United States Court of Appeals For the Seventh Circuit
Evidence – hearsay — excited utterances — present sense impressions
A 911 call was properly admitted under the excited utterance and present sense impression exceptions to the hearsay rule.
“The theory underlying the present sense impression exception ‘is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.’ Fed. R. Evid. 803 advisory committee’s note. Along similar lines, the idea behind the excited utterance exception is that ‘circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.’ Id. In other words, the statement must have been a spontaneous reaction to the startling event and not the result of reflective thought. 2 McCormick on Evidence § 272 (7th ed. 2013). But that is not to say the spontaneity exceptions in the Federal Rules of Evidence necessarily rest on a sound foundation. We have said before regarding the reasoning behind the present sense impression that ‘[a]s with much of the folk psychology of evidence, it is difficult to take this rationale entirely seriously, since people are entirely capable of spontaneous lies in emotional circumstances.’ See Lust v. Sealy, 383 F.3d 580, 588 (7th Cir. 2004) (noting studies showing that less than one second is needed to fabricate a lie) (citing Douglas D. McFarland, Present Sense Impressions Cannot Live in the Past, 28 Fla. St. U. L. Rev. 907, 916 (2001)). As for the excited utterance exception, ‘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 judgement.’ 2 McCormick on Evidence § 272 (7th ed. 2013).”
“Nonetheless, we have recognized that despite these issues, the exceptions are well-established. See Ferrier v. Duckworth, 902 F.2d 545, 547–48 (7th Cir. 1990); see also White v. Illinois, 502 U.S. 346, 356 n.8 (1992) (describing excited utterance as a ‘firmly rooted’ exception to the general prohibition against hearsay). Boyce, while pointing to some of this criticism, does not ask us to find the exceptions utterly invalid, and so we proceed to consider his arguments that the exceptions do not apply in the circumstances of his case.”
Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Williams, J.