Present Sense Impression
• Hearsay statements may be admitted into evidence if they qualify as a present sense impression . . . .
Exception to the rule against hearsay: Text
• 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, condition or transaction, made while or immediately after the declarant perceived it.
Exception to the rule against hearsay: Interpretations of the text
• This rule requires that the statement describe or explain the event or condition during or immediately after its occurrence, and the statement must be based upon the declarant's perception of the event.
See Jones v. State, 780 N.E.2d 373, 376-77 (Ind. 2002)(“This rule requires the statement to describe or explain the event or condition during or immediately after its occurrence, and it must be based on the declarant's perception.”)
See also Davis v. Garrett, 887 N.E.2d 942, 947 (Ind. Ct. App. 2008), trans. denied(quoting Truax v. State, 856 N.E.2d 116, 126 (Ind. Ct. App. 2006))(“For a statement to be admitted under the present sense impression exception, the statement must describe or explain the event or condition ‘during or immediately after its occurrence, and the statement must be based on the declarant's perception of the event.’”)
E.g., Jones v. State, 780 N.E.2d 373, 377 (Ind. 2002)(“The victim's first assertion, which identified the person driving by as her landlord, satisfies the exception. The victim, based on her perception, was contemporaneously describing the person driving by. It was error to exclude this statement.”)
• In order for a statement to fall under the present sense impression exception, three requirements must be met: (1) it must describe or explain an event or condition; (2) during or immediately after its occurrence; and (3) it must be based upon the declarant's perception of the event or condition.
See Palacios v. State, 926 N.E.2d 1026, 1032 (Ind. Ct. App. 2010)(citing Amos v. State, 896 N.E.2d 1163, 1168 (Ind. Ct. App. 2008), trans. denied)(“In order for . . . testimony to fall under the present sense impression, three requirements must be met: (1) it must describe or explain an event; (2) during or immediately after its occurrence; and (3) it must be based on the declarant's perception of the event.”)
Requirement that the statement describe or explain an event or condition
• The victim's second assertion, in which she expressed her fear of her landlord, does not satisfy the exception. This assertion does not describe an event contemporaneously perceived. The fact that the victim feared her landlord does not describe or explain an event, condition, or transaction that the declarant was perceiving as she spoke.
• The record reveals that the event being described or explained was a cell phone conversation between [the declarant] and [the defendant]. A telephone call is certainly an event, and when [the declarant] spoke to [the witness], [the declarant] was describing and explaining the event of the cell phone conversation with [the defendant].
Requirement that the statement be made during or immediately after the occurrence of the event or condition
• [T]he Rule 803(1) requirement that a statement be made “immediately” after the declarant's perception “is based on the assumption that the lack of time for deliberation provides reliability.”
• [The declarant’s] statements regarding what [the defendant] had told her during their cell phone conversation were made immediately after she had completed her cell phone call with [the defendant]. [The declarant] had been talking with [the witness] on her land line when her cell phone rang, and she put [the witness] on hold while she took that cell phone call, which turned out to be [the defendant]. When [the declarant] finished the cell phone call with [the defendant], she immediately returned to her telephone conversation with [the witness] and described what [the defendant] had stated during their conversation. This proximity in time between the event and [the declarant’s] description of the event satisfies the requirement of the exception.
• Here, “a few minutes,” and certainly “a few minutes” plus up to ten more minutes, is ample time for a declarant to deliberate and possibly fabricate a statement, especially where the declarant knows officers are looking for evidence of a particular type of crime and the declarant himself has been implicated in the commission of that crime.
• It is clear that, in Amos, there was no delay between the defendant's statements and the declarant's recitation of those statements, let alone a delay of a few minutes or more.
• The record reveals that the defendant's statement was not made until hours later, after the defendant heard about the victim's death, not immediately after the commission of the crime. Therefore, the trial court did not abuse its discretion in refusing to admit the evidence under the present sense impression exception.
• Here, the record reveals that the event occurred sometime within the three hours that Mother left [the declarant] in the care of [the defendant]. Therefore, it is clear the [declarant] was not describing the event as it occurred and was being experienced by the [declarant]. The evidence does not support the conclusion that the [declarant] made the statement immediately after the event. The statements to the mother did not qualify as present sense impressions.
Writings may be admitted as present sense impressions
• We conclude that the contemporaneous nature of Trooper Sorrells's notes with his telephone negotiations makes the notes admissible as a present sense impression pursuant to Indiana Evidence Rule 803(1).
Translations may be admitted as present sense impressions
• [W]e conclude that [the] translations providing contemporaneous descriptions of the statements made by [the declarant] constituted present sense impressions.
• For information about whether statements made by a person providing a translation constitute hearsay, please review In General.