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Some Observations on the Law of Evidence -- State of Mind in Issue (with D. Slesinger), 29 Columbia Law Review 147 (1929)


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 condi-tions." 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 state-ments 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.

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