§ 10.10 PRESENT SENSE IMPRESSIONS OR CONTEMPORANEOUS STATEMENTS

• Jurisdiction: United States

§ 10.10 PRESENT SENSE IMPRESSIONS OR CONTEMPORANEOUS STATEMENTS

[1] THE DOCTRINE

The spontaneity of the statement is the basic rationale for the excited utterance exception. The statement's contemporaneity can also serve as proof of the statement's trustworthiness. Misrecollection is one of the most common causes of testimonial error, and the fact that the declarant makes the statement at roughly the same time the event occurs is some evidence of the statement's reliability. A growing number of courts accept the contemporaneous statement or present sense impression doctrine as a separate hearsay exception. The federal courts joined ranks with those courts when Congress enacted Federal Rule of Evidence 803(1): "The following [is] not excluded by the rule against hearsay . . .: A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it."

The present sense impression doctrine differs from the excited utterance doctrine in three important respects. First, the timing requirement is more rigorous under the present sense impression doctrine. To qualify as a contemporaneous statement, the declaration must usually be made within minutes after the event. If the declarant is still excited or in pain, an excited utterance can be made hours after the event. Second, the event need not be startling to prompt a present sense impression statement. The guarantee of trustworthiness is contemporaneity rather than nervous spontaneity. Finally, in some jurisdictions such as California, contemporaneous statements are limited to statements describing or explaining the declarant's own conduct. A declarant may make an excited utterance about any startling, external event; but in a minority of jurisdictions, a present sense impression must relate to the declarant's own conduct. In these jurisdictions, the statement must describe, explain, or qualify the declarant's acts.

[2] ELEMENTS OF THE FOUNDATION

The foundation for present sense impression includes these elements:

1. An event occurred. As in the case of excited utterances, there is a split of authority whether the proponent must present independent, corroborating evidence that the event occurred.
2. The declarant had personal knowledge of the event.
3. The declarant made the statement during or very shortly after the event. While an acceptable delay under Rule 803(2) is often measured in terms of hours, under Rule 803(1) the delay is usually measured in terms of

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