The Need to Resurrect the Present Sense Impression Hearsay Exception: A Relapse in Hearsay Policy
37 Pages Posted: 13 Jun 2008
This article deals with the present sense impression hearsay exception, codified in Federal Rule of Evidence 803(1). The article demonstrates that the courts have severely cramped the scope of Rule 803(1) by adding restrictive judicial glosses to the statute. The article argues that for the most part, these glosses are unsound. The article calls on the courts to abandon these restrictions and construe Rule 803(1) far more liberally in the future. As the article explains, the dispute over the scope of Rule 803(1) raises fundamental questions about the direction of hearsay policy.
The early common-law courts were obsessed with the prevention of perjury. Consequently, they chose to render interested persons incompetent as witnesses; the courts feared that the witness's interest in the outcome of the case would lead the witness to succumb to the temptation to commit perjury. Likewise, the courts fixated on the prevention of perjury in formulating hearsay law. On the one hand, they eagerly accepted hearsay statements such as excited utterances where the declarant was excited and presumably sincere. On the other hand, absent an assurance of sincerity, the courts were hesitant to admit testimony about out-of-court statements. In particular, at common law the vast majority of jurisdictions excluded present sense impressions even though the circumstances eliminated any serious doubts about the quality of the declarant's memory.
As the years passed, though, legal psychologists mounted a sharp critique of common-law hearsay policy. Their research demonstrated that the same emotions which assured sincerity often distorted memory and perception. They also found that the fallibility of memory is probably the most common cause of testimonial error. Given these findings, psychologists challenged the routine admission of excited utterances and urged the courts to be more receptive to present sense impressions whose timing moots concerns about memory.
The drafters of the Federal Rules of Evidence were sympathetic with the critics of common-law hearsay policy. In their Note accompanying Rule 803(1), they approvingly cited many of the critics of that policy. More to the point, although the present sense impression doctrine was a distinct minority view at common law, the drafters not only adopted that exception but made it the very first exception enumerated in Rule 803. Thus, the enactment of the Rules in 1975 could and should have marked a turning point in hearsay policy.
However, as Part II of this article demonstrates, since the Rules' enactment many courts have relapsed to the common-law obsession with the prevention of perjury. Immediately after the enactment of the Rules, under Rule 803(2) on excited utterances and 803(5) governing past recollection recorded, the courts admitted statements despite significant questions about the declarant's memory. More recently, the courts have added six restrictive glosses to the scope of Rule 803(1). Most of these glosses have no grounding in the statutory text, and they are largely driven by the courts' endeavor to eliminate any risk that the declarant spoke insincerely.
The thesis of this article is that the courts should reverse this trend by abandoning most of these restrictions. Part III of the article critically evaluates all six of the glosses and concludes that only one can withstand scrutiny. This part contends that the other five both misread the statute and represent bad hearsay policy.
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