Evidence - present sense and common sense: stretching the 803(1) hearsay exception to its limits.

AuthorLynett, Christopher
PositionCase note

In law school evidence classes across the United States, second year students grapple with the rules governing hearsay exceptions: business records, statements made for the purpose of medical treatment, statements made by party opponents, etc. (1) although the present sense impression exception is one of the rules least feared by law students, the United states Court of appeals for the Ninth Circuit confronted a unique situation that would be prime for any law school exam in United States v. Hieng (2) In a mere four sentences, a majority of the three-judge panel held that hearsay calculations tallying the number of marijuana plants officers destroyed, which totaled over 1000 plants, qualified under the present sense impression exception. (3) However, a vehement concurrence argued the exception had been stretched to its breaking point. (4) this comment will discuss the different approaches to the present sense impression exception used by the majority and concurring opinions, and then argue that courts should avoid such extreme rule bending by keeping the present sense impression out of the past. (5)

On August 28, 2007, agents from the Fresno County Sheriff's Department discovered a large marijuana growing operation at a residence leased by the defendant, Orm Hieng. (6) The marijuana plants were planted in fifteen to twenty rows at a vineyard on the premises, as well as within the home. (7) After the defendant and another individual were taken into custody, the officers simultaneously tallied and destroyed the plants. (8) officers went down each row and either cut or ripped the plants from the ground, keeping a mental tally of the plants they had eradicated. (9) once an entire row was eliminated, each officer would report the number of plants removed to Fresno County Sherriff's Department Detective Jensen, who then recorded the figures. (10)

Based on the evidence seized from his home and surrounding property, Orm Hieng was charged with intentionally conspiring to manufacture a controlled substance with the intent to distribute in violation of 21 U.S.C. [section] 841(a). (11) During trial, the investigating detectives could not recall the exact number of plants they individually counted and destroyed, but testified that they gave their total to Detective Jensen, who then recorded the tally. (12) Detective Jensen testified he kept an accurate count of the plants destroyed based upon the officers' statements and put the final tally of 1109 marijuana bushes in his report. (13) Hieng was convicted by a jury and sentenced to ten years in prison, the minimum sentence required by the statute. (14) Hieng subsequently appealed his conviction to the United States Court of Appeals for the Ninth Circuit. (15)

Many modern legal academics credit the legal scholar James Bradley Thayer for developing the present sense impression exception to the rule against hearsay in the Nineteenth Century. (16) However, prior to the adoption of the Federal Rules of Evidence in 1975, relatively few jurisdictions recognized the present sense impression exception. (17) In one early case, Texas acknowledged such an exception in Houston Oxygen Co. v. Davis, (18) where the Commission of Appeals held that statements made by passengers about a passing vehicle were admissible as a present sense impression because the report was made at the moment of observation, there was no time of calculation or misstatement, and was made to a passenger who also viewed the incident. (19) Another early case decided in Florida, Tampa Electric Co. v. Getrost, (20) held hearsay testimony that arose from a phone call made just prior to a man being killed in a workplace was properly admitted as a present sense impression. (21) The court specifically noted "there was no occasion for [the statement] to have resulted from reflection or premeditation." (22) However, the Supreme Court narrowly defined what counts as a "present" impression in Shepard v. United States, (23) where the Court held statements that "faced backward" about a past event do not fall into the hearsay exception. (24)

Notwithstanding early hesitations, forty-four states have adopted the present sense impression exception into their rules of evidence. (25) The key premise behind the exception is the close temporal link between the time of the observation and the time of the statement, ensuring the statement has substantial contemporaneity to the event described. (26) Despite the focus on chronological proximity, courts have found "substantial contemporaneity" when the statement occurred between ten and twenty-three minutes after the described event. (27) Moreover, how a court defines an "event" can expand the scope of the rule even further by tolling the clock, creating a wider window through which hearsay statements can qualify under the exception. (28) In addition to substantial contemporaneity, courts must also consider Crawford v. Washington, (29) which folded the Confrontation Clause into hearsay analysis, requiring a determination of whether a statement is testimonial or non-testimonial. (30) Beyond the standard hearsay exceptions, Federal Rule 807 also allows for a residual exception where a trial judge makes a finding that the statement is trustworthy, is relevant to a material fact, is the most probative evidence, and admitting such a statement "serve[s] the ... interests of justice." (31)

The temporal limits of the present sense impression exception ensure that there is no time for fabrication, calculation, or memory loss by the declarant, thereby bolstering the reliability of the statement. (32) However, temporal limits have not always been strictly enforced as accommodations have been made for lapses reaching ten, fourteen, and eighteen minutes. (33) Various courts and commentators have noted that statements requiring an "intermediate step" likely fall outside the scope of 803(1). (34) Moreover, when statements are made for a "particular reason," there is a question of whether the statements are made contemporaneously, or are "calculated interpretations of events. " (35)

In Hieng, the United States Court of Appeals for the Ninth Circuit began its analysis by noting that Detective Jensen's testimony involved three levels of hearsay: first, the other officers' statements to Jenson communicating the number of plants removed; second, Jensen's recording of those numbers; and third, his official report. (36) The majority opinion outlined how the statements made to Jensen communicating the number of plants removed qualified under the present sense impression exception to the rule against hearsay. (37) Each report to Jensen qualified as an account of a recent perception because the officers had eradicated a row of plants immediately prior to the report. (38) The majority conceded that the counts took "some minutes;" however, the observations were close enough in time to mitigate any possible risk of memory loss. (39)

In a stinging concurrence, Judge Berzon concluded that the present sense impression was not applicable to the first level of hearsay--the reports to Jensen. (40) Judge Berzon discussed how the lapse in time between the start of the counts and the final reporting was significant enough to raise issues of memory and deception. (41) She further determined that the mental processes required to collect, destroy, and count the plants constituted an intermediate step between perception and reporting. (42) Judge Berzon then concluded that the "residual exception" codified under Rule 807 was the most applicable rule to resolve the hearsay issue. (43) She noted that the use of the residual exception would mitigate the need for a Crawford evaluation of whether the statements were testimonial because that exception requires the "most probative evidence," which would be the officer's own reports as to their counts. (44) Despite the notice requirement of Rule 807, Judge Berzon discussed how defense counsel was properly put on notice of the hearsay as the prosecution tried numerous times to introduce the plant counts before they were finally admitted. (45)

In Hieng, the Court of Appeals applied a standard that stretches the present sense impression exception beyond its breaking point--an issue correctly articulated in the concurrence by Judge Berzon. (46) From its origin with James Bradley Thayer, the "temporal congruence" linking the statement to the event has been the lynchpin of the exception. (47) Despite disagreement among academics over whether strict or...

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