By John DiMotto
Wisconsin Statutes section 908.03(3) sets forth the "State of Mind" exception to the general prohibition on the admissibility of hearsay. It encompasses:
"A statement 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."
This exception is a limited one. It only applies to the then existing state of mind, emotion, etc and does not apply if the state of mind is with respect to a memory or belief. Thus, if a witness is on the stand and says that when she was with the declarant, the declarant seemed distant and distracted and when she asked the declarant if anything is wrong the declarant said he was extremely upset because he has been diagnosed with cancer, this declaration would be admissible because it describes the current circumstances of the declarant's state of mind. However, if the declarant would answer by saying that the declarant is reflecting on the assassination of JFK from 47 years ago, this would not be admissible because it is a statement of memory.
While the State of Mind exception allows a witness to testify as to what a declarant's current state of mind is, it does not allow the admission of a declarant's statements of conduct of others to prove the truth of that conduct solely because that conduct is relevant to the declarant's state of mind. see State v. Kutz, 267 Wis.2d 531 (Ct. App. 2003). The State of Mind exception allows a declarant's statements about his/her state of mind to prove his/her state of mind. see State v. Johnson, 187 Wis.2d 431 (Ct. App. 1994). Under 908.03(3), a statement of a present intent to do an act in the future is admissible to prove the declarant acted in conformity. see State v. Everett, 231 Wis.2d 616 (Ct. App. 1999).
The State of Mind exception had its genesis in Mutual Life Ins. Co. of NY v. Hillmon, 145 US 285 (1882). In this case, the admissibility of letters which set forth the intentions of a declarant was at issue. The Kansas trial court excluded the letters as being hearsay. The United States Supreme Court reversed and remanded for a new trial ruling that the letters should be admitted. SCOTUS held that:
"The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be. After his death these can hardly be any other way of proving it, and while he is still alive his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander's recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation."
"The rule applicable to this case has been thus stated by this court: 'Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.'"
In my next blog, I will look at the exception dealing with Statements for Purposes of Medical Diagnosis or Treatment.