803(1) Fact patterns

For fun and practice.

Present Sense Impression Questions - Rule 803(1)

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

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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)?

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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)?

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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)?

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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.