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01-2819 U.S. v. Woods

By: dmc-admin//August 26, 2002//

01-2819 U.S. v. Woods

By: dmc-admin//August 26, 2002//

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“Under Federal Rule of Evidence 803, ‘[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter’ is admissible regardless of whether the declarant is available to testify at trial. In determining whether a statement meets the conditions of Rule 803, we have sought to determine, in addition to the predicates listed in the rule, if the statement was made without ‘calculated narration’. United States v. Ruiz, 249 F.3d 643, 646-47 (7th Cir. 2001). The calculated narration consideration is based on the rule’s requirement that the statement be ‘made while the declarant was perceiving the event’. FED. R. EVID. 803(1) (emphasis added). The exception is based on the theory that it is less likely for a declarant to ‘deliberate or conscious[ly] misrepresent’ the event if there is ‘substantial contemporaneity’ between the statement and the event. FED. R. EVID. 803, Advisory Committee Notes (1972); United States v. Parker, 936 F.2d 950, 954 (7th Cir. 1991). A declarant who deliberates about what to say or provides statements for a particular reason creates the possibility that the statements are not contemporaneous, and, more likely, are calculated interpretations of events rather than near simultaneous perceptions.

“Parts of Davis’ narratives are simple descriptions of events as they occurred, which meet the requirements of the rule. See Ruiz, 249 at 646-47. However, some of the narrative statements are clearly addressed to the FBI agents listening in via the microphone. These statements were made for the benefit of the agents-i.e., were calculated and provided for a reason-and are not admissible under the present sense impression exception. Nevertheless, the improper admission of these few short lines of commentary could not have had a substantial influence on the jury’s verdict.”

Affirmed.

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Bauer, J.

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