The Case for the Present Sense Impression Hearsay Exception: The Relevance of the Original Version of Federal Rule of Evidence 8-03 to Judge Posner’s Criticism of the Exception
Brandeis University Law Journal (Forthcoming)
39 Pages Posted: 9 Dec 2015
Date Written: December 4, 2015
It has been said that the hearsay doctrine is the “most characteristic” exclusionary rule in Anglo-American Evidence law. The hearsay rule is a preferential doctrine, generally favoring live courtroom testimony rather than testimony about the declarant’s out-of-court statement. For various historical reasons, when the early English courts formulated the doctrine, they were primarily concerned about the sincerity of the out-of-court statement; they believed that ordinarily the opponent should have the opportunity to cross-examine the declarant to expose latent weaknesses in sincerity. Given that belief, they tended to admit hearsay only when there was a strong inference that the out-of-court statement was sincere and truthful. By way of example, they admitted startled utterances because they assumed that the declarant’s nervous excitement would “still” the declarant’s ability to reflect on his or her self-interest.
Over the decades many commentators, including psychologists, have sharply criticized the common-law stress on the sincerity factor. There is a large body of psychological research indicating that shock can grossly distort perception. Thus, in the case of excited utterances, we may lose more in inaccurate perception than we gain in enhanced sincerity. Some commentators contend that excited utterances are “[t]he most unreliable type of evidence admitted under [the recognized] hearsay exceptions . . . .”
Moreover, the same commentators have argued that misrecollection – not insincerity – is the primary cause of testimonial error at trial. While criticizing the rationale for the excited utterance exception, these commentators champion the recognition of the present sense impression exception. If the declarant makes the statement while or shortly after observing a fact or event, there is little or no risk of misrecollection. This doctrine has been characterized as an “ideal” hearsay exception. This argument persuaded the drafters of the Federal Rules of Evidence. Although the exception was a distinct minority view at common law, the drafters not only codified the exception; they also made the docrtrine the very first provision in Rule 803 enumerating most of the hearsay exceptions.
Nevertheless, the common law’s inordinate stress on sincerity is so ingrained that excessive concern about that factor often resurfaces. In his concurrence in a recent case, United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), one of the most respected American jurists, Judge Richard Posner, expressed “profound doubt” whether it is justifiable to recognize the present sense impression exception. While he also criticized the excited utterance exception, he devoted most of his discussion to present sense impressions. He pointed to psychological research finding that most lies are spontaneous and that “less than one second is required to fabricate a lie.” He suggested abandoning reliance on specific hearsay exceptions and instead employing the general criteria set out in Rule 807, the residual hearsay exception.
The thesis of the enclosed article is that while Judge Posner’s criticism of the excited utterance exception is warranted, his attack on the present sense impression exception is misguided. The first part of the article describes the traditional justifications for such exceptions as excited utterance and present sense impression. The second part details Judge Posner’s concurrence in Boyce. The third part is evaluative. Initially, the third part explains why it would be a mistake to rely on the current wording of Rule 807. Unlike the original draft of Federal Rule 8-03, Rule 807 misses the mark because it does not directly address the essential preferential question of whether the reliability of the out-of-court statement is likely to be superior to that of the declarant’s trial testimony. Analyzing that question, the third part then argues that in terms of the testimonial qualities of perception, memory, and sincerity, a present sense impression is frequently more reliable than the declarant’s potential trial testimony.
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