Pennsylvania Courts still struggle with the 803(3) state of mind hearsay exception
The day a woman died, a note was found on her day planner in her handwriting that read “”If something happens to me – JOE.” Needless to say, “Joe” ended up charged with murder. And in upholding the admission of the note found in the planner, the Pennsylvania Superior Court demonstrated, yet again, that the “state of mind” exception to the ban on hearsay, that found in Pennsylvania Rule of Evidence 803(3), is all-too-often misunderstood or misapplied.
What is the state of mind exception? It has two components common to all hearsay – it must include an assertion, and that assertion must be offered for its truth. And there is more. The assertion must satisfy the Rule, which provides for
[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.
Pa.R.Evid. 803(3). Typical examples include “I’m happy,” “I’m frustrated,” “I’m tired,” “my back hurts,” or “I plan on going to the library at 2 p.m.” Each is, in effect, a present sense impression of what the declarant is feeling at that moment.
However, the Rule excepts “a statement of memory or belief to prove the fact remembered or believed…” What does that look like? “I’m angry because last week Jules humiliated me.” The italicized words are a statement of memory – and they are inadmissible if they are being used to prove that indeed Jules humiliated the speaker one week earlier.
Now, back to “Joe.” One must first ask are the words “If something happens to me – Joe” an assertion? They most certainly are – the declarant is stating her belief that “if something happens to me Joe will be the agent who caused it.” And in the murder trial at issue, that’s precisely what the prosecution sought to prove – that the woman did not die as the result of an accident but instead at the hands of Joe.
So, where is the misunderstanding? Before turning to that, we need to understand a non-hearsay form of state of mind. Imagine someone coming to court and saying that “I heard Jules say the Phillies are a terrible team.” If we are using this to prove that Jules thinks that, it is not hearsay; it only becomes hearsay when the goal is to prove that the fact asserted – that the Phillies are a terrible team – is true.
The Superior Court conflated the two. That it was confused is shown by the following passage:
We conclude that the note was admissible under the state-of-mind exception…The note was admissible over the hearsay objection because it tended to establish the victim’s then-existing belief, i.e., her state of mind, which was relevant to show the ill will that the victim perceived from Fitzpatrick, and, by implication, that their marriage was not going well. The note was thus not offered for the truth of the matter asserted and therefore was not hearsay.
Commonwealth v. Fitzpatrick, 2019 Pa. Super. LEXIS 144, *10-11, 2019 PA Super 46, 2019 WL 666714. A statement cannot be hearsay and “not offered for the truth of the matter asserted…” Hearsay by definition is offered and admitted for its truth.
There are additional errors here. To the extent that the Superior Court meant that this was indeed not hearsay, it failed to conduct a Rule 403 analysis, i.e., whether a jury would be misled or confused and possibly use the words for the truth – that Joe was responsible for the death. In other words, the jury was supposed to grasp that the words meant ‘I think he wants me dead and that is evidence that our marriage is bad’ but that the same words were not proof that he actually was the murderer, a form of mental gymnastics virtually impossible to accomplish.
Beyond that there was an even more profound error. The Superior Court decided after the fact that the words were not offered for their truth, but no limiting instruction was given to the jury, the trial judge admitted the words for their truth and that’s what the prosecutor argued in closing.
Anne Marie’ s voice is here to tell you something else. On the day of her death, June 6th, 2012, if something happens to me, Joe. Annemarie Fitzpatrick. If her voice is in this room, ladies and gentlemen, it’ s on this side of the courtroom . And that’ s what she wanted you to know.
I will reemphasize just like the defense said he said Annemarie is telling you what to do . He’ s right, ladies and gentlemen . Annemarie told you if something happens to her, Joe
Strangely, the Superior Court recognized that another note written by the woman just before she died was an assertion offered for its truth and did not meet the 803(3) standard. That same day, the woman sent an email that read “’Joe and I are having marital problems. Last night we almost had an accident where a huge log fell on me. Joe was on the pile with the log and had me untying a tarp directly below.” The Superior Court properly identified this as “the victim’s recount of her ‘memory or belief to prove the fact remembered[.]’” Yet the planner statement is an assertion of belief – that Joe will be the one responsible for my death. There is no logic to labeling one circumstantial evidence of a bad marriage and the other inadmissible hearsay.
Two lessons emerge from this case. “State of mind” hearsay remains a confused area of law in Pennsylvania; and appellate courts should not label a statement as admissible for a non-hearsay purpose when no one told that to the jury and the words were indeed argued for their truth.
“Reprinted with permission from the May 1, 2019 issue of THE LEGAL INTELLIGENCER. © [PUBLICATION YEAR] ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”