Understanding the Present Sense Impression exception.
The Present Sense Impression exception is the first exception to the rule against hearsay and can be found under Rule 803.
But, before mastering an exception to hearsay, you should first understand what hearsay is.
The purpose of the rule against hearsay is prevent out-of-court statements from being introduced into evidence because that statement may not be truthful.
And if the lawyer cannot cross examine the person that made the out-of-court statement (i.e., the declarant), then how is the lawyer supposed to test the credibility of the statement? They can't.
In response, the lawyer can use one of the top courtroom objections -- the hearsay objection.
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Although hearsay evidence is generally not allowed in court because of its potential unreliability, courts can admit hearsay evidence if certain hearsay exceptions apply.
In this post, we'll simplify the Rule 803(1) exception, which is better known as the Present Sense Impression exception.
Rule 803. Exceptions to the Rule Against Hearsay.
Rule 803 is a list of twenty-three exceptions to the rule against hearsay. Unlike Rule 804's exceptions to hearsay, Rule 803 does not consider whether the declarant is available to testify as a witness.
Rather, Rule 803 is primarily concerned about the context of the out-of-court statement.
Therefore, since Present Sense Impression falls under Rule 803, the analysis will focus on facts surrounding the out-of-court statement.
Was the hearsay statement made spontaneously?
Looking at Rule 803, the first three exceptions are Present Sense Impression, Excited Utterance, and Then-Existing Mental, Emotional, or Physical Condition.
These three exceptions all share the same underlying principle: spontaneity.
The hearsay objection is designed to keep out statements that declarants have carefully crafted for their benefit at trial. However, a spontaneous statement is often believed to be more trustworthy because the declarant did not have the time to think about the effects of that statement.
As a result, the law understands that an all-out ban on all out-of-court statements is too much; especially if the statement was made when there was not enough time to careful craft such a statement.
This is why we have the Present Sense Impression exception to hearsay.
What is the Present Sense Impression exception?
The Present Sense Impression exception applies to instances when the out-of-court statement was made (1) while the declarant observed the event or condition; or (2) immediately afterward.
When statements are made while or immediately after experiencing an event, the possibility of intentional misrepresentation or deliberate inaccuracy is greatly reduced.
Again, this concept of spontaneity is why present sense impressions are admissible forms of evidence at trial.
The critical factor behind this concept is time.
Was the statement made while the declarant observed the event?
If not, was the statement made immediately afterward?
Since there is no clear definition of "immediately afterward," this part of Present Sense Impression will be the battleground for most lawyers arguing Rule 803(1)'s application (or lack thereof).
When should the Present Sense Impression Hearsay exception apply?
When considering Present Sense Impression's concept of time, you need to keep in mind two things.
First, you don't want to be too consumed with hearsay exceptions that you overlook that the statement needs to satisfy Rule 402 and Rule 403.
Understanding Rule 403
Rule 403 is the ultimate catch-all objection and must be in every trial lawyer's arsenal. Not familiar with Rule 403? Click the button to watch a super-helpful video on YouTube!
Second, you don't want to assume that an out-of-court statement is hearsay and immediately jump to hearsay exceptions. For example, if a statement is not being introduced to prove the truth of the matter asserted, then the statement is not hearsay; thus, there's no need to go through the hearsay exceptions.
If the statement survives 402, 403, and is hearsay, then it's now time to determine whether the Present Sense Impression exception applies.
Let's start with the easy scenario.
If the statement is made while the event occurs, then the Present Sense Impression applies.
On the other end of the spectrum, if the statement is not made immediately after the event, then the exception cannot apply.
The real arguments exist between these two scenarios because what is considered to be immediately after? One minute? Ten minutes? More?
To make the best Present Sense Impression argument, you may need to rely on precedent in your jurisdiction, good facts, and a solid argument to show whether the declarant had enough time to think about the effects of the statement.
In other words, will you be able to prove or disprove spontaneity?
Whichever side you are on, explain the purpose of this specific hearsay exception; that way, you can show why you are emphasizing the critical element of time.
Example of Present Sense Impression exception.
Now, let's bring everything together with an example.
Scenario: You are a Plaintiff's lawyer representing someone that was injured in a car wreck case. To prove negligence, your goal is to show that the Defendant ran a red light.
Example 1: Live-streaming
In this case, there is only one eye witness, but she's unable to testify (the reason is irrelevant). Somehow you were able to get a copy of a video that the Witness made while live-streaming here day. This video contains a significant statement that you want to use at trial.
The statement in the video goes like this: "Wow! That red truck just ran the red light and hit the white car." And then, the camera focuses on the Defendant and Plaintiff in their respective vehicle.
With this video, you now have an out-of-court statement made by the Witness (a declarant) that we are trying to offer to prove the truth of the matter asserted.
Does the Present Sense Impression exception to hearsay apply?
In this scenario, the answer is yes because the statement is made while or immediately after the even occurred.
Example 2: After a nap
Let's alter the facts.
The Witness sees the events, but doesn't livestream. Instead, she goes home, takes a nap, wakes up 2 hours later, and decides to record a video on how her day went. In doing so, she makes the same statement as in the former scenario.
Does the Present Sense Impression exception apply here?
Nope. The statement was not made during or immediately after the event. Plus, there is no evidence showing spontaneity.
Example 3: Discussion with Police
Instead of taking a nap, the Witness sees the events unfold, and then 5 minutes later, the police arrive.
The Witness then gives the same statement as in the previous scenario, as the police officer record her statement with body-cam footage.
Does the Present Sense Impression exception apply now?
Well, this is when things go gray and where most of the arguments will be made.
Under this scenario, the answer hinges on whether the facts indicate spontaneity. What did the Witness do (if anything) during that 5-minute window? Did she have enough time to consider the effects of a statement?
Since we're dealing with a gray area, you'll also need to factor in the judge and the local precedent in your jurisdiction.
If the judge doesn't buy your argument, then you may have to fall back on another hearsay exception.
The Present Sense Impression exception is focused on the theme of spontaneity. The further the facts stray from spontaneity, the more difficult the argument becomes.
Therefore, prior to trial, you'll want to get as much evidence as possible to support spontaneity (assuming that you're trying to apply the Present Sense Impression exception).
There's plenty more to learn about hearsay and its exceptions! We have more content to help simplify hearsay as a whole, which you can find on Law Venture's blog.