Hearsay Exception #1 – The Present Sense Impression

The first exception to the hearsay rule, Rule 803(1) of the Texas Rules of Evidence, is the present sense impression – a statement describing or explaining an event made while the declarant was perceiving the event or immediately thereafter.  A simple rule requiring little explanation or discussion, this exception is based upon the premise that the contemporaneity of an event and the declaration that follows ensures reliability of the statement.  The reliability rationale which underlies the present sense impression exception is that:

  1. the statement is safe from any defective memory errors because of its contemporaneous nature;
  2. there is little or no time for a calculated misstatement; and
  3. the statement will usually be made to another (the witness who reports it) who would have an equal opportunity to observe and therefore check a misstatement.

One court has characterized the rule as “predicated on the notion that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes:”

It is instinctive, rather than deliberate.  If the declarant has had time to reflect upon the event and the conditions he observed, this lack of contemporaneity diminishes the reliability of the statements and renders them inadmissible under the rule.  Once reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious thinking-it-through statements enter the picture, the present sense impression exception no longer allows their admission.  Thinking about it destroys the unreflective nature required of a present sense impression (Fisher v. State, 252 S.W.3d 375, Tex. Crim. App. 2008).

Understanding the rationale for the rule will help the practitioner understand whether a particular statement falls under this exception. While the declarant need not be in an excited or agitated state, as with the exited utterance exception (which will be discussed in the next post), the declarant’s statement should evince a stream-of-consciousness or unguarded quality that would not be present in a declarant’s later statement regarding the very same observation or event.

The present sense impression is to hearsay statements what the play-by-play announcer is to broadcast sports.  When Frank Gifford said, “Thiesmann’s in a lot of trouble,” no one had yet seen the replay which later became NFL’s Most Shocking Moment in History.  Yet Gifford’s present sense impression was dead-on accurate, reliable and worthy of repeating, even in a court of law.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas.

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