§ 33.19 Key Points

• Jurisdiction: United States

§ 33.19 Key Points

There is no need to look for an exception until you first determine that the statement is in fact hearsay. Because there is sometimes an overlap between exceptions, a statement may fall within more than one. Moreover, the residual exception (Rule 807) is always a possibility, but it requires notice.

Rationale. Hearsay exceptions are based on some circumstantial guarantee of trustworthiness that is thought to warrant admissibility notwithstanding the lack of cross-examination, oath, and personal appearance of the declarant. Recall the hearsay dangers: perception, memory, narration, and sincerity risks. Each exception is thought to reduce one or more of these risks. Most exceptions are also supported by a necessity or practical convenience argument. The necessity rationale is clearly present in the exceptions specified in Rule 804, because the unavailability of the declarant is required as a condition of admissibility. Nevertheless, many Rule 803 exceptions may be supported by comparable arguments (e.g., a public official will not remember preparing many records).

Firsthand knowledge rule. Several of the Rule 803 exceptions specify firsthand knowledge on the part of the declarant. For other exceptions, the rule is silent. Nevertheless, firsthand knowledge is a requirement for all exceptions.

Opinion rule. The application of the opinion rule to hearsay statements is discussed with Rule 701.¹⁹⁶ In a nutshell, it generally makes no sense to apply the opinion rule to out-of-court statements.

Present Sense Impressions: FRE 803(1)

The reliability of present sense impressions rests upon the declarant's lack of time to fabricate, which reduces the risk of insincerity. Rule 803(1) requires: (1) a statement describing or explaining an event or condition, (2) about which the declarant had firsthand knowledge, and (3) made at the time the declarant was perceiving the event (or condition) or immediately thereafter.

Excited Utterances: FRE 803(2)

The reliability of excited utterances is based upon the declarant's lack of capacity to fabricate. Rule 803(2) requires: (1) a startling event; (2) a statement relating to that event; (3) made by a declarant with firsthand knowledge; and (4) made while the declarant was under the stress of the excitement caused by the event.

There is no explicit time element for the rule. The statement may be admissible even if not contemporaneous with its exciting cause. Statements made after a substantial time has elapsed may be admissible so long as the declarant remained under the influence of the exciting event. A statement made in response to a question may fit within the exception if made under the stress of the startling event.

Present sense impressions distinguished. Although present sense impressions and excited utterances often overlap, there are significant differences between the two exceptions. The reliability of present sense impressions rests upon the declarant's lack of time to fabricate. The reliability of excited utterances is based upon the declarant's lack of capacity to fabricate. This difference in theory explains the disparate requirements for each exception. For example, a startling event is required for the excited utterance exception but not for the present sense impression exception. In addition, the time requirement is more stringent for present sense impressions than for excited utterances. The subject matter requirement also differs. A present sense impression must describe or explain the event. The subject matter of an excited utterance is not so circumscribed—statements "relating to a startling event" are admissible.

Present Mental Condition: FRE 803(3)

Rationale. There are no memory problems because the statement is made contemporaneously with the mental condition, and there is little risk of misperceiving one's own thoughts. Moreover, the statement is often more reliable than...