The Present Sense Impression exception is the first exception to the rule against hearsay and can be found under Rule 803.
But, before mastering an exception to hearsay, you should first understand what hearsay is.
The purpose of the rule against hearsay is prevent out-of-court statements from being introduced into evidence because that statement may not be truthful.
And if the lawyer cannot cross examine the person that made the out-of-court statement (i.e., the declarant), then how is the lawyer supposed to test the credibility of the statement? They can't.
In response, the lawyer can use one of the top courtroom objections -- the hearsay objection.
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Although hearsay evidence is generally not allowed in court because of its potential unreliability, courts can admit hearsay evidence if certain hearsay exceptions apply.
In this post, we'll simplify the Rule 803(1) exception, which is better known as the Present Sense Impression exception.
Rule 803 is a list of twenty-three exceptions to the rule against hearsay. Unlike Rule 804's exceptions to hearsay, Rule 803 does not consider whether the declarant is available to testify as a witness.
Rather, Rule 803 is primarily concerned about the context of the out-of-court statement.
Therefore, since Present Sense Impression falls under Rule 803, the analysis will focus on facts surrounding the out-of-court statement.
Looking at Rule 803, the first three exceptions are Present Sense Impression, Excited Utterance, and Then-Existing Mental, Emotional, or Physical Condition.
These three exceptions all share the same underlying principle: spontaneity.
The hearsay objection is designed to keep out statements that declarants have carefully crafted for their benefit at trial. However, a spontaneous statement is often believed to be more trustworthy because the declarant did not have the time to think about the effects of that statement.
As a result, the law understands that an all-out ban on all out-of-court statements is too much; especially if the statement was made when there was not enough time to careful craft such a statement.
This is why we have the Present Sense Impression exception to hearsay.
The Present Sense Impression exception applies to instances when the out-of-court statement was made (1) while the declarant observed the event or condition; or (2) immediately afterward.
When statements are made while or immediately after experiencing an event, the possibility of intentional misrepresentation or deliberate inaccuracy is greatly reduced.
Again, this concept of spontaneity is why present sense impressions are admissible forms of evidence at trial.
The critical factor behind this concept is time.
Was the statement made while the declarant observed the event?
If not, was the statement made immediately afterward?
Since there is no clear definition of "immediately afterward," this part of Present Sense Impression will be the battleground for most lawyers arguing Rule 803(1)'s application (or lack thereof).
When considering Present Sense Impression's concept of time, you need to keep in mind two things.
First, you don't want to be too consumed with hearsay exceptions that you overlook that the statement needs to satisfy Rule 402 and Rule 403.