Admissibility of Evidence - Exceptions to the Rule against Hearsay - State of Mind
The state of mind exception to the hearsay rule allows in evidence a statement of reason, motive or feeling when relevant, which would otherwise be hearsay, not for its truth, but to show the speaker's mental state,[1] to explain the speakers acts,[2] and to show why the person who heard the speaker acted the way he did.[3]
Statements about a present physical condition are also admissible for the truth. Involuntary expressions of pain such as screams, groans or moans which are introduced to show the speaker was in pain, are admissible, but a statement that the speaker is currently suffering pain is not admissible unless made to a doctor for purposes of treatment.[4]
The expression of the state of mind must be made contemporaneously with the thought giving rise to the expression. In People v. Reynoso, the defendant argued that he should be allowed to introduce a statement, made to his sister two hours after the shooting, in which he said he believed the victim had been armed. The court held the statement irrelevant unless it was offered to prove its truth, and in that respect, it would be inadmissible hearsay. "While such declarations may be received to show the declarant's state of mind at the time the statement was made, they are not admissible to establish the truth of past facts contained in them ...." [5]
Where the making of the statement indicates circumstantially the state of mind of the speaker or person who heard the statement it is not hearsay. Where a witness' state of mind is relevant, the witness may testify to an out-of-court statement made by others which would indicate circumstantially what he believed at the time.[6] For example, in People v Harris,[7] at trial, for the purpose of showing that he had acted in the heat of passion and without intent to kill, the defendant was properly permitted to testify that, just before killing her, his wife had told him that she was pregnant by another man. It did not matter whether the wife's statement was true or false. What she said to the husband may have produced an effect upon his state of mind.
In Loetsch v NYC Omnibus,[8] the state of mind exception was applied to the speaker. At trial, and on the issue of damages suffered by the surviving husband, the defendant offered in evidence a statement in the wife's will, executed a few months before the fatal accident, to the effect that since her husband had been cruel to her and had failed to support her, she was leaving him only one dollar. The Appellate Division held that the trial court erred in excluding this evidence and that: "No testimonial effect need be given to the declaration, but the fact that such a declaration was made by the decedent, whether true or false, is compelling evidence of her feelings toward, and relations with, her husband”.
Statements of the parents or witnesses, which are offered in custody and visitation cases to explain their actions, are not hearsay. In Mateo v Tuttle[9] the Appellate Division found that “In any event, the statements of the child to petitioner and his wife as well as statements made by a nurse to petitioner's wife were not offered for the truth of the matters asserted therein but, rather, were offered to explain actions taken by petitioner and his wife, and thus those statements and that testimony fall within an exception to the hearsay rule”.
In Matter of Noemi D,[10] Respondent appealed from an order terminating her parental rights based on a finding of permanent neglect. The Appellate Division rejected respondent's contention that petitioner failed to demonstrate by clear and convincing evidence that it had exercised diligent efforts to strengthen the parent-child relationship and to reunite respondent with her child. It held that the court did not err in admitting in evidence certain psychological reports under the business records exception to the hearsay rule and that the court properly allowed the child's psychologist to testify concerning certain out-of-court statements made by the child. Those statements were offered to show the child's state of mind rather than to establish the truth of the matter asserted.
[1] See People v Ricco, 56 NY2d 320, 452 NYS2d 340 (1982)
[2] Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 52 N.E.2d 448 (1943).
[3] People v. Felder, 37 N.Y.2d 779, 375 N.Y.S.2d 98, 337 N.E.2d 606 (1975). Hine v. N.Y. Elevated R.R. Co., 149 N.Y. 154, 43 N.E. 414 (1896).
[4] Roche v. Brooklyn City & Newtown R.R. Co., 105 N.Y. 294, 11 N.E. 630.
[5] People v. Reynoso, 73 N.Y.2d 816, 537 N.Y.S.2d 113, 534 N.E.2d 30 (1988).
[6] Bergstein v Bd of Ed, 34 NY2d 318, 324, 357 NYS2d 465.
[7] 209 NY 70, 102 NE 546.
[8] 291 NY 308, 52 NE2d 448.
[9] 26 A.D.3d 731, 809 NYS2d 699 (4th Dept.).
[10] 43 A.D.3d 1303, 842 N.Y.S.2d 808 (4 Dept. 2007).
The state of mind exception to the hearsay rule allows in evidence a statement of reason, motive or feeling when relevant, which would otherwise be hearsay, not for its truth, but to show the speaker's mental state,[1] to explain the speakers acts,[2] and to show why the person who heard the speaker acted the way he did.[3]
Statements about a present physical condition are also admissible for the truth. Involuntary expressions of pain such as screams, groans or moans which are introduced to show the speaker was in pain, are admissible, but a statement that the speaker is currently suffering pain is not admissible unless made to a doctor for purposes of treatment.[4]
The expression of the state of mind must be made contemporaneously with the thought giving rise to the expression. In People v. Reynoso, the defendant argued that he should be allowed to introduce a statement, made to his sister two hours after the shooting, in which he said he believed the victim had been armed. The court held the statement irrelevant unless it was offered to prove its truth, and in that respect, it would be inadmissible hearsay. "While such declarations may be received to show the declarant's state of mind at the time the statement was made, they are not admissible to establish the truth of past facts contained in them ...." [5]
Where the making of the statement indicates circumstantially the state of mind of the speaker or person who heard the statement it is not hearsay. Where a witness' state of mind is relevant, the witness may testify to an out-of-court statement made by others which would indicate circumstantially what he believed at the time.[6] For example, in People v Harris,[7] at trial, for the purpose of showing that he had acted in the heat of passion and without intent to kill, the defendant was properly permitted to testify that, just before killing her, his wife had told him that she was pregnant by another man. It did not matter whether the wife's statement was true or false. What she said to the husband may have produced an effect upon his state of mind.
In Loetsch v NYC Omnibus,[8] the state of mind exception was applied to the speaker. At trial, and on the issue of damages suffered by the surviving husband, the defendant offered in evidence a statement in the wife's will, executed a few months before the fatal accident, to the effect that since her husband had been cruel to her and had failed to support her, she was leaving him only one dollar. The Appellate Division held that the trial court erred in excluding this evidence and that: "No testimonial effect need be given to the declaration, but the fact that such a declaration was made by the decedent, whether true or false, is compelling evidence of her feelings toward, and relations with, her husband”.
Statements of the parents or witnesses, which are offered in custody and visitation cases to explain their actions, are not hearsay. In Mateo v Tuttle[9] the Appellate Division found that “In any event, the statements of the child to petitioner and his wife as well as statements made by a nurse to petitioner's wife were not offered for the truth of the matters asserted therein but, rather, were offered to explain actions taken by petitioner and his wife, and thus those statements and that testimony fall within an exception to the hearsay rule”.
In Matter of Noemi D,[10] Respondent appealed from an order terminating her parental rights based on a finding of permanent neglect. The Appellate Division rejected respondent's contention that petitioner failed to demonstrate by clear and convincing evidence that it had exercised diligent efforts to strengthen the parent-child relationship and to reunite respondent with her child. It held that the court did not err in admitting in evidence certain psychological reports under the business records exception to the hearsay rule and that the court properly allowed the child's psychologist to testify concerning certain out-of-court statements made by the child. Those statements were offered to show the child's state of mind rather than to establish the truth of the matter asserted.
[1] See People v Ricco, 56 NY2d 320, 452 NYS2d 340 (1982)
[2] Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 52 N.E.2d 448 (1943).
[3] People v. Felder, 37 N.Y.2d 779, 375 N.Y.S.2d 98, 337 N.E.2d 606 (1975). Hine v. N.Y. Elevated R.R. Co., 149 N.Y. 154, 43 N.E. 414 (1896).
[4] Roche v. Brooklyn City & Newtown R.R. Co., 105 N.Y. 294, 11 N.E. 630.
[5] People v. Reynoso, 73 N.Y.2d 816, 537 N.Y.S.2d 113, 534 N.E.2d 30 (1988).
[6] Bergstein v Bd of Ed, 34 NY2d 318, 324, 357 NYS2d 465.
[7] 209 NY 70, 102 NE 546.
[8] 291 NY 308, 52 NE2d 448.
[9] 26 A.D.3d 731, 809 NYS2d 699 (4th Dept.).
[10] 43 A.D.3d 1303, 842 N.Y.S.2d 808 (4 Dept. 2007).
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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