Present Sense Impressions Cannot Live in the Past

27 Pages Posted: 18 Nov 2011  

Douglas D. McFarland

Mitchell|Hamline School of Law

Date Written: January 1, 2001

Abstract

While earlier commentators, codes, and cases hinted or suggested that the statement of a witness describing an event while perceiving it should be admissible over a hearsay objection, the present sense impression was not generally recognized as an exception to the hearsay rule until the enactment of the Federal Rules of Evidence in 1975. Since by definition a present sense impression is uttered spontaneously while the declarant is perceiving the subject of the declaration, the guarantees of trustworthiness of the exception are agreed to be two: no possibility of memory loss and little or no danger of insincerity. These guarantees are based on the declarant’s making the statement while “perceiving the event or condition.” Unfortunately, many courts have seized on the “immediately thereafter” language of the rule to stretch the time allowed between the event and the statement. Since a time lapse destroys both of the exception’s guarantees of trustworthiness, this article proposes amending the federal rule – and copying state codes and rules – to delete the last three words, “or immediately thereafter.”

Keywords: Present sense impression, contemporaneity, immediately thereafter, declarant, hearsay, Federal Rules of Evidence in 1975, hearsay exception

Suggested Citation

McFarland, Douglas D., Present Sense Impressions Cannot Live in the Past (January 1, 2001). Florida State University Law Review, Vol. 28, p. 907, 2001. Available at SSRN: https://ssrn.com/abstract=1955310

Douglas D. McFarland (Contact Author)

Mitchell|Hamline School of Law ( email )

875 Summit Ave.
Saint Paul, MN 55105
United States

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