Dear and Beloved Colleagues,
After our date with John Wigmore (or was it more of a one-night stand? Hmmm? I’d see him again, but does he want to see me?) last issue, I was thinking about how we should get into the reality of this hearsay thing. It’s so much! Have I finally bitten off more than my big mouth can chew? Fear not dear reader, for I have the jaw muscles of a much younger woman.
I suppose that the best way to tackle this thing, now that we know what hearsay is, is to talk about admissible hearsay, exception by glorious exception. I can’t wait. Turn now, if you will, to Texas Rule of Evidence 803 and read along with me,
“EXCEPTIONS TO THE RULE AGAINST HEARSAY—REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS
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.”
Ok, let’s stop there and evaluate this first exception: “present sense impression.” We are told in our law school evidence classes that the exceptions to the hearsay rules are time-honored traditions, truisms passed down throughout human existence that supply sufficient “indicia of reliability.” But that’s kind of bull, isn’t it? What does that mean, exactly? That it’s some kind of ancient Roman maxim that we all recognize the inherent truth in? If that’s the case, why don’t we also admit hearsay statements made under the influence of alcohol, since in vino, veritas, after all?
It turns out that the origins of some hearsay exceptions are not much more complex than just that. Present Sense Impression, along with some of the other exceptions we will look at in future columns, comes from trying to tease some sense out of the “res gestae” rule, which had, at the end of the 19th century, become a veritable dumpster fire on which judges burned the rights of defendants. In Latin, “res gestae” means “things done.” For our purposes, it basically means the story of the crime. We still use “res gestae” in legal Latin for other reasons, “the police said he made a ‘res gestae’ statement” (usually meaning that it was a voluntary utterance from someone at or near the time of the offense- “I shot that guy because he was coming at me!”) but just general “res gestae” itself as a whole blob of concepts doesn’t work as a hearsay exception anymore.
So back in the days when smarter folks than your dearest correspondent sat down to puzzle things out, they decided to try and define what, specifically, made statements that were otherwise hearsay credible, other than just being sloppily categorized as “res gestae.” In 1898, James Thayer, a Harvard law professor, issued his “A Preliminary Treatise on Evidence at the Common Law.” Yes, dear reader, it was as fascinating as it sounds, and beat out my own beloved John Wigmore’s evidentiary edicts by about six years. It was a big thing at the time, but if you look up the digitized copy that the Cornell library keeps on hand, it hasn’t been checked out since 1993. Boo. Hiss.
Thayer identified the present sense impression as a distinct type of res gestae statement with unique reliability. He indicated that the reliability of the present sense impression came largely from its proximity in time to the event that was being described, and clarified that the requirements for admissibility of such statements were that they were: spontaneous statements describing the event, made at the time of the event, and witnessed by another person who also witnessed the event.
Ok. So that’s a lot of requirements. Texas law doesn’t require the witness who also witnessed the event, instead teasing apart the elements thusly: “a statement must (a) describe or explain an event or condition, (b) be expressed by the person who made the observation, and (c) be made contemporaneously with or immediately after the observation.”
If you go digging Lexis or Westlaw for some cases about present-sense impression, you will find sadly very little. That said, there is some really interesting stuff on there that defense lawyers ought to be aware of.
“The rationale underlying the present sense impression is that: (1) the statement is safe from any error of the defect of memory of the declarant 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.” Fischer v. State, 252 S.W.3d 375 (Tex. Crim. App. 2008).
In Fischer, a trooper stopped defendant’s vehicle with the intention of citing defendant for failing to wear a seatbelt, and the trooper subsequently discovered that defendant had been drinking and arrested him for DWI. During the stop, the trooper contemporaneously dictated his observations on to his patrol car videotape. On appeal of the appellate court’s decision that the trooper’s taped observations were not admissible as a present sense impression hearsay exception under Rule 803(1), the court affirmed. The evidence showed that the trooper calmly walked back and forth from his patrol car to defendant several times, and that he carefully and deliberately narrated the results of his DWI field tests and investigation. The trooper’s statements were testimonial and reflective in nature, and they were the type of statements that were made for evidentiary use in a future criminal proceeding; therefore, they were not the sort of spontaneous, unreflective, contemporaneous present sense impression statements that qualified for admission under Rule 803(1).
One of the things I think we ought to be mindful of in this modern era is the use of social media as essentially present-sense impression machines. Twitter, Facebook, Instagram…aren’t they all just saying what we’re doing and feeling at any given time? If I were arguing against admission of a social media post, I might suggest that written statements are more calculated than oral exclamations, no matter how speedy the typist, and that the calculation and reflection sufficient to put something on social media defeats at least the spontaneity element. But the times, as they say, are a’ changin’.
I am hopeful that by understanding the underpinnings of the hearsay exceptions, the things that historical men with historical mustaches have thought made them as reliable as a live cross-examination would have, we can contest things that are not so reliable. The key to understanding is dissection. Next time, we will evaluate the EXCITED UTTERANCE, which I find fascinating since the utterance I am most likely to make as I’m witnessing a catastrophic event is usually a superlative expletive, which, if taken literally, are not accurate descriptions, unless such events are scatological or reproductive in nature. Until then, sweet reader, I remain,