Rule 803(1): Present Sense Impression - A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 1

Sarah is driving down Main Street when she witnesses a car accident. She immediately calls 911 and says, "I just saw a red pickup truck run the red light and slam into a blue sedan in the intersection of Main and Oak." At trial, Sarah testifies about what she told the 911 operator.

Is Sarah's statement admissible under Rule 803(1)?

Question 2

During a bank robbery, a security guard hiding behind a counter whispers into his radio, "Two men in black masks, one tall, one short, the tall one has a gun pointed at the teller." The guard is killed during the robbery. At trial of the alleged robbers, another security guard who heard the radio transmission testifies to what the deceased guard said.

Is this testimony admissible under Rule 803(1)?

Question 3

Jessica is walking her dog when she hears a loud crash from around the corner. She runs to investigate and sees a damaged storefront with broken glass everywhere. Ten minutes later, she runs into her friend and says, "I just saw the aftermath of what looks like a car that crashed into Miller's Bakery. There's glass all over the sidewalk and the front window is completely shattered."

If Jessica testifies to this statement, is it admissible under Rule 803(1)?

Question 4

Tom is riding as a passenger in a car when he suddenly yells, "Watch out! That motorcycle is coming straight at us!" The car is then hit by the motorcycle. Five minutes after the accident, Tom tells a paramedic, "I saw that motorcycle swerving all over the road before it hit us." The statement is offered to prove the motorcycle was driving erratically.

Is Tom's second statement admissible under Rule 803(1)?

Answer Key

1. Yes - The statement describes an event Sarah perceived while it was happening (the collision), made contemporaneously during her 911 call. Yes.

2. Yes - The guard was describing what he was observing in real-time during the robbery, and while is he currently unavailable to testify, the guard’s statement has elements the FRE requires for Present Sense Impression.

   1. A statement

   2. describing or ex- plaining an event or condition

   3. made while or immediately after the declarant perceived it.

3. No -Jessica didn't actually perceive the crash itself, only the aftermath. Present sense impression requires describing or explaining an event or condition the declarant actually perceived, not inferences about what might have caused observed conditions.

4. Maybe - Five minutes after the accident might be too removed in time from Tom's original perception of the motorcycle's erratic driving to qualify as "while or immediately after" perceiving it. However, if Tom was still experiencing the stress and excitement of having nearly been run down by a motorcycle the statement may be admissible under 803(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Let’s delve into these now.

Present Sense Impression -Rule 803(1)

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Present sense impressions gain their reliability from the closeness in time between making of the out-of-court statement and the occurrence of the event described or explained. The nigh simultaneousness of the event and the statement negate the likelihood of deliberation or conscious misrepresentation.

The only guarantee of reliability for this exception is contemporaneousness, the event and the statement must be extremely close in time. Even a brief reflective period may destroy the spontaneity required.

The statement is admissible for the truth of the occurrence that it describes, and the admissibility of the statement is limited to so much of the statement as describes the event or condition perceived by the declarant.

The elements of 803(1) are:

• A statement that describes an event or condition; and

• a closeness in time to the event or condition described.

  • Must be while it is occurring or immediately thereafter.

The reason the courts would likely admit this statement over any hearsay objection is the absence of time the speaker had to deliberate and therefore fabricate their statement. They saw the car run the light and cried out.

Excited Utterance Rule 803(2) -

An excited utterance is a spontaneous out-of-court statement which related to a startling event and which is made while the declarant is under the stress or excitement caused by the event.

When something shocking or surprising happens, people sometimes blurt out statements without thinking. These spontaneous reactions are considered more trustworthy because the person was so caught off guard that they didn't have time to think up a lie or twist the truth to benefit themselves.

For a statement to count as this type of reliable "excited utterance," the event that caused it must have been startling enough that the person reacted instinctively, without having a chance to carefully consider what they were saying or how it might affect them.

Basically, the idea is that when people are truly surprised or shocked, they're more likely to tell the truth because they haven't had time to come up with a lie.

In order to demonstrate that a statement falls within Rule 803(2) and prior to offering the statement itself into evidence, the proponent of the statement must lay a foundation for the context of the statement which shows:

• the startling event and

• the statement's connection to that event.

Unlike present sense impressions, an excited utterance doesn't have to occur at the exact same time as the event. The statement can happen later, as long as the person was still emotionally shaken up or stressed from the shocking event when they made the statement.

In other words, if someone witnesses a car crash, they don't have to make their statement right at the moment of impact. They could make it minutes or even hours later, and it would still count as an excited utterance - as long as they were still clearly affected by the trauma or shock of what they saw when they spoke.

The key point to the excited utterance exception to hearsay is that the person is still operating under the stress of that original startling event, and therefore the declarant is less likely to be able to lie.

For example, imagine someone gets hurt in a shocking accident and passes out. When they wake up and immediately blurt out something about what happened to them, that statement could still count as an excited utterance. Even though time has passed while they were unconscious, they're still considered to be reacting under the stress of that original traumatic event.

So if someone gets hit by a car, loses consciousness, and then wakes up in the hospital saying "That red truck ran right through the stop sign!" - that statement could still be treated as reliable because they're still emotionally affected by the accident, even though they weren't conscious for a period of time in between.

The unconsciousness doesn't reset the clock - if they're still clearly shaken up from the original event when they regain consciousness, their spontaneous statement can still qualify.

The exception has also been found to be available in a circumstance where a sufficiently startling event occurs and the excitement continues until the declarant has an opportunity to report the event to another person. As a general rule, however, the passage of time between the event and the statement will be given strong consideration because necessarily, over time, excitement wears off and reflection takes its place.

This exception can also apply when something shocking happens and the person stays emotionally worked up until they get a chance to tell someone else about it. So if someone witnesses a terrible accident but doesn't have anyone to tell right away, their statement could still count as an excited utterance when they finally do get to report it - as long as they were still clearly shaken up the whole time.

However, time is a factor that courts will carefully consider. The longer the gap between when something happens and when the person makes their statement, the less likely it is to qualify. This makes sense because as time passes, people naturally calm down from their initial shock and start thinking more clearly - which means they have more opportunity to reflect and potentially lie.

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My law professor once said that lawyers are the mages of the modern day. We use archaic language to draw forth the coercive powers of the State. Most law students enter school believing they will now be taught how to understand these arcane rules. Often, they find their education disappointing because many of the rules they encounter seem more convoluted and less intuitive then many believed they would be.

The Hearsay Rule is one of these oft despised rules. It has risen in the annals of legal scholarship to be as hated as the Rule against Perpetuities. Though the study of this rule is rife with difficulty, once you master it you will be able to amaze your friends and astound your employers with your insight. (Or at least, manage to represent your clients properly in court.)

We will begin by discussing the rationale behind the Hearsay Rule and then will move into the rule itself.

The primary purpose of the Hearsay Rule(s) is to limit the introduction of inaccurate testimony. If you have ever played a game of telephone you know how small facts can change as stories are shared from person to person. As one of the primary ways we bring evidence into the courtroom is through witness testimony finding ways to determine what is more reliable and less likely to be inaccurate was an important element in the creation of our evidence rules.

The rationale behind the rule against hearsay is that hearsay evidence denies the opponent the opportunity to cross-examine the person whose perception, memory, and sincerity are in issue.

Rule 802. The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute;

• these rules; or

• other rules prescribed by the Supreme Court.

Basic Hearsay 3 Step Analysis

• Is there an out of court statement?

  • Statement may be;

    • (a) oral,

    • (b) written,

    • or (c) conduct intended as a substitute for words. (Nodding your head, shaking your head, running your finger across your neck, flipping someone off, etc.)

• If so, what is it being offered to prove?

  • If offered to prove the truth of the matter asserted and we care about the credibility of the declarant, it is hearsay.

  • If offered to merely prove statement was made and we do not care if the declarant is lying or was mistaken, it is not hearsay.

• Does the probative value depend on the credibility of the declarant?

  • If yes, it is hearsay. If no, then it is not hearsay.

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FRE 402 (the General Admissibility of Relevant Evidence) states:

"Relevant evidence is admissible unless any of the following provides otherwise:

• the United States Constitution;

• a federal statute;

• these rules; or

• other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

In simple terms, this rule breaks down into two parts:

1. All relevant evidence is admissible and

2. All irrelevant evidence is inadmissible.

When you begin to analyze each piece of evidence you want to present to the court this is the first question you ask. Is it relevant?

If the evidence you want to offer is irrelevant, your analysis is over, it is inadmissible. There are no exceptions. You cannot bring it to light in court. You are done. Throw it in the bin.

If the evidence you hold is relevant, your analysis has just begun, because it may be admissible, so long as it does not fall into one of the exceptions governing admissibility. There are many exceptions to admissibility, most of them determined by the discretion of the judge.

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This struggle isn't incompetence. During trial, attorneys must juggle countless tasks: managing witnesses, adapting to unexpected testimony, gauging jury reactions, establishing case elements, and guiding nervous witnesses through testimony to coax out vital pieces of information in order to adequately meet their burdens of proof.

It's like herding cats through a sea of herring while ensuring none of them eat anything.

The Value of Expert Witnesses

Expert witnesses can significantly strengthen a case. They typically have testifying experience, making them less prone to nerve-induced memory lapses. As professional witnesses they can maintain their testimony's focus under the pressures of trial and are usually fairly reliable.

My first experience with an expert witness was in my very first trial and it demonstrated their value immediately. While interviewing a psychiatrist who treated my client (an abused child), he stated, "the opportunity to help children is a perishable one." This perfectly captured what I needed the factfinder to understand - we needed to help this child now, not later, because the longer the child continued to be unhelped the more damage was being done. I asked the expert to repeat this during testimony and made his statement the core theme of my case, incorporating it into my opening and closing arguments. By the end of the trial the factfinder had heard me say "the opportunity to help children is a perishable one” in my opening, had heard the expert say it on the stand during his testimony, and had heard me circle back to it in closing.

Proper expert witness preparation can transform their testimony into a compelling component of your case.

Modern Rules Governing Expert Testimony: FRE 702-705

RULE 702: Testimony by Expert Witnesses (as amended Dec. 2023)

A witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

RULE 702 in plain English:

A qualified expert can give opinions about facts outside everyday knowledge if you can show the court it's more likely than not that:

1. The expert's specialized knowledge will help the factfinder

2. Their opinion is based on sufficient information

3. They used reliable methods

4. They applied those methods properly to this case

The 2023 amendment clarified that the proponent of expert testimony must demonstrate admissibility by a preponderance of evidence standard ("more likely than not").

Experts come in many forms - not just doctors or specialists with advanced degrees. Expertise can develop through experience. For example, a police officer can testify as an expert on intoxication based on extensive experience with intoxicated individuals, even without formal alcohol abuse training.

RULE 703: Bases of Opinion Testimony by Experts

The facts or data experts base opinions on may be those they personally observed or learned before/during the hearing. If experts in the field would reasonably rely on such facts/data, they need not be admissible for the opinion to be admitted. However, inadmissible facts cannot be disclosed to the jury unless their value in helping evaluate the expert's opinion substantially outweighs their prejudicial effect.

Rule 703 in plain English:

Experts can form opinions using both admissible evidence and some inadmissible information that experts in their field typically rely on. However, they generally cannot disclose the inadmissible information to the jury. This prevents attorneys from using experts to introduce inadmissible evidence.

RULE 704: Opinion on Ultimate Issue

(a) An opinion is not objectionable just because it embraces an ultimate issue.

(b) In criminal cases, expert witnesses must not state opinions about whether the defendant did/didn't have a mental state or condition constituting an element of the crime or defense. Those matters are for the trier of fact alone.

RULE 704 in plain English:

Experts can offer opinions on ultimate issues before the court. However, in criminal cases, they cannot testify about a defendant's mental state regarding the crime.

Example: A doctor can testify that workplace activity could have caused death, but cannot testify about a defendant's criminal intent.

RULE 705: Disclosing Facts or Data Underlying an Expert Opinion

Experts may state opinions without first testifying to underlying facts/data, unless the court requires otherwise. They may be required to disclose these facts/data on cross-examination.

Rule 705 in plain English:

Experts can give opinions without first detailing all facts they relied on, unless the court requires it. However, they may have to disclose this information during cross-examination.

The Daubert Standard Today

The Daubert trilogy (Daubert v. Merrell Dow Pharmaceuticals, General Electric v. Joiner, and Kumho Tire Co. v. Carmichael) established modern expert testimony standards. These principles have been incorporated into the Federal Rules of Evidence and adopted by most state courts.

When evaluating expert testimony today, courts typically consider:

1. Reliability: Has the theory/technique been empirically tested?

2. Peer Review: Has the expert's methodology been subject to peer review and publication?

3. Error Rate: What is the known/potential error rate and are there controlling standards?

4. General Acceptance: Is the methodology generally accepted within the relevant scientific/professional community?

5. Relevance: Does the testimony connect to the specific facts of the case?

The 2023 amendment to Rule 702 addressed concerns about inconsistent application of Daubert standards by emphasizing that judges must act as gatekeepers and explicitly requiring proponents to demonstrate admissibility by a preponderance of evidence.

Conclusion

Expert witnesses remain invaluable resources during trial. They can help establish case themes, provide memorable testimony, and support your position with credible specialized knowledge. To maximize their effectiveness, invest substantial preparation time with your experts before trial - listen to what they have to say and see if any of their nuggets of wisdom make a good theme for your case. You can’t lead their testimony but you can ask them to be sure to repeat something they’ve told you at trial.

Evidence is an essential part of our judicial system, permeating all aspects of legal practice. Every lawyer, regardless of specialization, must be able to understand and apply evidentiary principles.

Trial lawyers use the rules of evidence daily, as they forms the foundation of courtroom advocacy and determines what information can or cannot be presented to judges and juries.

Transactional attorneys need to understand the rules of evidence so they know how the contracts and agreements they prepare for their clients every single day can be challenged or defended using evidence.

Indeed, all lawyers must understand evidence, even those who never enter a courtroom. This is because all legal practice operates under the shadow of potential litigation.

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Rule 103 - Rulings on Evidence reads as follows:

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Now, of course, it is your job as an attorney or a law student to determine precisely what all that means. Let’s put it into plain English together:

Federal Rule of Evidence 103 in Plain English

(a) How to Preserve Your Right to Complain About Evidence on Appeal

You can only challenge a judge's evidence ruling on appeal if:

1. The ruling seriously (substantially) affected your case, and

2. You followed the following procedures:

When evidence is ADMITTED that you think should be EXCLUDED:

• Object right away or move to strike

• Clearly state why it's objectionable (unless the reason is patently obvious)

• Make sure your objection is recorded

When evidence is EXCLUDED that you think should be ADMITTED:

• Tell the judge what the evidence would have shown (called an "offer of proof")

• This isn't necessary if it was already clear what the evidence would have shown

(b) When You Don't Need to Object Again

If the judge makes a definite ruling on the record (either before or during trial), you don't have to keep objecting to the same issue to preserve your right to appeal.

(c) The Judge's Role in Clarifying Rulings

The judge can:

• Make statements explaining the ruling and the evidence involved

• Require that offers of proof be presented in a question-and-answer format

(d) Keeping Inadmissible Evidence from the Jury

The judge must take practical steps to prevent the jury from being exposed to evidence that has been ruled inadmissible.

(e) The Plain Error Safety Net

Even if you didn't properly object, the court can still recognize and correct a "plain error" (an obvious, serious mistake) that substantially affected someone's rights.

What does all this mean in practice?

1. Speak up or lose your right to complain later: If you don't object to bad evidence coming in (or make an offer of proof for good evidence kept out), you generally can't raise the issue on appeal. There is a real risk of use it or lose it.

2. Be specific: Vague objections like "I object!" aren't enough. You need to specify the rule or reason (e.g., "Objection, hearsay" or "Objection, lacks foundation"). Of course, you need to do this usually without using speaking objections so learn the rule numbers or at least the names.

3. Make the record: Ensure your objections and the judge's rulings are properly recorded for the appeal court to review.

4. One clear ruling is enough: Once the judge definitely rules on an evidence issue, you don't need to keep objecting to preserve your appeal rights.

5. Make offers of proof useful: When showing what excluded evidence would have proven, be specific enough that an appeals court can understand its importance.

6. Plain error is rare: Don't count on the "plain error" provision to save you - it's only for exceptional circumstances where a serious injustice would otherwise occur.