Hearsay Exceptions

Present Sense Impression, Excited Utterance, State of Mind, Diagnostic

Statements.

The Present Sense Impression

• a statement describing or explaining an event made while the declarant was perceiving the event or immediately thereafter.

• “predicated on the notion that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes:” Fisher v. Texas

The Excited Utterance Exception

• For the excited utterance exception to apply, three conditions must be met:– the statement must be a product of a startling

occurrence that produces nervous excitement in the declarant and renders the utterance spontaneous and unreflecting,

– the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and

– the statement must relate to the circumstances of the occurrence preceding it.

• Dennis testifies that as he and Walter watched an accident occur that Walter said “That blue car is going too fast to take that curve.”– A. Hearsay– B. Hearsay but admitted as a present sense

impression– C. Hearsay but admissible as an excited utterance.– D. Both B & C.

803(3)Then-Existing Mental, Emotional or Physical Condition

• As its name implies, this exception applies to statements about a declarant’s state of mind at the time the statement is made. Included within this exception are statements about thoughts, emotions, sensations and physical condition.

• A (declarant may say) “I am scared,” but not “I am scared because the defendant threatened me.”

Statements Made for the Purpose of Medical Diagnosis or Treatment

• Statements made to a medical professional:– the declarant’s medical history, past or present

symptoms, pain, sensations, or– the inception or general character of the cause or

external source of such symptoms, pain or sensations,

– the statement must be reasonably pertinent to diagnosis or treatment.

Example

• Doctor testifies that following an automobile accident he examined the patient and the patient told him “My neck and shoulder hurt anytime I turn my head.”– That statement is hearsay but comes in under the

exception.

Exception to the exception

• Once diagnosis has been made and treatment has begun, the rationale behind this exception may disappear.

Prior Recollection Recorded 803(5)

• (1) the witness once had personal knowledge of the writing;

• (2) if the witness now forgets the writing and showing the writing to the witness does not jog his or her memory;

• (3) the writing was either made by the witness or adopted by the witness;

• (4) the writing was made when the event was fresh in the witness’s memory;

• (5) the witness can attest that, when made, the writing was accurate.