20. The doctor's testimony should be admitted as

A statement of a person, now unavailable as a witness, may be admissible if it was against that person's pecuniary, proprietary, or penal interest when made. To qualify as a statement against interest, the following requirements must be met: (i) the statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant's position would have made it only if she believed it to be true; (ii) the declarant must have had personal knowledge of the facts; (iii) the declarant must have been aware that the statement was against her interest and she must have had no motive to misrepresent when she made the statement; and (iv) the declarant must be unavailable as a witness. Fed. R. Evid. 804(b)(3).

In a prosecution for homicide or civil action, a statement made by the now-unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible. Fed. R. Evid. 804(b)(2). The declarant need not actually die, but he must be unavailable at the time the statement is offered.

When an out-of-court statement is introduced for any purpose other than to prove the truth of the matter asserted, there is no need to cross-examine the declarant, so the statement is not hearsay. One example of this includes statements offered to show the effect on the listener, such as knowledge. Another example is when statements are offered as circumstantial evidence of the declarant's state of mind. Statements that reflect directly (as opposed to circumstantially) on the declarant's state of mind are hearsay but are admissible under the Federal Rule of Evidence (FRE) 803(3) exception. Many courts have used this «state of mind exception» to admit all declarations that reflect on the declarant's state of mind without regard to the fact that they could simply be admitted as non-hearsay. As a practical matter, the distinction makes little difference as the admissibility is the same.

A declaration made by a declarant during or soon after a startling event is admissible as an exception to the hearsay rule. The declaration must be made under the stress of excitement produced by the startling event. The declaration must concern the immediate facts of the startling occurrence. Fed. R. Evid. 803(2).

A is correct. The doctor's testimony regarding the husband's statement should be admitted as a statement against interest. This is because the husband is unavailable as a witness, his statement was admitting fault for the accident, and at the time it was made, it tended to subject him to civil liability and would render invalid any claim he had against the driver. A reasonable person in the husband's position would not have made the statement unless he believed it to be true. Moreover, the husband had personal knowledge of his own fault in the accident, it would have been clear to him that making the statement was against his interest when he made it, and finally, there was no motive for him to misrepresent the facts. As such, the testimony regarding the statement is admissible under the statement against interest exception to the hearsay rule.

B is incorrect. The dying declaration exception requires the declarant to believe his death was imminent and that the statement must concern the cause or circumstances of what he believed to be his impending death. Here, there is no evidence indicating that the husband made the statement knowing his death was imminent or that his statement concerned the cause or circumstances of his death. Although he was in great pain, there is no indication that the husband knew he was going to die and was making the statement as a dying declaration.

C is incorrect. The husband's statement is being offered to prove he was at fault for the accident, not to prove what was in his mind when he died. In addition, it is a statement of memory or belief to prove the fact remembered or believed — that he was at fault. As such, it is specifically excluded from the definition of a statement of then-existing mental state and is inadmissible on that basis.

D is incorrect. There is no evidence that the husband's statement related to a startling event or was made while he was under the stress of excitement caused by the event or condition. The husband may have been in great pain, but his statement was not an excited utterance because of the accident.