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Then-Existing State of Mind Hearsay Exception

Posted by David Adelstein on December 09, 2018

While this hearsay exception is predominantly applicable in criminal trials, it is still worth mentioning the then-existing state of mind hearsay exception.  This is a hearsay exception where hearsay is admissible, not to prove the truth of the matter asserted by a declarant (the person that made the out-of-court statement), but the declarant’s then-existing state of mind.  Naturally, the declarant’s state of mind has to be at-issue for this exception to come into play.  

For example, in the criminal matter of Rodriguez v. State, 2018 WL 6331764 (Fla. 3d DCA 2018), a pregnant woman requested her friend go to her neighbor’s apartment and stop them from playing loud music.  The friend did so and a fight ensued where a gun was brandished and discharged.  The friend was prosecuted for this incident. During the trial, the prosecution called the neighbors and they testified that the woman threatened to whoop them and she was going to send somebody to put a “cap in your a**.”   This testimony came in over the objection of the defense because the pregnant woman did not testify and she was not the defendant. 

The prosecution argued that the neighbor’s testimony about what the woman said to them was admissible to prove the then-existing state of mind of the defendant (friend of the woman).   But, there were two main problems.  

First, the prosecution used the statement to prove the then-existing state of mind of the defendant, not the woman (as she was not on trial). “It is well-settled, however, that this hearsay exception applies only to the declarant’s state of mind, not to someone else’s state of mind.”  Rodriguez, 2018 WL at *2 (internal quotations and citation omitted).

Second, the woman was not the victim.  Thus, the neighbor’s testimony about what the woman said was not admissible to establish the declarant-victim’s state of mind since, again, the woman was not the victim. While the defendant-friend’s state of mind was an issue since he went to the neighbor’s house on behalf of the woman, the woman’s state of mind was not at-issue. 

Thus, the out-of-court statement of the woman (declarant) was hearsay and was improperly admitted since (i) the then-existing state of mind exception cannot be used to establish someone else’s state of mind, in this case the declarant’s friend, and (ii) it could not be used to establish the declarant-victim’s state of mind since the woman-declarant was not the victim.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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