7.1 The State of Mind/Intent Exception to the Hearsay Rule

The Maryland rules provide an exception to the hearsay rule that covers a declaration of intention:

(3)               Then Existing Mental, Emotional, or Physical Condition.   A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant’s then existing condition or the declarant’s future action, 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 terms of declarant’s will.[1]

This hearsay exception, the “state of mind” exception, is a true exception:   it permits someone else to testify to the declarant’s statements and those statements are offered for the truth of the assertions made.   Thus, in Ederly v. Ederly, 193 Md.App. 215, 996 A.2d 961 (2010) the Court held that a woman’s supposed declaration of where she wanted to be buried (Israel not Maryland) was admissible in a dispute among her children as to the eventual disposition of her body.   Ederly is a remarkable case because the then state of mind obviously was not offered to prove “the declarant’s future action” which, as the Ederly Court observed, is the usual circumstance.   In Ederly, by definition, others and not the declarant would need to take the further action.