statements

• Argue it’s memory or belief. If the statement describes a past event or is being offered to prove that past event, 803(3) does not permit it.
• Point out timing problems. If the condition or intent was not current when stated, it’s not “then-existing.”
• Object to third-party inferences. Urge the court not to use the declarant’s intent to prove what a named third party did, or at least to give a limiting instruction.
• Raise Rule 403. Even if admissible under 803(3), the court can exclude the statement if unfair prejudice substantially outweighs probative value.
• Confrontation Clause in criminal cases. If the statement is testimonial and is offered against a criminal defendant, the Sixth Amendment may bar admission unless the declarant testifies or there was a prior opportunity for cross-examination.

Common use cases

• Criminal cases: Proving a victim’s plan to meet the defendant, a defendant’s plan to travel, or a witness’s fear (when relevant). Courts scrutinize attempts to smuggle in accusations of past misconduct under the state-of-mind label.
• Civil cases: Personal injury plaintiffs stating pain at the time, parties declaring plans in contract disputes, and testators’ statements about the terms or validity of a will.

Practice pointers

• Compare rules. If you need to show cause of injury to a doctor, consider 803(4). If the statement describes an event at the moment it happens, consider 803(1). If the statement was made under stress from a startling event, consider 803(2).
• Documents and messages. Journals, letters, texts, and emails can qualify. Authenticate the item and focus on the language that shows a current state or plan.
• Redaction. When a sentence mixes present intent with a past accusation, propose a redacted version that keeps only the admissible portion.
• Jury instructions. Ask for a tailored instruction so jurors use the statement only for the allowed purpose.

Summary Checklist

• Confirm the statement describes a current state of mind or condition (motive, intent, plan, feeling, pain, or health).
• Exclude or limit any part that recounts past facts offered for their truth.
• Use the will carve-out only when the statement concerns the validity or terms of the declarant’s will.
• Tie the statement to a relevant issue (e.g., plan to meet, present pain level, fear when fear matters).
• Authenticate the speaker and the medium (person, text, email, journal).
• Watch for hearsay within hearsay and address each layer.
• Consider whether the statement is testimonial if offered in a criminal case.
• Be ready with Rule 403 arguments for or against admission.
• Use limiting instructions to confine the jury’s use of the statement.

Quick Reference