Hearsay Exceptions—Present Sense Impressions and Excited ...

• Chapter 40 • Hearsay Exceptions—P.S. Impressions and Excited Utterances • 491 •
Present sense impressions and excited utterances arise frequently in litigation.
When a crime or accident occurs, the victim and eyewitnesses make
numerous statements about the event. Someone may call 911 to report the
trauma, others may exclaim to one another about what they see. Victims
and bystanders also talk about the incident to police, rescuers, and family
members. Parties often offer these statements in court as present sense impressions
or excited utterances. Witnesses who did not perceive the event
may testify about what the victims and bystanders said: “She shouted that
a man in a red shirt was pulling out a gun.” “I heard him cry that the
stairway was collapsing and crushing a young girl.”
The Rules of Evidence permit parties to introduce present sense impressions
and excited utterances because these statements have special indicia of
reliability; as a class, each type of statement is more reliable than the usual
out-of-court statement. 1 A person who describes an event as it unfolds
before her lacks time to formulate a lie; the words match the events one by
one. A present sense impression, therefore, is likely to offer the speaker’s
accurate report of what he saw.
Similarly, a person responding to a startling event has little opportunity to
concoct falsehoods. In the words of the Advisory Committee, the “condition
of excitement…temporarily stills the capacity for reflection and
produces utterances free of conscious fabrication.” 2
Although present sense impressions and excited utterances carry these indicia
of reliability, we know from everyday experience that these statements
are not always reliable. A wrongdoer confronted with evidence of her guilt
may be startled, but immediately protest “It wasn’t me!” Under at least
some circumstances, stress generates spontaneous reactions that are false
rather than true. But the rationale behind hearsay exceptions does not
assume that certain kinds of statements are always reliable, only that they
are more reliable than most other hearsay statements, so that on balance it
is better for the jurors to hear the statements than not to hear them. The
jurors are free to reject the information if the circumstances persuade them
that the declarant was lying or mistaken.
1 Remember that in Chapter 38 we discussed two rationales for hearsay exceptions: reliability
and necessity. Present sense impressions and excited utterances rest particularly on the reliability
rationale.
2 Fed. R. Evid. 803(2) advisory committee’s note.