708.4Mental/Physical Condition [Rule 803(3)]
- Statements that describe a declarant’s mental, emotional, or physical state at the time the statement was made are not barred by the hearsay rules.
- Common examples of this exception include statements that reflect the victim’s fear of the defendant, or the defendant’s intent to engage in a future act.
- A statement about a current memory or belief may not be used to prove the fact remembered, but it can be used to show the underlying basis for the memory or belief.
The Basic Rule
Rule 803(3) – Then Existing Mental, Emotional, or Physical Condition
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.
G.S. 8C-803(3). This exception allows hearsay statements regarding the declarant’s state of mind or physical condition, as long as the statement is relevant and the probative value is not outweighed by the risk of prejudice. See State v. Aldridge, 139 N.C. App. 706 (2000) (“The state of mind exception allows for the introduction of hearsay evidence which tends to indicate the victim's mental condition by showing the victim's fears, feelings, impressions or experiences, so long as the possible prejudicial effect of such evidence does not outweigh its probative value under Rule 403.”); accord, State v. Hernandez, 202 N.C. App. 359 (2010); State v. Weeks, 322 N.C. 152 (1988).
Types of Statements Allowed
Emotion, Sensation, or Condition
One of the most common uses of this exception is to introduce oral or written statements demonstrating a victim’s fear, concern, pain, or frustration related to the defendant at the time the statement was made. See, e.g., State v. Cook, 246 N.C. App. 266 (2016) (witness’s statement that victim “was scared of” defendant was admissible and relevant to show status of victim’s relationship with defendant the night before she was killed); State v. Mills, 225 N.C. App. 773 (2013) (allowing declarant's statements to witness describing relationship with defendant and the fact that he was threatening and harassing her); State v. Hernandez, 202 N.C. App. 359 (2010) (no error in allowing statements "to show that Reese was afraid of defendant and what he might do if she tried to leave him," finding "the statements clearly indicate difficulties in the relationship prior to the murder" and "show the victim's state of mind"); State v. Carroll, 356 N.C. 526 (2002) ("statements demonstrated that Whitted was upset and wanted defendant to leave because Whitted was tired of defendant taking her money to buy drugs"); State v. Anthony, 354 N.C. 372 (2001) ("Semantha's statements made on the day of her murder reflected her state of mind and were relevant because they related directly to circumstances giving rise to a feared confrontation with defendant on the day she was murdered"); State v. King, 353 N.C. 457 (2001) ("the victim's challenged statements about her frustration with defendant and her intent to end their marriage were statements indicating the victim's mental condition at the time [the statements] were made" which "relates directly to circumstances giving rise to a potential confrontation with the defendant" making them "relevant and admissible as statements of the declarant's then-existing state of mind") (internal quotations omitted); State v. Thibodeaux, 352 N.C. 570 (2000) ("the victim's testimony from the 50-B hearing clearly relates to her relationship with her husband as well as to her fear of him" so it was admissible to show state of mind).
Intent, Plan, or Motive
This exception also allows statements regarding a declarant’s "intent" (e.g., declarant’s intention to go to a certain place), "plan" (e.g., declarant’s statement expressing a desire to rob a store), or "motive" (e.g., declarant's statement about disinheriting the defendant, which prompted the murder). See, e.g., State v. Braxton, 352 N.C. 158 (2000) ("Moore's statement to McCombs that he was going to approach defendant about straightening out the victim's debt was admissible as evidence of Moore's then-existing intent to engage in a future act"); State v. Rivera, 350 N.C. 285 (1999) ("Bryant's alleged statements that 'I got these two dudes here' (emphasis added) who were to 'lay on [defendant] Heavy everything' tend to show Bryant's intent to direct or assist the two men in executing the plan."); State v.McLemore, 343 N.C. 240 (1996) ("evidence that the victim intended to decrease the financial benefits flowing to her son, as well as evidence that she was angry and intended to give her son an ultimatum, was relevant to show the status of their relationship just prior to the victim's death"); State v. Ransome, 342 N.C. 847 (1996) ("In interpreting Rule 803(3), we have held that the rule allows the admission of a hearsay statement of a then-existing intent to engage in a future act."); State v. Coffey, 326 N.C. 268 (1990) ("Rule 803(3) of the North Carolina Rules of Evidence permits admission of a witness's testimony as to statements of intent by another person to prove subsequent conduct by that other person."); State v. Sneed, 327 N.C. 266 (1990) ("Ward's testimony as to Reid's declaration that he wanted to go rob Tripp's Service Station was admissible as evidence of Reid's then-existing intent to engage in a future act"); State v. Greene, 324 N.C. 1 (1989) ("the victim's state of mind regarding his intention to disinherit defendant was relevant to the issue of defendant's motive. The testimony in question thus was admissible under the state of mind exception to the hearsay rule.").
When a statement is offered under this exception to show a declarant’s intent to engage in a future act, there is no temporal requirement that the statement must be made close in time to the intended act. See State v. Taylor, 332 N.C. 372 (1992) (“Rule 803(3) does not contain a requirement that the declarant’s statement must be closely related in time to the future act intended”).
No “Facts Remembered” but Some “Context” is Allowed
An important limitation on this hearsay exception is that it does not allow “a statement of memory or belief to prove the fact remembered” (except in certain situations related to wills, which are not relevant for criminal cases). G.S. 8C-803(3). In other words, a declarant’s statement about "remembering" or "believing" that some event happened cannot be used as a backdoor to prove that the event did, in fact, occur. The Official Commentary explains that this limitation “is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.” G.S. 8C-803(3), Official Commentary. See, e.g., State v. Lathan, 138 N.C. App. 234 (2000) (murder victim’s statement to another witness about how she got an injury on her face was not admissible under the state of mind exception, since it was only being offered to prove the underlying fact that defendant had caused the injury); In re Hayden, 96 N.C. App. 77 (1989) (child’s statement to mother about how she got burned the previous day, offered to prove that burns did occur as described, was not admissible under mental state exception).
Notwithstanding the rule against offering memories or beliefs to prove the fact remembered, cases interpreting Rule 803(3) have allowed the introduction of factual references connected with a statement of mental or physical condition when “the facts related by the victim serve to demonstrate the basis for the victim's state of mind, emotions, sensations, or physical condition.” State v. Wilds, 133 N.C. App. 195 (1999) (emphasis added). See, e.g., State v. Smith, 357 N.C. 604 (2003) (allowing declarant victim’s statement about seeing a blue van lurking near the house, because it explained why declarant said it was “spooky” to be home alone); State v. Kimble, 140 N.C. App. 153 (2000) (declarant’s statement about discovering that her husband had secretly taken out a large life insurance policy on her was admissible because it explained why she was “very upset, her voice was shaky during this conversation, and she was trying not to cry”); State v. Murillo, 349 N.C. 573 (1998) (allowing declarant victim’s statement about prior attacks by the defendant to show the basis of her fear of him); State v. Gary, 348 N.C. 510 (1998) ("The testimony in this case was admissible to show the victim's fear at the time of the conversation with her mother and to demonstrate the basis for her fear, namely, the threat to her life."); State v. Alston, 341 N.C. 198 (1995) (victim's statements that she "was receiving threatening phone calls from the defendant, that the defendant was telling her that she had a beautiful face and that he (defendant) was going to 'mess [it] up' or 'smash it in'" were admissible because they "related directly to the victim's fear of defendant" and thus "were properly admitted pursuant to the state of mind exception to the hearsay rule").
“Thus, to synthesize, our courts have created a sort of trichotomy in applying Rule 803(3). Statements that recite only emotions are admissible under the exception; statements that recite emotions and the facts underlying those emotions are likewise admissible; but statements that merely recite facts do not fall within the exception.” State v. Lesane, 137 N.C. App. 234 (2000) (finding error, but no prejudice, in allowing wife’s testimony about her husband’s statements describing a prior stabbing by the defendant – wife’s unsupported opinion that her husband seemed “afraid” was insufficient to bring it within the mental condition exception). But see State v. Cummings, 326 N.C. 298 (1990) (allowing introduction of victim’s statements about past abuse and threats by the defendant, offered through witness who conducted an intake interview for counseling, based on the fact that victim “appeared terrified” at the time).