In the weeks leading up to the beating death of a three year-old child at the hands of mom's boyfriend, the child told both his uncle and his grandmother, "John hits me." Any ideas?

How did the victim's comments to the uncle and grandmother come about? Were they asking him about bruising he had, ant that was his response? If so, Rule 803 (3) could work, as the child would be explaining an existing physical condition.

The main issue to get it out of hearsay is to determine how the statement(s) by the child came about. 803 (1, (3), or (4) will be your best options probably.

Also look at Rule 804 (b)(3)B. That one may fit also. Your declarant is definatley unavailable under 804 (a)4. You would need to try to pigeon hole the statement into one of personal or family history. It is worth a try if the other exceptions don't work.

The child volunteered the information in response to questions by uncle and g-mother (on seperate occaisions)e.g., "What's wrong today? You seem sad." The minute the defense implies that the relationship between defendant and injured party was a good one, I believe the statements come in for the child's state of mind and to rebut the defensive theory...Of course what I want is to get them in for truth. Opotional completeness may work if the defense blunders. Any other ideas?

You don't say if you are going on a straight murder charge or on injury to a child.

If you are doing injury to a child, how about bringing in the statement under CCP 38.072 (Outcry)

If you are pursuing a murder charge, try CCP 38.36 which allows you to go into the relationship between the defendant and his victim, but you still need to deal with the hearsay. Could you develop an excited utterance exception. Mind you, the child doesn't have to be weeping and agitated to fit the exception, just "in the moment."

The charge is capital waiver with a count of felony murder (death+injury to child). The problem with outcry is the unavailability of the child as witness. 38.37 and 38.36 are ok but for the hearsay problem. I have toyed with excited utterance although it would be more a "sad or depressed" utterance. Thanks for all the help....

I would work the Excited Utterance and also the Exisiting Mental or Emotional condition. That may work the way you've described the facts. The child was explaining "what was wrong". He would be explaining a state of mind, emotion or physical condition. I think you can make it work.

I would wait for the door to open in trial. Frequently, if you wait to hear the arguments of the defense and the testimony, such hearsay easily comes in through an open door. And you still can hold it for rebuttal if the door hasn't opened, although I'm not hearing a solid ground for its admission.

Thanks for the ideas...its good to know I'm on the right track. Better wait to hear the hinges creak.

The defense opened the door with the first witness. The jury assessed punishment at life. Thanks for the help!