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Question 1

What are the two categories involved in the hearsay exception group “statement of condition“?

Answer 1

Then existing state and statements for medical diagnosis/treatment

Question 2

What is the focus for the category of hearsay exception called “statements of condition?“

Answer 2

The focus is inward, on the thoughts, sensations, and the feelings of the declarant

Question 3

What is involved in the hearsay exception called “then existing state?“

Answer 3

This is a hearsay exception for a statement of the declarant’s then-existing state of mind (such as motive/intent/plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will

Question 4

Then-existing state as an exception to hearsay includes what types of plans?

Answer 4

Then-existing present and then-existing future plans

Question 5

What is the rationale for then-existing state as a hearsay exception?

Answer 5

When someone describes something he is thinking or feeling as he is thinking or feeling it, he doesn’t have the time/motivation to fabricate it

Question 6

What is the key component to then-existing state as a hearsay exception?

Answer 6

Timing. It must describe the thoughts or feelings at the time the declarant made the statement

Question 7

If a witness testified on April 1 that on February 1 she said her head hurt, would that be OK under “then-existing state” as a hearsay exception?

Answer 7

Yes

Question 8

If a witness testified on April 1 that on February 1 she said her head hurt on January 1, would that be admissible under “then existing state“ as a hearsay exception?

Answer 8

No, because when she spoke she was talking about something that happened a month earlier. That was in the past, not the present

Question 9

If someone is suing a chemical company for dumping waste in the water, and at trial a husband testifies that the first time the plaintiff took a shower after moving in, she said, “I feel nauseated.“ Would that be OK as a then-existing state exception to hearsay?

Answer 9

Yes

Question 10

If a husband testified that his wife said, “I have felt nauseous after taking showers for a week“ would that count as a then-existing state exception to hearsay?

Answer 10

No, because the reference is to the past, and not to her then-existing state

Question 11

If a husband testified that his wife said, “I think I’ll go swimming tomorrow“ is that OK as an exception to hearsay under “then existing state?“

Answer 11

Yes, because it describes her mental plans for the future

Question 12

What are the two time periods that “then existing state” as an exception to hearsay can apply to?

Answer 12

The present or the future, never the past

Question 13

On April 1 if a witness testifies that on February 1 she said, “on March 1 I am going to the movies.“ Is that admissible as a then existing state exception to hearsay?

Answer 13

Yes, because at the time she said it, she was expressing her plans as of that day about what she was going to do in the future.

Question 14

How can then existing state count as a hearsay exception to include future plans?

Answer 14

“Then existing state“ allows for plans about what someone will do in the future to be used as likely evidence about what someone likely did, because people are more likely to do something if they had a plan to do it than if they didn’t

Question 15

Can “then existing state” apply to statements about what someone besides the declarant is sensing or to their plans?

Answer 15

No

Question 16

Is it possible to testify that you said, “B and I are going to the movies next week” to have B’s plans be admissible under then-existing state?

Answer 16

No, because the declarant cannot make statements about someone else’s future plans, only about their own

Question 17

Is it possible to introduce a letter into evidence from your girlfriend as an alibi for murder under “then-existing state” if she said, “I can’t wait to spend New Year’s with you in New York.“?

Answer 17

No, because the defendant didn’t make the statement or adopt it and just because the girlfriend intends to spend New Year’s in New York with her boyfriend, that doesn’t show that the defendant’s intent was to do that

Question 18

What is the exception for wills in then-existing state as an exception to hearsay?

Answer 18

If a past statement relates to a will, that can be introduce-able because there is a special need since the author of the will is dead by the time litigation happens

Question 19

Is it possible to excise portions of a statement that don’t comport with “then-existing state” in order to use it as a hearsay exception?

Answer 19

If a statement involves then-existing state of mind plus something from the past, it is possible to take out the past part. But you must be careful when excising portions because it may cause relevance issues

Question 20

If a witness testified on April 1 that she said on February 1, “I hate that guy because he stole my car.“ What would have to be excised from this statement in order for it to be included as then-existing state for a hearsay exception?

Answer 20

You would have to remove the part about him stealing the car, but the hating part is then m-existing so that is OK

Question 21

What is involved in the exception to hearsay for statements for medical diagnosis and treatment?

Answer 21

This is a hearsay exception for statements that are made for the purpose of medical diagnosis or treatment

Question 22

What is the rationale for the hearsay exception of statements for medical diagnosis and treatment?

Answer 22

People don’t usually fabricate things that are relevant to getting medical help because they want to get better. Also it can be dangerous to tell a doctor the wrong information, so people have an incentive to be honest when their health is at stake. This makes these statements more reliable

Question 23

What are the elements included in the hearsay exception statements for medical diagnosis and treatment?

Answer 23

– Statements are allowed in if they are made for or reasonably pertinent to medical diagnosis or treatment
– and the statement describes medical history like symptoms or sensations

Question 24

Is it necessary for the hearsay exception “statements for medical diagnosis and treatment“ that the statement be made to a medical professional?

Answer 24

No, all that is required is that the statement be made to get diagnosis or treatment. I.e.: a wife could tell her husband “to get help! I’m having a heart attack!“ And even though the husband isn’t a doctor, he is being told this so that he will call 911. So that statement would be included as a hearsay exception

Question 25

Under the hearsay exception statements for medical diagnosis and treatment, can statements that are made to an expert for the purpose of testifying in litigation in order for the expert to form a diagnosis be protected as well, even if they are not made so that the expert can treat the declarant?

Answer 25

Yes

Question 26

What is included in the element of the hearsay exception for statements for medical diagnosis and treatment that describes the medical history?

Answer 26

This could include past or present symptoms or sensations, their inception, or their general cause

Question 27

On April 1 if a witness testified that on February 1 she told her doctor “my head hurt last month.“ Would that be OK as a statement for medical diagnosis and treatment which would count as a hearsay exception?

Answer 27

Yes because she made it to a doctor and it’s helpful to know about past issues in order to figure out a current one

Question 28

Is it possible under the hearsay exception for statements for medical diagnosis and treatment for the person to describe the cause of injury?

Answer 28

Yes, if it’s reasonably pertinent to a diagnosis or treatment

Question 29

If a person says “I got hurt in a car crash“ is that an admissible statement under statements for medical diagnosis and treatment?

Answer 29

Yes because it is pertinent to the person’s diagnosis or treatment. If the doctor knows that his head hurts because of a crash, that would lead to different treatment than something like a tumour

Question 30

If a person says “I was hurt in a car crash when the defendant sideswiped me“ to a doctor, could that be counted as a hearsay exception under statements for medical diagnosis and treatment?

Answer 30

Probably because the type of injury from being sideswiped is different than from being rear ended

Question 31

If a person said “I got hurt in a crash when a car ran a red light“ would that be admissible under the hearsay exception for statements for medical diagnosis and treatment?

Answer 31

This is arguable. You could argue that if the plaintiff wasn’t expecting the crash, that would affect the type of muscle injury, but it is likely that the part about the other party running the red light would not be allowed in because it is not reasonably pertinent to the diagnosis or treatment

Question 32

Statements for medical diagnosis and treatment often overlap with what other hearsay exception?

Answer 32

Then-existing state

Question 33

Is it permissible for a person to testify on April 1 that on February 1 she said to the doctor “my head hurts“?

Answer 33

Yes, this could count as then-existing state and statement for medical diagnosis

Question 34

What do you have to be careful of when you’re considering the hearsay exception statements for medical diagnosis and treatment?

Answer 34

The doctor’s words do not count. This exception only covers statements that are made to get treatment or diagnosis, not statements back from the doctor. You cannot testify that the doctor told you it was a concussion. This exception only applies to statements made TO the doctor, not BY the doctor

Question 35

If you want to introduce a doctor’s report about your broken leg, can you use the hearsay exception statements for medical diagnosis and treatment?

Answer 35

No, because that exception doesn’t apply to statements made by a doctor, it only applies to statements made to a doctor. If you want this report to come in it is better to use the business records exception

Question 36

If someone is shrieking in pain, is that considered to be a statement for hearsay?

Answer 36

No, that is not hearsay, because it is not a statement. You don’t need any exception for a witness to testify about someone shrieking in pain

Question 37

Is it possible for a third-party to rely on a statement for diagnosis or treatment under the statements for medical diagnosis and treatment exception to hearsay?

Answer 37

Yes, for example if you tell an EMT that is treating the patient what the patient said about the accident to keep the EMT in the loop, that is included

Question 38

How does California and the FRE differ on the hearsay exception of statements for medical diagnosis and treatment?

Answer 38

There is no exception in California for medical diagnosis/treatment. Your best bet is to use then-existing state