To fall within the hearsay exception created by Federal Rule of Evidence 803(3) or a comparable State rule for person's present internal states, a statement by the declarant (the maker of the statement) must be contemporaneous with the mental state or event sought to be proven.

United States v. Hudson, 884 F.2d 1016, 1021 (7th Cir. 1989) (upholding trial court's admission into evidence of three prior counter-jumpings because the three prior incidents and the charged offense "have sufficient points in common for the prior acts to be admissible as modus operandi evidence under the...If another crime or wrong is offered under the second sentence of Federal Rule of Evidence 404(b) to show the identity of an actor, wrongdoer, or defendant (e.g., to show that a criminal defendant rather than someone else committed the crime for which defendant is on trial), the other crime or wrong and the act, wrong, or crime at issue at trial must have been committed in a distinctive as well as similar fashion.

Cf. United States v. May, 622 F.2d 1000, 1007 (9th Cir. 1980) (upholding trial court's admission of the Apprehension Data Cards as non-hearsay evidence because the written contents of the Apprehension Data Cards were not....A statement can be hearsay only if the statement is "offered to prove the truth of the matter asserted." The purpose for which a statement is offered depends on the purpose of the offeror of the statement. Hence, a statement is offered to prove the truth of the matter asserted if the offeror (normally trial counsel) seeks to use the statement to show that the matter or proposition asserted by the declarant (the maker of the statement) is in fact true.

Zubulake v. UBS Warburg LLC, 382 F. Supp. 2d 536, 542-543 (S.D.N.Y. 2005) (holding, in an employment discrimination case, that evidence of employee's performance appraisal was inadmissible as habit evidence because her "insubordination at two securities firms [was] not of sufficient frequency...If a pattern of behavior of a natural person does not rise to the status of a habit, it may constitute a character trait and such non-habitual behavior may be barred by the prohibition against circumstantial character evidence.