O the statement must be made immediately after

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o The statement must be made immediately after perceiving the event or condition. o Personal knowledge is required. Excited Utterances o 803(2). Excited Utterance The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (2) A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. o Personal knowledge is required. o Excited utterances by incompetent persons can still come in. o Unidentified declarants are fine. o The person must be under the stress of the excitement when the statement is made. Re-excitement can happen. Continue excitement can happen. Time does not matter if the person is still under the stress of the excitement. State of Mind o 803(3). Then-Existing Mental, Emotional, or Physical Condition Page 42 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (3) A statement of the declarant’s then- existing state of mind (such as motive, intent, or 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. o The statement must be contemporaneous with the event/feeling. o If the statement discusses the cause of the state of mind, it is not admissible. The exception is wills. o Hillmon Doctrine Statements of intent are fine as long as they are forward looking. o “Memory to Belief to Prove the Fact Remembered or Believed” “I believe that Bob is the guy who robbed the bank.” Not admissible under 803(3). Bodily Conditions o 803(4). Statement Made for Medical Diagnosis or Treatment The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (4) A statement that: o (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and o (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. o The declarant does not have to be the patient; it could be a parent as long as the witness has personal knowledge. Past Recorded Recollections & Present Memory Refreshed o 803(5). Recorded Recollection Page 43 of 65 Nathan Hardymon Difference between 803(3) and 803(4) Statement of a physical condition to a friend – 803(3) State of a physical condition to a doctor – 803(3) or (4) Statement of past symptoms to a doctor – 803(4)
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Evidence Spring 2017 Outline Lollar The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (5) Recorded Recollection. A record that: o (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; o (B) was made or adopted by the
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