Michael J. Hutter
Michael J. Hutter ()

In a recent decision, United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), a garden variety case in which a 911 call was admitted under the Federal Rules of Evidence (FRE) hearsay exceptions for present sense impressions, FRE 803(1), and excited utterances, FRE 803(2), the U.S. Court of Appeals for the Seventh Circuit expressed its view that those exceptions do not necessarily rest on a sound foundation. However, since those exceptions were “well-established,” the court nonetheless applied them to the facts of the case and found them applicable. Id. at 796-797.

Judge Richard Posner in a provocative concurring opinion went a step further, noting “there is a profound doubt whether either [exception] should be an exception to the rule against the admission of hearsay evidence.” Id. at 800. In that connection, he further noted that the voluminous case law applying the exceptions are “less than reassuring…reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.” Id. at 802.

Posner’s solution? He would scrap those exceptions and then eliminate as well all of the FRE hearsay exceptions in favor of a single exception—a “simplification” of FRE 807—under which hearsay evidence would be admissible when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.” Id. In essence, the trial judge would determine whether offered hearsay is admissible on a case-by-case basis.

As a prominent blog, “Evidence Prof Blog” has noted, Posner’s “no-holds barred critique…is sure to generate interest in revisiting the hearsay thicket.”1 At a meeting of the federal courts’ Advisory Committee on Evidence Rules held on April 4, 2014, a few weeks after Boyce was decided, the committee’s reporter, Daniel J. Capra, the Philip Reed Professor of Law at Fordham University School of Law, raised with the committee Posner’s concerns and suggestions, and noted among other things, that it might be wise for the committee “to seek data from judges and litigants before [deleting the exceptions]—perhaps a mini-conference and/or a federal judicial center survey would be warranted.”2 Is such a reevaluation of New York’s present sense impressions and excited utterances hearsay exceptions in order? This column will address that issue.3


Analysis starts with a discussion of the exceptions as recognized by common law. The present sense impressions exception provides that a statement describing or explaining an event or condition made while the declarant is perceiving the event or condition, or immediately thereafter is admissible.4 The excited utterances exception provides that a statement relating to a startling event or condition made while the declarant was under the stress of excitement is likewise admissible.5 The rationale for the present sense impressions exception is that substantial contemporaneity of event and statement negates the likelihood of deliberate and conscious misrepresentation and reduces or at least minimizes the risk of failed memory.6

Along similar lines, the rationale behind the excited utterances exception is that the stress of the excitement element will preclude fabrication because that stress stills the declarant’s reflective capacity and the time element minimizes the risk of memory lapse.7 FRE 803(1) and FRE 803(2) rest upon the common law rationale for the exceptions and continue their elements.8

New York’s adoption of the excited utterances exception in People v. DelVermo, 192 N.Y. 470 (1908) was predicated upon its common law rationale, as shown by the Court of Appeals citing in support of its adoption Wigmore’s view of the reliability of statements admitted under the exception.9 Likewise, New York’s adoption of the present sense impressions exception in People v. Brown, 80 N.Y.2d 729 (1993), followed its common law heritage. Notably, the Court of Appeals rejected Wigmore’s criticism of the rule, but tempered that rejection by imposing a corroboration requirement. Id. at 734.10 Thus, the exceptions’ adoptions in New York are based upon observations and beliefs expressed over 100 years ago.

As Posner observed in Boyce, the exceptions’ rationales are questionable. With respect to the present sense impressions exception, Posner commented that “it is difficult to take [the] rationale [that immediacy negates the likelihood of fabrication] entirely serious, since people are entirely capable of spontaneous lies in emotional circumstances.” Boyce, 742 F.3d at 801.11 Indeed, Wigmore, in arguing against the exception, stated “to admit hearsay testimony simply because it was uttered at the time something else was going on is to introduce an arbitrary and unreasoned test, and to remove all limits of principle.”12

As for excited utterances, it has been observed: “The entire basis for the exception may…be questioned. While psychologists would probably concede that excitement minimizes the reflective self-interest influencing the declarant’s statements, they have questioned whether this might be outweighed by the distorting effect of shock and excitement upon the declarant’s observation and judgment.”13 As Capra has noted, Posner is surely right that the scientific data and common sense indicate that people can lie immediately and they can lie even though or because they are excited.14 Thus, the exceptions have neither a sound theoretical or empirical basis, and are not even reflective of “good folk psychology.”15

Should New York therefore abandon the exceptions, either judicially or legislatively? The answer is “no” as the Court of Appeals has recognized additional factors beyond those found at common law or in the Federal Rules of Evidence, which enhance the reliability of hearsay admitted under the exceptions by minimizing the risk of fabrication and misperception. These additional factors suggest that the Court of Appeals, while adhering to the common law rationales nonetheless have some reservations about their soundness, and instead of rejecting the exceptions, retained them with additional elements.

Present Sense Impressions

While the Court of Appeals in Brown, supra, held that the present sense impressions exception is “the law in this state,” it has not blindly followed the common law or FRE 803(1). Initially, the court in Brown added an element of corroboration by independent evidence to assure the reliability of the offered hearsay. Specifically, there must be corroboration of the event described in the statement and which precipitated the making of the statement.16 This corroboration requirement shows the court’s concern that the declarant could be fabricating an event, and cross-examination of the witness who testifies to having heard the statement may be ineffective in showing such fabrication because the witness may not have seen the event. Brown, supra at 734.

For example, in the first reported New York case adopting the present sense impressions exception, People v. Watson, 109 Misc.2d 71 (Sup. Ct. Kings Co. 1981), revd. 100 A.D.2d 452 (2d Dept. 1984), the issue in this murder prosecution was the admissibility of a hearsay statement made by the victim shortly before her murder to a friend in a telephone conversation that “The super is at the door. I am going to let him in, so call me back if you have the time.” Watson, 109 Misc.2d at 72.

The statement was offered by the prosecution to prove the defendant, who was the superintendent in the victim’s apartment building, was at the scene of the murder around the time it occurred. An obvious concern with the victim’s statement was that she may have been lying about the superintendent’s presence, albeit a “little white lie,” to end the conversation in a nice way. That risk was substantial as the jury could not really assess whether it was a lie. A corroboration requirement would eliminate that risk, as the Second Department, prophetically, held.

Notably, the Court of Appeals rejected the position of the New York State Law Revision Commission as put forth in its 1982 Proposed Code of Evidence wherein the commission proposed for New York the federal rule except that under the proposed rule the declarant must be unavailable as a witness.17 The commission’s concern was similar to the court’s concern but was sought to be handled by an availability requirement.18

A further effort by the Court of Appeals to assure reliability is its insistence that the exception’s element—the statement was made while observing the event or “immediately thereafter”— imposes a strict contemporaneity requirement.19 Noting that the absence of any significant time for reflection lies at the heart of the exception, and supports reliability, the court held in People v. Vasquez, 88 N.Y.2d 561, 575 (1996), that statements made after the event being described has concluded cannot qualify as present sense impressions. While there necessarily may be some delay between the occurrence and declarant’s statements, if the statement is made even a minute after the event, the statement does not qualify. Id. Notably, the court implicitly rejected the expansive interpretation of “contemporaneous” made by several federal courts.20

The added element of corroboration together with the strict contemporaneity requirement sufficiently addresses the concerns raised by Posner. As a result, there seems to be no need to scrap the present sense impressions exception or impose upon it additional requirements which might exclude otherwise reliable evidence.

Excited Utterances

Although the Court of Appeals has embraced the questionable rationale underlying the excited utterances exception, its decisions reflect an attitude that borders on a cautious, if not strict, use of the exception. This attitude suggests that the court may still harbor some uneasiness about the exception’s underlying rationale.21

This attitude is evident in the court’s observation that the critical focus for a court in determining the applicability of the exception is the declarant’s mental state at the time of the statement, which focus asks in essence whether the statement is reflective or reflexive.22 If it appears to the court that the declarant had the time to calmly reflect, the statement will be excluded. But if the statement appears to be the instinctive or impulsive reaction of the declarant, it is reflexive, and thus admissible.23 By all accounts this approach appears to be satisfactory in keeping fabricated statements from the jury.

While this focus on determining whether the statement is reflective or reflexive can eliminate fabricated statements, it does not necessarily address the risk of misperception as a result of the excitement. However, this concern is not sufficiently problematic to warrant eliminating the exception. Two reasons support this conclusion. One is that the exciting event could have caused the declarant to concentrate on the event, which would minimize the risk of misperception. The other reason is that exclusion would, in a large number of cases, preclude a statement of a declarant who was involved in an accident or crime, and thus likely to be in a position to perceive the event, thereby precluding otherwise good (and perhaps a party’s only) evidence from being heard by the jury.24 Policywise, this is not a desirable result.

In sum, the excited utterances exception, despite its criticized underlying rationale does not need to be abandoned or modified.


1. http://lawprofessors.typepad.com/evidenceprof/2014/02/judge-posner-advocates-reforming-the-hearsay-rules.html.

2. Capra, Memorandum to Advisory Committee, dated March 1, 2014, available at http://uscourts.gov/RulesAndPolicies/rules/archives/meeting-minutes.aspx.

3. The column will not address the separate issue of whether a single exception for hearsay in some form is warranted. Currently New York law does not have an exception similar to FRE 807. See, Barker & Alexander, Evidence in New York State and Federal Courts [2d ed] §8:92. A future column will separately address this issue.

4. McCormick On Evidence (3d ed) §298.

5. Id. at §297, citing in support, among other commentators, 6 Wigmore, Evidence §1747.

6. Id. at §298.

7. Id. at §297.

8. Advisory Committee Note (1972) to FRE 803(1) and (2).

9. See, Prince, Richardson on Evidence (8th ed) §263; see also, People v. Caviness, 38 N.Y.2d 227, 231 (1975).

10. This additional element will be discussed infra.

11. See also, Lust v. Sealey, 383 F.3d 580, 588 (7th Cir. 2004) (noting studies showing that less than one second is needed to fabricate a lie).

12. 3 Wigmore, A Treatise on the System of Evidence in Trials at Common Law §1757, at p. 2268 (1904). This is the argument the Court of Appeals in Brown specifically rejected. 80 N.Y.2d at 734.

13. 2 McCormick on Evidence (7th ed 2013) §72.

14. Capra, Memorandum, supra.

15. Boyce, 742 F.3d at 801 (Posner, J., concurring).

16. See, Barker, supra, §8:30; Martin, New York Evidence Handbook (2d ed) §8.3.3, at pp. 726-728; Prince, Richardson on Evidence (Farrell 11th ed) §8-603.

17. Proposed N.Y. Code of Evidence §804(6)(i) (1982). I would note that I was at the time the commission’s Executive Director and with Professor Michael Martin and Dean Jerome Prince prepared the draft for the commission’s review.

18. See, McLaughlin, “New York Trial Practice,” NYLJ, June 12, 1981, p. 2, col. 3.

19. Martin, supra, §8.3.3, at p. 725.

20. Binder, Hearsay Handbook (4th ed) §8.1 (collecting cases).

21. See, People v. Johnson, 1 N.Y.3d 302 92003); Prince, supra, §8-605.

22. Johnson, 1 N.Y.3d at 306; People v. Brown, 70 N.Y.2d 513, 522 (1987); Barker, §8:31 at pp. 161-168; Martin, supra, §8.3.3 at pp. 732-733.

23. Ibid.

24. 4 Mueller and Kirkpatrick, Federal Evidence (4th ed) §8:68.