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In a personal injury case, the defendant called a bystander to testify that, at the time of the accident, he and his father were standing on the sidewalk at the corner of the intersection. Just before the collision, the bystander’s father stated that the taxi just ran the red light. The bystander’s father has since died.
Should the judge permit the bystander testify to what his father stated before the accident?
(A) Yes, because the bystander’s father is unavailable.
(B) Yes, because it is a present sense impression.
(C) Yes, because it is an excited utterance.
(D) No, because the out-of-court declarant could have confused the taxi with the defendant’s car.
The Answer is : B.
The present sense impression exception to the hearsay rule embodied in FRE Â§803(1) requires only that the declarant describe or explain an event or condition while he is perceiving it or immediately thereafter. The excited utterance exception in FRE Â§803(2) requires that the statement relate to a startling event or condition and be made while the declarant is under the stress of the exciting event. Neither requires that the declarant be unavailable before the statement will be admitted.
Of choices (B) and (C), choice (B) more nearly fits the situation here since the statement was made contemporaneously with the event and the event would not be such a startling event to observe, unless the car were careening toward the bystander and his father, that it would fit into the excited utterance exception. Choice (B) is correct.
Choice (A) is incorrect because the bystander’s father need not be unavailable before his statement will be admitted as a present sense impression. When the unavailability of the declarant is offered as an option, it is helpful to remember the three main exceptions under FRE Â§804, which require the unavailability of the declarant. These are: prior recorded testimony; declaration against interest; and dying declaration. Unless the statement fits one of these categories, it is likely that the choice requiring unavailability is incorrect.
Choice (D) is incorrect because the statement is admissible under the present sense impression exception to the hearsay rule. Moreover, that the declarant could be mistaken is not relevant to the admission of a statement based on this exception. The guarantees of reliability are that there is no memory problem, since the statement occurs contemporaneously with the event, and that the person to whom the statement is made, in this case the bystander, is usually in a position to check its accuracy.
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