specially concurring:
I agree that the defendant’s conviction should be affirmed. I also agree that the trial judge did not abuse his discretion when he refused to admit the defendant’s tape recording and accompanying cover letter. I write this concurring opinion because I believe the court’s opinion perpetuates two mistaken notions of evidence law.
First, the tape recording and cover letter are inadmissible because they are hearsay and no exception to the hearsay rule is applicable. Period. Whether they are "self-serving” is meaningless. A party does not offer evidence on its own behalf unless it is self-serving. The description adds nothing to the analysis a judge must make when deciding admissibility. In fact, it muddies the analytical waters.
The term "self-serving” is, as the court said in People v. Vanda (1982), 111 Ill. App. 3d 551, 557-58, 444 N.E.2d 609, "something of a misnomer.” Put another way, "it is irrelevant whether the statement was self-serving or disserving at the time of either being made or offered.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 801.1, at 635 (6th ed. 1994).
Second, the court’s opinion states that the state-of-mind exception to the hearsay rule applies only when the declarant is unavailable. I am aware that the requirement of unavailability appears in several Illinois cases (see People v. Silvestri (1986), 148 Ill. App. 3d 980, 500 N.E.2d 456), but, as Professor Graham writes:
"The disturbing indication that this hearsay exception requires that the declarant be unavailable [citations] is incorrect, ill-advised and accordingly should not be followed.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 803.4, at 712 (6th ed. 1994).
The better view is reflected in the Federal Rules of Evidence, where the state-of-mind exception to the hearsay rule applies even though the declarant is available as a witness. (See Fed. R. Evid. 803(5).) Admissibility should depend on the reliability of the evidence. The evidence offered by the defendant in this case was not reliable.
Because I believe an available declarant’s statement of his then-existing state of mind can be reliable evidence, I disagree with the court’s reasoning on this point.