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Dead Man Tell Tales: Thirty Times Three Years of the Judicial Process after Hillmon

62 Pages Posted: 19 Nov 2011  

Douglas D. McFarland

Mitchell|Hamline School of Law

Date Written: 1985


The author traces the development of the Hillmon doctrine, an exception to the hearsay rule that permits admissibility of a declaration of intent to do a future act as circumstantial evidence that the act was done. Arguing that the doctrine has been expanded – often by judicial inadvertence – to encompass acts of third parties and past acts, the author concludes that the courts should set about harnessing the exception before it abolishes the hearsay rule itself. This article argues that the Hillmon Court was presented with a classic choice between doing justice in the individual case and establishing a workable rule of law. The Court chose the former course by creating a new exception to the hearsay rule crafted especially for the unique factual circumstances of the case. Yet the Court’s novel approach did not go unnoticed; the new exception was launched into the stream of the judicial process and became a point of departure by which courts expanded the exception in the guise of applying it. Some courts expanded the exception knowingly, but others did so accidentally, for to some judges, “[t]he rule itself is more important than the theory on which it is founded.”

Keywords: Hillmon, declaration of intent, circumstantial evidence, hearsay rule, state of mind, hearsay exception

Suggested Citation

McFarland, Douglas D., Dead Man Tell Tales: Thirty Times Three Years of the Judicial Process after Hillmon (1985). Villanova Law Review, Vol. 30, No. 1, p. 1, February 1985. Available at SSRN:

Douglas D. McFarland (Contact Author)

Mitchell|Hamline School of Law ( email )

875 Summit Ave.
Saint Paul, MN 55105
United States

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