§ 33.04 Present Sense Impressions: FRE 803(1)

• Jurisdiction: United States

§ 33.04 Present Sense Impressions: FRE 803(1)

Rationale. The reliability of present sense impressions rests on the declarant's lack of time to fabricate, which reduces the risk of insincerity.¹⁰ Prior to the Federal Rules, this was not a well-recognized exception. In one of the few pre-Rules cases, Houston Oxygen Co. v. Davis,¹¹ the court held that the statement was "sufficiently spontaneous to save it from the suspicion of being manufactured evidence. There was no time for a calculated statement." In addition, the time requirement—substantial contemporaneity—reduces problems associated with defects in the declarant's ability to remember the event.

Rule 803(1) requires:¹² (1) a statement describing or explaining an event or condition, (2) about which the declarant had firsthand knowledge,¹³ and (3) made while or immediately after the declarant perceived the event or condition.¹⁴ The trial court decides admissibility under Rule 104(a).

[A] Time Requirement

The statement must have been made while the declarant perceived the event or condition, or immediately after. In other words, the statement must be nearly contemporaneous with the perception of the event.¹⁵ As the federal drafters noted, "With respect to the time element, Exception (1) recognizes that in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable."¹⁶ Typically, we are talking "minutes" here.

[B] Subject Matter Requirement

Under Rule 803(1), the statement must describe or explain an event or condition. This requirement follows from the theory underlying the exception—lack of time to fabricate. Statements beyond descriptions or explanations indicate that the declarant has had sufficient time to think about the event.¹⁷

[C] Verification

One of the guarantees of trustworthiness upon which the present sense impression exception was originally thought to be based was verification, i.e., the person to whom the statement was made (the testifying witness) would be in a position to verify the statement. Yet if the witness heard the statement but did not perceive the event, this safeguard is absent—e.g., a 911 telephone conversation, unless the 911 operator can hear the event (e.g., fight) in the background. There is no verification requirement in Rule 803(1).

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Notes:

^[10] Fed. R. Evid. 803 advisory committee's note ("The underlying theory of Exception (1) is that substantial contemporaneity of event and statement negative the likelihood of...