7.2 Exception Covers the Declarant’s Later Action
In Figgins v. Cochrane, 403 Md. 392, 942 A.2d 736 (2008) the Court of Appeals ties the state of mind for state of intention to the declarant’s (and no one else’s) later action:
In order to side-step the ruling of the Court of Special Appeals that correctly articulated that Maryland law does not permit testimony regarding the forward-looking aspect of the state of mind of a declarant when the declarant takes no further action after making a declaration, see Figgins, 174 Md.App. at 23–43, 920 A.2d at 585–97, Ms. Figgins contends that the trial judge erred because the proffered statement was admissible to show the state of mind of Mr. Borison, her father’s attorney, rather than her father.
We, however, have concluded consistently that evidence of a “forward-looking” state of mind is admissible only to show that the declarant, not the hearer, subsequently acted in accord with his or her stated intention.
At least one intermediate appellate Court held that the state of mind exception must result in future action. In Farah v. Stout, 112 Md.App. 106, 684 A.2d 471 (1996), the Court upheld the exclusion of a decedent’s statements purportedly saying that he was going to leave his caretakers money in his will as compensation for their services. The Farah case upheld the exclusion of the testimony on the basis that the decedent’s will did not reflect that he made such a provision, and therefore did not result in the future action required by Maryland Rule 5-803(b)(3). The Appellants, of course, regarded the failure to take the further action as a breach of the decedent’s contract with them. The Farah case, therefore, appears to hold that future action must be an element of the admissibility of the statements.