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Hearsay—Present Sense Impression

July 4, 2011

We’ll start with the Rule, and then ask, and perhaps even answer, a few important questions.

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

What are the elements of the foundation?

The following statement is representative of what most courts say are the elements of the foundation for a present sense impression:

There are three principal requirements which must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration and the event described must be contemporaneous.

United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998).

What is “contemporaneous?”

“Contemporaneous” is short for the language in the rule “while the declarant was perceiving the event or condition, or immediately thereafter.”  It’s easy to know what it means to make a statement “while … perceiving the event,” but what does it mean to say “immediately thereafter?”  It means a very short period of time, measured in terms of minutes, if not seconds.  Our Book cites a case saying 15 to 45 minutes is too long (Hilyer v. Howat Concrete Co., 578 F.2d 422 (D.C. Cir. 1978)), and I’ll cite a case saying less than a minute is quick enough (United States v. Davis, 577 F.3d 660, 668 (6th Cir. 2009)), but what does that tell us?  What happens if it’s in the middle?  Here is a discussion from a recent opinion of the Third Circuit:

The fundamental premise behind this hearsay exception “is that substantial contemporaneity of event and statement minimizes unreliability due to [the declarant’s] defective recollection or conscious fabrication.”  …  “The idea of immediacy lies at the heart of the exception,” thus, the time requirement underlying the exception “is strict because it is the factor that assures trustworthiness.”  …  Put differently, the temporality requirement must be rigorous because the passage of time-or the lack thereof-is the effective proxy for the reliability of the substance of the declaration; hence the greater the passage of time, the less truthworthy the statement is presumed to be, and the more the scales should tip toward inadmissibility.  [United States v.] Manfre,368 F.3d [832,] 840 [(8th Cir. 2004)] (“The opportunity for strategic modification undercuts the reliability that spontaneity insures.”). Nevertheless, some brief temporal lapse is permissible so as to accommodate “the human realities that the condition or event may happen so fast that the words do not quite keep pace.”  … ; Fed.R.Evid. 803(1) Adv. Comm. Notes (1975) (“[w]ith respect to the time element, [803(1)] recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable”).

While it is true, as the Government notes, that courts have not adopted any bright-line rule as to when a lapse of time becomes too lengthy to preclude Rule 803(1)’s application, we are nevertheless unaware of any legal authority for the proposition that 50 minutes after the fact may appropriately be considered “immediately thereafter.” On the contrary, given the clear language of the rule and its underlying rationale, courts consistently require substantial contemporaneity. See, e.g., United States v. Shoup, 476 F.3d 38, 42 (1st Cir.2007) (911 phone call made “only one or two minutes … immediately following” event admissible); United States v. Danford, 435 F.3d 682, 687 (7th Cir.2006) (statement made “less than 60 seconds” after witnessing robbery qualified as present-sense impression); United States v. Jackson, 124 F.3d 607, 618 (4th Cir.1997) (statement by witness to police upon their arrival at scene that defendant was threatening to kill her family was admissible as “description of ongoing events”); [United States v.] Blakey, 607 F.2d at 779, 785-86 [(7th Cir. 1979)] (not error to admit statement made at most 23 minutes after event); cf. Manfre, 368 F.3d at 840 (statement made after “an intervening walk or drive” following event not admissible; “The present-sense-impression exception … is rightfully limited to statements made while a declarant perceives an event or immediately thereafter, and we decline to expand it to cover a declarant’s relatively recent memories.”); . Indeed, we have previously expressed skepticism that a statement made some 40 minutes after the fact could be properly admitted as a present-sense impression. Mitchell, 145 F.3d at 577 (where robbery occurred between 9:00am and 9:15am and notes were found in getaway car a mile from the crime scene at approximately 10:00am, intervening lapse was “probably too long for applicability of the present-sense impression[,] … which requires the statement to be made virtually contemporaneously with the event being perceived”); … .

United States v. Green, 556 F.3d 151, 155-57 (3d Cir. 2009).

So, “what is ‘contemporaneous’?”  As usual, it’s discretionary!  Make an argument in terms of “spontaneity” (another look at the Advisory Committee Notes for reference) and the language used in the cases cited by the Third Circuit, keeping in mind the distinction between perception and recent memory in Manfre, and your argument will be a winner!

Give me Some Examples!

What type situation gives rise to a present sense impression?  We saw some from the discussion above, like 911 calls (Shoup), statements about crimes that just occurred (Danford), and statements about ongoing situations (Jackson).  What about note taking?  If someone takes notes during a conversation, can those notes be admissible under Rule 803(1) to prove the truth of what the note taker wrote?  Can such a conversation be an “event” under the rule?  What if the conversation is adversarial, and in anticipation of litigation?  Under that circumstance, would allowing the notes be consistent with the requirement of “spontaneity” and the goal of preventing “conscious fabrication?”  In Tracinda Corp. v. DaimlerChrysler AG, 362 F. Supp. 2d 487, 501-02 (D. Del. 2005), the court allowed into evidence the notes of an employee of the plaintiff from a meeting with the defendants in anticipation of litigation.  Think about this, and think about some argument that the notes do not meet the elements of the foundation for Rule 803(1). 

Now you help me! 

Think of an example of some contemporaneous account of an event that you have seen which would qualify as a present sense impression, and share it with me in class on Tuesday.

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