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Contemporaneous Statements

Although there are several exceptions to the hearsay doctrine, they can be naturally grouped into a few different categories because they are based on similar principles. One such category deals with contemporaneous statements. Under the Federal Rules of Evidence, there are three exceptions for statements in this category:

1. Present Sense Impression: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Rule 803(1), Federal Rules of Evidence. It would therefore to be admissible for a Bob to testify, "Fred looked out the car window and said he saw Mary kissing another man." Fred’s statement relates to something that Fred was immediately witnessing at the time he made the statement.

2. Excited Utterance: statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Rule 803(2), Federal Rules of Evidence. Under this exception, Bob could testify, "Fred looked out the car window and shouted, 'Holy Crap! There’s Mary kissing some guy!' "

3. Then existing mental, emotional, or physical condition: A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. Rule 803(2), Federal Rules of Evidence. Under this exception, Fred could take the stand and testify, "Bob told me that he was enraged when he found out about Mary cheating on him." The "memory or belief" exception to the exception makes sense when you realize that mental impressions of memory or belief, if admissible, would result in the exception being swallowed by the rule.

The theory for carving out these exceptions to the hearsay rule relies on their purported reliability. Because these statements are made contemporaneously with some internal or external stimulus, the law presumes that the person making the statement is less likely to be lying, for two reasons. First, the contemporaneous and/or excited nature of the statement means the declarant has little time to invent a false story. Second, because these statements are made at the same time as some other event or condition, the witness offering the testimony can be cross-examined about the circumstances surrounding the statement:

"Bob, after Fred said that, did you look and see Mary with another man?"
"Fred, did Bob sound angry when he said that?"

If the statement is not consistent with the circumstances, the jury will be able to consider that. If the car was traveling too fast for Fred to have seen anyone, cross-examination of Bob ought to bring that out. If Fred wasn’t wearing his glasses, and therefore couldn’t see whether it was Mary or some other woman, cross-examination of Bob ought to bring that out. If Bob said he was angry but he smiled and laughed when he said it, cross-examination of Fred ought to bring that out. The jury can then take the statement together with any circumstances revealed on cross-examination to determine what they think really happened.

This project has been terminated at the insistence of an editor, even though there are still many exceptions left to cover. If you have questions, please feel free to inquire.

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