Thursday, July 26, 2012
Return To Sender: Court Of Appeals Of Virginia Finds E-Mail Inadmissible Under State Of Mind Exception
[Update: 9/13/12: As shown by this Replacement Opening Brief of Appellant [Download Replacement Opening Brief], there is a colorable claim that the e-mail was not admitted to prove the truth of the matter asserted, which would make it non-hearsay.]
Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay 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.
Virginia doesn't yet (but will soon have) codified rules of evidence, but its courts do recognize the same state of mind exception to the rule against hearsay. See, e.g., Andrews v. Creacy, 696 S.E.2d 218, 227-28 (Va.App. 2010). What this also means is that, as with Federal Rule of Evidence 803(3), Virginia's state of mind exception doesn't cover statements of memory or belief. And that was precisely the problem for the appellee in Tucker v. Clarke, 2012 Wl 2886713 (Va.App. 2012).
In Clarke, Sharon Ruth Tucker (mother) appealed a custody order in which John Harrison Clarke (father) was awarded sole legal and physical custody of their child. After judgment was entered, the mother appealed, claiming, inter alia, that the trial court erred in not allowing her to admit into evidence e-mails regarding the child's teacher and principal because of hearsay. Specifically,
During the trial, evidence came before the trial court that mother went to the child's classroom and called the teacher a liar in front of the children. Mother sought to introduce e-mails to explain her actions and why she acted the way she did. She argued that it showed her state of mind at the time. The trial court held that the e-mail was "written to third person after the incident and it is written by a party, it is a self-serving statement and it is not admissible on this ground." The trial court explained to mother that she could testify and explain her actions without asking the trial court to infer from the e-mails what she meant. Mother then proceeded to explain her actions to the trial court. She subsequently attempted to introduce her e-mails again, and father objected. The trial court sustained the objection because the e-mails were self-serving and mother testified about her actions.
In affirming this ruling, the Court of Appeals of Virginia found that "[t]he trial court did not err in sustaining father's objection because the e-mails were self-serving and mother testified about her actions." These conclusions were correct, but I would also add that the reason that the e-mails were not admissible under the state of mind exception to the rule against hearsay is because they were statements of memory rather than statements concerning her present state of mind.