The Admissibility of Memories and Beliefs: The Hearsay Exception that Even the Best Judges Frequently Misunderstand
22 Criminal Justice 2 (Summer 2007)
9 Pages Posted: 17 May 2012 Last revised: 22 May 2012
Date Written: 2007
A great deal of confusion surrounds Federal Rule of Evidence 803(3), the hearsay exception that generally allows the admission of statements describing the speaker's mental state -- unless the mental state is a memory or belief offered to prove the truth of the speaker's memory or belief. This article clarifies the working of that exception, and reviews a number of reported decisions in which state and federal appellate courts have been confused by its theory and operation.
The article focuses on two lines of criminal cases in which the courts have demonstrated particular difficulty and misunderstanding in applying this hearsay exception: (1) Cases in which the accused offers evidence that he himself told others out of court that he thought he was innocent, and (2) Cases in which the prosecution offers evidence that a murder victim had once told others about her fear of the accused on the basis of things he had done or said to her in the past.
The article concludes with a cautionary note about the important implications these mistaken appellate decisions carry for a trial judge who is faced with the challenge of deciding whether to admit evidence under this exception, especially in the many cases in which such a ruling would require the judge to trust a jury to understand and follow a distinction that has bedeviled so many of the most experienced appellate judges in the nation.
Keywords: evidence, hearsay
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