Document Type

Article

Comments

Some Observations on the Law of Evidence: State of Mind in Issue (with Robert M. Hutchins), 29 Columbia Law Review 147 (1929)

Abstract

Under the general American rule utterances revealing present state
of mind are admissible to prove the speaker's state of mind before, after,
or at time of speaking. The orthodox reason for the rule is well stated
by Wigmore: ". . . the judicial doctrine has been that there is a
fair necessity, for lack of better evidence, for resorting to a person's
own contemporary statements of his mental or physical condition. It
is, indeed, possible to obtain by circumstantial evidence . . . some
knowledge of a human being's internal state . . ., but in directness,
amount, and value, this source of evidence must usually be decidedly
inferior to the person's own contemporary assertions of those conditions."
To the suggestion that the person's own statements on the stand
would satisfy the need for his testimonial evidence, Wigmore says:
"The answer is that statements of this sort on the stand, where there
is ample opportunity for deliberate misrepresentation and small means
of checking it by other evidence or testing it by cross-examination, are
comparatively inferior to statements made at times when no inducement
to misrepresentation existed, and the probability of trustworthiness was
greater." It will be observed that in this view hearsay testimony as to
state of mind is not only better than circumstantial evidence, but also
better than direct testimonial evidence. Here the great safeguards of
cross-examination and the oath are regarded as inadequate. The statements
of the speaker at the time when reported by one who can be
sworn and cross-examined are more valuable than the testimony of
the person whose internal state is the subject of discussion.

Date of Authorship for this Version

1929

Keywords

law and evidence, state of mind

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