Statements Offered to Show
Declarant’s State of Mind

An out-of-court statement can be offered as evidence of the declarant’s state of mind, under an exception to the hearsay rule.{footnote}FRE 803(3).{/footnote}  Such statements are not admissible to prove the truth of the matter asserted.{footnote}Stelwagon Mfg. Co. v. Tarmac Roofing Systems, Inc., 63 F.3d 1267 (3d Cir. 1995), cert. denied, 116 S.Ct. 1264, 134 L.Ed.2d 212; Anesthesia Advantage, Inc. v. Metz Group, 759 F. Supp. 638 (D. Colo. 1991).{/footnote}

Statements which assert a state of mind, such as emotion, intent, motive, or knowledge are hearsay if offered to prove the state of mind asserted.  See also INTENT–Hearsay.  These statements come in, however, under the "state of mind" exception if made at the time in which the declarant’s state of mind is relevant.{footnote} [3899]  FRE 803(3); Cal. § 1240; Shepard v. United States, 290 U.S. 96, 104-105 (1933); Ebasco Svcs, Inc. v. Pennsylvania Power & Light Co., 460 F. Supp 163 (__________ 1978); United States v. Annunziato, 293 F.2d 373 (3d Cir. 1961) (intention); Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241 (6th Cir. 1995)(disparaging, racist comments admissible).

Hackett v. Ashley, 71 Ill. App. 3d 179, 389 N.E.2d 246 (3d Dist. 1979); Smith v. Smith, 70 A.2d 630 (Pa. 1950); Doern v. Crawford, 153 N.W. 2d 58 (Wis. 1967) (statements of intended place of domicile); Annot., 79 ALR 1447 (statements of affection admissible to show intent to make a gift). {/footnote}  Where the declarant’s state of mind is irrelevant, such statements are excluded.{footnote}Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272 (5th Cir. 1991)(in employee’s negligence suit, employee’s statements to others about difficulty walking after accident inadmissible under this exception).{/footnote}  Such statements are admissible whether or not the declarant is available to testify.{footnote}FRE 803(3).{/footnote}  Statements regarding the declarant’s state of mind are generally held not admissible to show the conduct of another.{footnote}Shepard v. Unites States, 290 U.S. 96 (1933); United States v. Mangan, 575 F.2d 32 (2d Cir. 1978); Comment to FRE _____.  Contra People v. Alcalde, 24 Cal. 2d 177 (1944).{/footnote} 

Exculpatory Statements.

This exception has been held to extent to self-serving, exulpatory statements by the defendant, where there was a clear motive to fabricate.{footnote} [3903]United States v. DiMaria, 727 F.2d 720 (5th Cir. 1972)(defense permitted to introduce defendant’s statement to federal agents, "I only came to get some cigarettes real cheap."
            See also Healey v. Chelsea Resources, Ltd., 947 F.2d 611 (2d Cir. 1991); United States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied sub nom. Cruz v. United States, 498 U.S. 906 (1990); United States v. Detrich, 865 F.2d 17 (2d Cir. 1988); United States v. Harris, 733 F.2d 994 (2d Cir. 1984); United States v. Lawal, 736 F. 2d 5 (2d Cir. 1984); United States v. Arthur, 949 F.2d 211 (6th Cir. 1991); United States v. Yu, 697 F. Supp. 635 (E.D.N.Y. 1988).
            Warhurst v. White, 838 S.W.2d 350 (Ark. 1992).{/footnote}

Statements of Intent to Show Later Conduct.  Statements of intent are admissible under the "state of mind" exception as circumstantial evidence to show that declarants later acted on their intentions.{footnote} [3904]  FRE 803(3)(Advisory Committee Note); Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892) (intent to go somewhere); Shelden v. Barre Belt Granite Employer Union Pension Fund, 25 F.3d 74 (2d Cir. 1994 (employee’s intent to apply for disability pension benefits); Phoenix Mut. Life Ins. Co. v. Adams, 30 F.3d 554 (4th Cir. 1994)(statement of insured of intent to change beneficiary); Firemen’s Fund Ins. Co. v. Thien, 63 F.3d 754 (8th Cir. 1995)(employee’s statements to wife as to  his intentions for trip on company plane held admissible).

Cal. § 1250(2).

Annot., 93 ALR 426 (intent to commit suicide).

Cf. Shephard v. United States, 290 U.S. 96 (1933) (victim’s accusation of murder not admissible to show no intent to commit suicide);

Check First National Bank v. Bernius, 127 Ill. App. 3d 193, 468 N.E.2d 188 (4th Dist. 1984)(defendant’s statements admissible to show he would not have signed promissory note).
{/footnote}  This rule is probably limited to proving future conduct of declarants, not third parties discussed in the statements.{footnote}See United States v. Mangan, 575 F.2d 32, 43 n. 12 (2d Cir. 1978)(discussing legislative history); People v. Reddock, 13 Ill. App. 3d 296, 300 N.E.2d 31 (2d Dist. 1973)(statement that declaraant intended to meet the defendant not admissible to show defendant intended to meet declarant).{/footnote}

Past State of Mind.  Statements as to the declarant’s state of mind at some time in the past are generally held inadmissible.{footnote}See, e.g., Grove Fresh Distributors, Inc. v. New England Apple Products Co., Inc., 969 F.2d 552 (7th Cir. 1992)(consumers’ statements that they switched brands of orange juice because of price inadmissible to show reason for customers’ switching).{/footnote}  An exception provides for the admission of statements made by a testator either before, during, or after the execution of a will to show state of mind (e.g., testamentary intent, undue influence).{footnote} [3907]  Check Annot. 62 ALR 2d 855.  {/footnote}  Another exception provides for the admission of statements by the grantor before, during or after delivery of a deed to show the grantor’s intent.  California allows any statement as to an unavailable declarant’s past or contemporaneous "state of mind, emotional or physical sensation" into evidence.{footnote} [3908]  Cal. § 1251.{/footnote}

Statements of Memory or Belief.  Statements to the effect of the declarant remembering or believing something to be true are not admissible to prove the thing remembered or believed,{footnote}CHECK Firemen’s Fund Ins. Co. v. Thien, 63 F.3d 754 (8th Cir. 1995)(employee’s statement that he believed he was being laid off inadmissible to show that he had been laid off).{/footnote} except that such statements are admissible if the declarant is discussing the execution, revocation, identification or terms of his or her will.{footnote}FRE 803(3); Check Cal. § 1260.{/footnote}

Assertions Offered as Indirect Evidence of State of Mind.  Assertions by declarants as to something other than their state of mind are not hearsay if offered to show the declarants’ state of mind (e.g., knowledge, intent, motive).  Such statements are not hearsay because they are not offered for the truth of the matter asserted.{footnote}FRE 801(c);  Israel Travel Advisory Service, Inc. v. Israel Identity Tours, Inc., 61 F.3d 1250 (7th Cir. 1995)(customer’s questions about competitor’s services admissible to show confusion); Atlantic-Pacific Const. Co., Inc. v. N.L.R.B., 52 F.3d 260 (9th Cir. 1995).

Wilkinson v. Service, 249 Ill. 146, 94 N.E. 56 (1911)(testator’s statement about daughter admissible to show state of mind).{/footnote}

Statements Offered to Show Non-Declarant’s
State of Mind

Statements are deemed non-hearsay where they are offered not for their truth, but to show the state of mind of the party who heard or read the statement.{footnote}Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419 (10th Cir. 1993).{/footnote}  Such statements will be excluded on relevance grounds, however, where the listener’s state of mind is irrelevant.{footnote}T. Harris Young & Associates, Inc. v. Marquette Electronics, Inc., 931 F.2d 816 (11th Cir. 1991), cert. denied, 502 U.S. 1013, 112 S.Ct. 658, 116 L.Ed.2d 749.{/footnote}

Notice or Knowledge.  Prior complaints or warnings of a dangerous condition or defect are non-hearsay where offered to show that the listener or reader had notice.{footnote}George v. Celotex Corp., 914 F.2d 26 (2d Cir. 1990)(notice to defendant); Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221 (5th Cir. 1984)(notice to plaintiff; assumption of risk); Safeway Stores, Inc. v. Combs, 273 F.2d 295 (5th Cir. 1960)(notice to plaintiff).

 CHECK  United States v. Rubin, 591 F.2d 278 (5th Cir. 1979).  {/footnote}  Other types of statements to a party have also been held non-hearsay where offered to show a party’s knowledge of the matter asserted.{footnote}Barnes v. Prudential Ins. Co., 76 F.3d 889 (8th Cir. 1996)(statement of insured to agent that he wanted to change beneficiary held to be non-hearsay where offered to show agent’s knowledge of insured’s wishes).{/footnote}

Knowledge. 

Good Faith.  Bad advice is admissible to show good faith on part of person who relied on it.{footnote}United States v. Wellendorf, 574 F.2d 1289 (5th Cir. 1978).{/footnote} 

Motive.  A statement by another which is alleged to have provided a party with a motive for committing an act or omission is admissible to prove the party’s motive,{footnote}Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), cert. denied, 502 U.S. 1005, 112 S.Ct. 640, 116 L.Ed.2d 658 (1991)(statement to deputy that she would not be promoted admissible to show her motive in not taking sergeant examination).{/footnote} so long as the appropriate limiting instruction is given.{footnote}United States v. Cline, 570 F.2d. 731 (8th Cir. 1978); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419 (10th Cir. 1993)(defendant’s personnel manager permitted to testify as to negative hearsay statements about plaintiff-job applicants at time of applications, to show  motive for rejecting applications).{/footnote}