Hearsay Exceptions: Rules 803(1) & 803(2) PDF

**Class 18** Unrestricted hearsay Rule 803(1) Present Sense Impression The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 1. Present Sense Impression. A statement describing or explaining an event or condition, made...

**Class 18** Unrestricted hearsay Rule 803(1) Present Sense Impression The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 1. Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. 2. Excitement utterance A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. 1. US v. Mejia-Valez In **United States v. Mejia-Velez**, Wilson Alejandro Mejia-Velez was convicted of murdering Manuel de Dios Unanue for payment. During the trial, the court allowed audio recordings of two emergency **911 calls** made shortly after the shooting by witnesses **John Gajewski** and **Jose Aguera**. These recordings were admitted as evidence under two exceptions to the **hearsay rule**: the **"present sense impression"** and the **"excited utterance"** exceptions, despite objections from the defense. The **present sense impression** exception, under **Rule 803(1)**, allows statements made while an event is happening or immediately afterward, as such statements are considered **reliable** due to the lack of time for **reflection or fabrication**. In this case, the 911 calls met this standard because the witnesses described the **shooting**, **location**, and **assailant** immediately following the event. The brief lapse between the shooting and the calls minimized any chance of fabrication or misremembering. Even though **Gajewski's second call** was made 16 minutes later, the court still admitted it, noting that similar cases have allowed slightly delayed statements that remain **closely tied to the event**. The **excited utterance** exception, under **Rule 803(2)**, allows statements made in response to a **startling event** while the speaker is still under the stress of excitement. Since both witnesses were reacting directly to the **shock of the shooting**, their **emotional state** reduced the likelihood of fabrication. The **panic and urgency** in their voices further confirmed they were genuinely under the event's influence. The court concluded that the recordings met both hearsay exceptions, providing **reliable and spontaneous** accounts of the incident and permitting them as evidence. 2. Miller v. Keating 3. Miller v. Crown Amusement 4. US v. Boyce **Time Lapse**: The primary difference is timing. Rule 803(1) allows statements made immediately after an event, termed \"substantial contemporaneity,\" though slight delays (up to 23 minutes in some cases) may still be admissible. Criticism exists, as people can lie even spontaneously, questioning whether such delays ensure truthfulness. The Colorado rule restricts timing more strictly than the federal rule, potentially enhancing reliability but limiting flexibility. **Event Startlingness**: Rule 803(2) requires a \"startling\" event to trigger the exception, whereas Rule 803(1) does not. Judges rely on common sense to determine if an event qualifies as startling. **Mental State Requirement**: Rule 803(2) mandates that the declarant be \"under the stress of excitement,\" while Rule 803(1) has no such requirement. Courts consider the nature of the event, time lapse, statement content, declarant\'s age, motive, and demeanor to assess excitement. **Scope of Statements**: Rule 803(1) is limited to statements describing or explaining an event, whereas Rule 803(2) allows statements that broadly relate to a startling event, encompassing a wider range of content. **Corroboration Not Required**: Neither exception requires corroboration for the events described, allowing statements to stand even if they are the sole evidence. **Sensory Perception**: Rule 803(1) covers events perceived by any sense, not just sight, as seen in cases admitting statements about tastes and sounds. **Requirement of "Non-Calculated Narration"**: The Seventh Circuit requires that present sense impressions be \"without calculated narration\" to ensure that statements are spontaneous, not deliberate reflections. **Modern Applications**: Courts have admitted emails under Rule 803(1) if they meet the timing and perception requirements. **Double Hearsay Considerations**: In *Crown Amusements*, no objection was raised to a witness reporting a brand name (Crown Amusements) seen on a truck, possibly because it was viewed as straightforward observation, avoiding \"double hearsay.\" **Use of Rule 803(1) in *Crown Amusements***: Rule 803(1) was invoked over Rule 803(2) likely because the timing allowed for substantial contemporaneity, as the caller's statement was close enough to the incident, bypassing the need to prove excitement under Rule 803(2). Recorded Recollection 5. US v. Hernandez R: Recorded recollection compiled through the efforts of more than one witness is admissible under Rule 803(5). In *United States v. Hernandez*, Lazaro Alexander Hernandez was convicted of firearm possession by a prohibited person. He appealed, arguing that the district court improperly admitted hearsay evidence, specifically the serial number of the firearm, under the **recorded recollection exception** (Federal Rule of Evidence 803(5)). The serial number was key evidence linking him to the firearm he was charged with possessing, a Beretta 9mm, which had been stolen from the home of Shane Crofts, the father of Hernandez\'s nephew. The facts surrounding the serial number involved a chain of multiple witnesses. After Hernandez asked his friends Kirk and Tracy Allen to store a gun for him, Tracy later mentioned this to Hernandez's sister, Renee. Renee asked Tracy for the gun\'s serial number, but Tracy initially declined to share it directly. Instead, Tracy read the serial number from the gun and asked another friend, Jacqueline Grant, to record it. Later, when Renee followed up, Tracy no longer had the gun in her possession, so she called Jacqueline, who read the recorded serial number back to Tracy. Tracy then relayed it to Renee, who wrote it down. At trial, the recorded serial number provided critical evidence tying Hernandez to the stolen firearm. Tracy Allen testified that she accurately read the serial number to Jacqueline Grant, and Jacqueline confirmed that she recorded it correctly. Tracy later confirmed that Jacqueline read it back to her accurately, and Renee Hernandez testified to accurately recording it when Tracy relayed it to her. Each person in the chain confirmed the accuracy of their respective steps, forming a collaborative effort to reconstruct the serial number. The court examined whether this chain of information-sharing met the requirements of Rule 803(5), which permits **recorded recollections** when a statement or record was made or adopted by a witness when the matter was fresh in their memory. Hernandez contended that Rule 803(5) was intended for statements created or adopted by a single individual, not a chain of people as seen in his case. However, the court found that Rule 803(5) allows for multi-party recorded recollections as long as each participant in the chain confirms the accuracy of their part in the process. This interpretation aligns with judicial precedent and treatise support, which acknowledge that a multi-party recollection can meet the rule's trustworthiness requirements if each participant testifies to the accuracy of their contribution. The court drew from **McCormick on Evidence** and Senate committee notes, which suggest that Rule 803(5) accommodates situations where information is reported along a chain of people, as long as each step has been verified. Case law, including *United States v. Schoenborn* and *United States v. Booz*, supports the admission of collaborative records when multiple participants are involved and verify their roles. In this case, the district court's admission of the serial number was seen as justified. Each person in the sequence confirmed that they accurately handled and relayed the information. This chain of testimonies provided **circumstantial guarantees of trustworthiness**, which are essential to Rule 803(5) exceptions. Since Tracy Allen, Jacqueline Grant, and Renee Hernandez all testified to the accuracy of their respective actions, the court held that this collaborative recording of the serial number met Rule 803(5)'s reliability threshold. The appellate court ultimately concluded that the district court did not abuse its discretion in admitting the serial number. This decision reinforced the notion that recorded recollections Notes and Questions This section clarifies key distinctions between **Rule 803(5)** (recorded recollections) and other hearsay exceptions, especially **Rule 803(1)** (present sense impressions), and addresses foundational questions about the application and rationale of Rule 803(5): 1. **Distinction Between Refreshing Memory and Recorded Recollection**: A witness may use anything to refresh memory (not subject to the hearsay rule), but Rule 803(5) applies only to writings and requires foundational criteria. When memory is refreshed, the witness cannot read directly from the document since the testimony should be based on present memory. Conversely, Rule 803(5) allows the document itself to be read into evidence because it serves as evidence of the memory. 2. **"Freshness" Requirement**: Rule 803(5) does not impose strict contemporaneity for a record's freshness. Courts have accepted delays from several months to even three years as sufficiently fresh, as long as circumstances and the writing\'s specificity indicate accurate memory. Factors like drug or alcohol influence, however, may undermine freshness. 3. **Trustworthiness and Memory Impairment**: Although the Advisory Committee notes that recorded recollections are inherently trustworthy if made when the memory was fresh, Rule 803(5) still requires that the witness no longer has sufficient memory of the event. This requirement aims to prevent litigants from using statements intentionally prepared for litigation by attorneys or others with potential bias. 4. **Reading the Record Versus Admitting as Exhibit**: Rule 803(5) specifies that the recorded recollection should be read into evidence, not admitted as an exhibit, to avoid undue influence on the fact-finder. This approach contrasts with Delaware's discretionary rule, which allows flexibility in handling such documents. 5. **Audio-Recorded Recollections**: Rule 803(5) encompasses audio recordings as recorded recollections, allowing these to be played for the jury. The Eighth Circuit has approved this practice, reasoning that audio recordings can function similarly to written records in preserving fresh memories. 6. **Requirement for "Best Evidence"**: Rule 803(5) is unique in requiring that the recorded recollection only be used if the witness cannot fully testify from present memory. The Advisory Committee chose to place this rule in Rule 803 instead of Rule 804 (which covers unavailability) because Rule 803(5) applies to a specific kind of limited memory loss rather than broad unavailability. 7. **Comparing Rule 803(1) and Rule 803(5)**: Unlike Rule 803(5), Rule 803(1) (present sense impressions) requires immediacy in the timing of the record and does not require that the declarant testify. Furthermore, Rule 803(1) permits statements even if the declarant has a full memory of the event, and records can be admitted as exhibits under this rule, whereas Rule 803(5) requires impaired memory and only allows the record to be read, not admitted as an exhibit.