Physical Condition
Text of the rule
• The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, design, 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 execution, revocation, identification, or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.
Evid. R. 803(3)(emphasis added)
• For information about using hearsay to show a declarant’s then-existing state of mind, please review State of Mind.
Interpretations of the text: In general
• Evidence Rule 803(3) allows for admission of hearsay when the statement is offered to show a declarant's then-existing state of mind, emotion, sensation, or physical condition.
Pierce v. State, 705 N.E.2d 173, 175-76 (Ind. 1998)(emphasis added)
See McGrew v. State, 673 N.E.2d 787, 795 n. 6 (Ind. Ct. App. 1996), reh’g denied, aff’d in relevant part, 682 N.E.2d 1289 (Ind. 1997)(“Evid. R. 803(3) also allows the admission of statements regarding the declarant's then-existing physical condition, such as pain.”)
• We have noted three situations where such testimony is admissible: (1) to show the intent of the victim to act in a particular way, (2) when the defendant puts the victim's state of mind in issue, and (3) sometimes to explain physical injuries suffered by the victim.
Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind. 2000)(citing Taylor v. State, 659 N.E.2d 535, 543 (Ind. 1995))(emphasis added)
See Pierce v. State, 705 N.E.2d 173, 176 (Ind. 1998)(“Such instances include where the statements are offered: (1) to show the intent of the victim to act in a particular way, (2) to controvert a defendant's evidence when the defendant puts the victim's state of mind at issue, and sometimes (3) to explain a victim's physical injuries.”)
See also Taylor v. State, 659 N.E.2d 535, 543 (Ind. 1995)(“[W]e have allowed such testimony in limited circumstances to explain physical injuries suffered by the victim at the hands of the defendant.”)
See also Nicks v. State, 598 N.E.2d 520, 525 (Ind. 1992)(“Indiana case law holds that hearsay remarks of a murder victim are admissible to demonstrate the victim's explanation of prior injuries inflicted by the defendant.”)
• For information about using hearsay to show the intent of the declarant to act in a particular way, or when the defendant puts the victim's state of mind in issue, please review State of Mind.
• [A]ny statements describing the locality of the pain or the symptoms of an illness are admissible.
Simmons v. State, 746 N.E.2d 81, 88 (Ind. Ct. App. 2001), reh’g denied, trans. denied
Interpretations of the text: Interpretation of “then-existing”
• [A]ny statements describing how a victim was injured are not admissible as they recount a past event remembered.
Simmons v. State, 746 N.E.2d 81, 88-89 (Ind. Ct. App. 2001), reh’g denied, trans. denied(emphasis added)
• [The victim’s] statement that [the defendant] had pulled her hair recounted a painful experience in the past and was not a description of pain she was presently experiencing. As such, it is not admissible under Evid. R. 803(3).
McGrew v. State, 673 N.E.2d 787, 795 n. 6 (Ind. Ct. App. 1996), reh’g denied, aff’d in relevant part, 682 N.E.2d 1289 (Ind. 1997)
Examples from case law
• We observe that [the victim’s] statement that she “still hurt a little bit” to [her daughter] and Officer Keith constituted a then existing physical condition, which is one of the exceptions to the hearsay rule, and therefore a proper objection to that testimony on hearsay grounds would not have been sustained.
Palacios v. State, 926 N.E.2d 1026, 1028 (Ind. Ct. App. 2010)
• [The victim,] the declarant, made a statement of her then existing sensation or physical condition at a time when she was perceiving this condition, that is, while she was being bathed. Therefore, under Rule 803(3), the statement was admissible as an exception to the hearsay rule. The trial court did not err.
Fleener v. State, 648 N.E.2d 652, 655 (Ind. Ct. App. 1995), aff’d in relevant part, 656 N.E.2d 1140 (Ind. 1995)
Rationale
• The purpose of this hearsay exception is to allow comments concerning a declarant's then existing pain or symptoms which ordinarily would be difficult or impossible to prove.
Simmons v. State, 746 N.E.2d 81, 88 (Ind. Ct. App. 2001), reh’g denied, trans. denied