1

Introduction to hearsay exceptions

Conventional wisdom (Wigmore):

For each exception, there is a justification based on

trustworthiness and necessity.

2

My standard questions:

1. What’s the justification for this exception?

2. What does it add to the other exceptions?

3. If the case is not a federal rules case:

How would this case be decided under the Federal Rules of Evidence?

4. If the cognate California rule is assigned:

How does the California rule differ from the federal rule?

3

In answering the hypothetical questions that follow,

please apply the hearsay exceptions in the Federal

Rules of Evidence.

4

Example. A law professor was driving down a ramp

leading to the freeway. He slowed down and was rear-

ended by a tractor-trailer. The other driver got out and yelled

“You idiot, you stopped right in the middle of the highway!”

Offered to show the professor’s negligence, his statement

would be --

Not h

ears

ay

Hea

rsay

, but a

dmis

sible

Inad

mis

sible

7% 7%

86%

1. Not hearsay

2. Hearsay, but admissible

3. Inadmissible

5

Suppose that immediately after the collision the truck driver

said in a serene if condescending tone, “Professor, you

must have been cogitating about a profound issue, because

you came to a rather abrupt halt.” Offered to show the

professor’s negligence, his statement would be --

Not h

ears

ay

Hea

rsay

, but a

...

Inad

mis

sible

0%

47%53%

1. Not hearsay

2. Hearsay, but admissible

3. Inadmissible

6

Suppose that the truck driver waited until a half hour after

the accident and then said serenely, “Professor, you came to

an abrupt halt.” Offered to show negligence, his statement

would be --

Not h

ears

ay

Hea

rsay

, but a

...

Inad

mis

sible

3%

97%

0%

1. Not hearsay

2. Hearsay, but admissible

3. Inadmissible

7

Suppose that the truck driver had been severely injured in

the accident. Half an hour after the accident, still writhing in

pain, he excitedly told a paramedic, “Oh my God, that guy

stopped all of a sudden in the middle of the road!” Offered to

show the other driver’s negligence, his statement would be

--

Not h

ears

ay

Hea

rsay

, but a

...

Inad

mis

sible

0%

24%

76%

1. Not hearsay

2. Hearsay, but admissible

3. Inadmissible

9

Comparison of foundation facts

There is no excitement requirement for a present sense

impression and no immediacy requirement for an

excited utterance.

10

Why is the excited utterance considered trustworthy?

Wigmore quote, p. 222.

11

Can it be argued that excited utterances are not

trustworthy?

12

Hearsay dangers involved with excited utterances

Sincerity danger – probably reduced

Perception and judgment dangers –probably

increased.

See Hutchins & Schlesinger excerpt, pp. 223-24.

13

Adv. Comm. Note to FRE 803(2):

“While the theory of Exception (2) has been criticized on

the ground that excitement impairs accuracy of

observation as well as eliminating conscious fabrication,

Hutchins and Slesinger . . . 29 Colum. L. Rev. 432

(1928), it finds support in cases without number.”

14

What is the trustworthiness justification for the present

sense impression exception?

15

See Hutchins & Schlesinger (1928) on p. 284, advocating

the recognition of such an exception:

“With emotion absent, speed present, and the

person who heard the declaration on hand to

be cross-examined, we appear to have an ideal

exception to the hearsay rule.”

16

Hypo. A law professor finds that someone parked in his

reserved parking space. He flies into a rage. . An hour later,

while still under the stress of excitement, he exclaims: “Oh

my God, somebody took my parking spot!” His statement is

offered in court to prove its truth. It is --

Adm

issi

ble a

s a

prese.

.

Adm

issi

ble a

s an

exc

i...

Both

Nei

ther

3%

53%

13%

31%

1. Admissible as a present

sense impression

2. Admissible as an excited

utterance

3. Both

4. Neither

17

803(2) foundation facts

--Startling event

--Related statement

--Excitement

18

Truck Ins. Exchange v. Michling, p. 285

Supreme Court of Texas, 1963

Why did the Texas court hold that the evidence was not

admissible?

19

In the Michling case, one of the declarant’s statements was

“my head is hurting me terribly.” Under the Federal Rules of

Evidence, this statement would have been --

Adm

issi

ble a

s a

pres...

Inad

mis

sible

56%44%

1. Admissible as a present

sense impression

2. Inadmissible

20

The declarant also said “I hit my head on the bulldozer.”

Assume he seemed excited, but there was no independent

evidence that he hit his head on the bulldozer. Applying the

federal rules to the facts of Michling, this “bulldozer”

statement would be --

Adm

issi

ble a

s ...

Adm

issi

ble a

s ...

Both

of t

he ab

...

Inad

mis

sible

, ...

0%

59%

3%

38%

1. Admissible as a present

sense impression

2. Admissible as an excited

utterance

3. Both of the above.

4. Inadmissible, because

there is no independent

evidence of a startling

event.

21

Advisory Committee Note on Rule 803(2):

“ Whether proof of the startling event may be made by

the statement itself is largely an academic question . . . .

Nevertheless, on occasion the only evidence may be the

content of the statement itself, and rulings that it may be

sufficient are described as ‘increasing,’ . . . and as the

"prevailing practice" . . . . Moreover, under Rule 104(a)

the judge is not limited by the hearsay rule in passing

upon preliminary questions of fact.” [citations

omitted.]

•

22

Lira v. Albert Einstein Medical Center, p. 287

Superior Court of Pennsylvania, 1989

Why didn’t the excited utterance exception apply?

23

Why didn’t the present sense impression exception apply?

24

Lira on present sense impression:

“Here, the evidence failed to establish that the

declaration of Dr. Silberman, a throat specialist, was

‘instinctive, rather than deliberative -- in short, the reflex

product of immediate sensual impressions, unaided by

retrospective mental action.’ * * *

25

Fed. R. Evid. 803(1)(restyled) is a hearsay exception for “a

statement describing or explaining an event or condition

made while or immediately after the declarant perceived it.”

Does a statement have to be “instinctive, rather than

deliberate” in order to qualify for admission under Fed. R.

Evid. 803(1)?

Yes

. N

o.

It d

epen

ds.

18%27%

55%1. Yes.

2. No.

3. It depends.

Example: Mom calling to ask who’s there.

26

Lira’s alternate ground for decision (p. 289):

“To permit a physician's extrajudicial statement of

medical opinion . . . to be received in evidence would

run afoul not only of the hearsay exclusion but also of

the rule which holds that expressions of medical opinion

are generally inadmissible unless the physician

expressing the opinion is available for cross-

examination.”

27

State v. Jones, p. 289

Court of Appeals of Maryland, 1987

28

Out of the presence of the jury, Trooper Byrd testified that he heard the following transmissions:

1st Speaker: Look at Smokey Bear southbound with no lights on at a high rate of speed.

2nd Speaker: Look at that little car trying to catch up with him.

p. 231

29

Suppose that instead, Trooper Byrd had testified that he

heard a transmission saying “Back at exit 2, Smokey Bear

going at a high rate of speed with no lights on.” Would that

testimony have been admissible as a present sense

impression?

1. Yes.

2. No.

30

Which version presents the better case for admission,

Trooper Byrd’s testimony on p. 291, or his testimony in the

indented paragraph on p. 292?

1. p. 291

2. p. 292.

3. No difference.

31

State v. Jones under California Law

32

CEC § 1240. Spontaneous statement

Evidence of a statement is not made inadmissible by the hearsay

rule if the statement:

(a) Purports to narrate, describe, or explain an act, condition, or

event perceived by the declarant; and

(b) Was made spontaneously while the declarant was under the

stress of excitement caused by such perception.

Q. Would Trooper Byrd’s testimony about what he heard in

the CB transmissions be admissible under this section?

1. Yes

2. No

3. It depends

33

CEC § 1241. Contemporaneous statement

Evidence of a statement is not made inadmissible by the hearsay

rule if the statement:

(a) Is offered to explain, qualify, or make understandable conduct

of the declarant; and

(b) Was made while the declarant was engaged in such conduct.

Q. Would Trooper Byrd’s testimony about what he heard in

the CB transmissions be admissible under this section?

1. Yes

2. No

3. It depends

34

Question 1, p. 295

“Oh my God! Help me! That red car hit me while I was in

the crosswalk.”

The evidence is --

1. Admissible

2. Inadmissible

35

Question 2, p. 295.

“That lady was hit by a blue car which didn’t stop and she

was thrown up in the air and landed on the red car.”

The evidence is --

1. Admissible

2. Inadmissible

(Consider whether an objection could be made if the declarant had been called as a

live witness and had testified as above without first testifying he saw the accident.) ACN, P. 1183 OF 12TH Ed.))

36

Question 3, p. 295. Eight weeks after an assault that

caused brain damage to the victim, the victim’s sister

showed her a news article containing a picture of the

accused. In great distress, the victim pointed to the picture

and said, “He killed me, he killed me.”

The evidence is --

1. Admissible

2. Inadmissible

38

Hypo. D was driving a car involved in a serious auto

accident. Weeks later, D encountered the other driver.

Extremely excited, D exclaimed: “you ran a red light, that’s

why it happened!” D disappears and his statement is offered

in evidence to prove the truth of the matter asserted.

The evidence is --

1. Admissible

2. Inadmissible

39

Question 4, p. 295.

Declarant says over the CB radio, “I saw 2 men walking

away from the truck.” The two men were arrested five miles

away from the truck, a few minutes after declarant’s

statement.

The evidence is --

1. Admissible

2. Inadmissible

40

The end.