Chapter 5: Hearsay Exceptions: Availability Immaterial ^[1]

I.   Introduction

§5.1   Trial attorneys should identify and be prepared for admissibility challenges as part of their trial preparation. And hearsay is no exception. Hearsay issues can be resolved by stipulation in the pretrial order (say, for instance, the admissibility of medical records under MRE 803(6) in a no-fault case). The goal of this chapter is to prepare the reader to address issues that arise concerning the hearsay exceptions found in MRE 803, 803A, 805, and 807 (all of which apply regardless of the availability of the declarant). Chapter 6 discusses exceptions to the hearsay rule that apply only when the declarant is unavailable.

Each exception discussed in this chapter has its roots in circumstances surrounding the out-of-court statement that presumes some level of reliability and trustworthiness. Whether the circumstance is the immediacy of the statement, such as an excited utterance under MRE 803(2) or a regularly conducted public activity, like official public records under MRE 803(8), each exception has foundational requirements every trial attorney should know.

For a more detailed discussion of the exceptions covered in this chapter, see MRE 803, 803A, 805, and 807 in Kevin M. Carlson et al, Michigan Courtroom Evidence Annotated (ICLE 6th ed).

II.   Present Sense Impression

A. Relevant Evidentiary Rule

§5.2  

MRE 803 Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

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B. Explanation

§5.3   MRE 803 sets forth exceptions to the hearsay rule that apply regardless of whether the declarant is available to testify. The present sense impression exception, MRE 803(1), provides for the admission into evidence of statements that describe or explain an event or condition, as long as the statement is made during or immediately after the declarant’s observation of the event or condition.

The reliability of such a statement is presumed because (1) the near simultaneity of the event and the description/statement leaves no time for reflection or calculated misstatement, (2) the situation results in a minimal likelihood of calculated misstatements, and (3) the statement is usually made in the presence of another who had equal opportunity to observe the event and to verify the accuracy of the statement. People v Hendrickson, 459 Mich 229, 586 NW2d 906 (1998); Hewitt v Grand Trunk W RR Co, 123 Mich App 309, 333 NW2d 264 (1983).

To be admissible as substantive evidence, a statement of a present sense impression must have been made while the declarant perceived the event or “immediately after.” MRE 803(1). However, the Michigan Court of Appeals has stated that it “is not overly literal in construing the phrase ‘immediately thereafter’ and will allow a statement made less than a minute or even several minutes after the event observed.” People v Bowman, 254 Mich App 142, 145, 656 NW2d 835 (2002).

The length of time between event and declaration that satisfies the “immediately thereafter” requirement is determined case by case. Johnson v White, 430 Mich 47, 420 NW2d 87 (1988) (four-minute interval qualified as immediately thereafter); Bowman (statement made following drive of indeterminate length from one house to another did not fall within exception); People v Jensen, 222 Mich App 575, 564 NW2d 192 (1997) (one-day interval was not contemporaneous with event), vacated in part and remanded on other grounds, 456 Mich 935, 575 NW2d 552 (1998); People v Cross, 202 Mich App 138, 508 NW2d 144 (1993) (interval of less than one minute fell within exception). On the other hand, an excited utterance, governed by MRE 803(2), may be made days after the event as long as the declarant is still under the stress or excitement of the event or condition. Berryman v K Mart Corp, 193 Mich App 88, 483 NW2d 642 (1992). See §§5.6–5.9 for more on MRE 803(2).

Finally, to be admissible, a statement of a present sense impression must be corroborated by additional evidence that ensures the reliability of the statement. Hendrickson, 459 Mich at 238. Like the excited utterance hearsay exception, the present sense impression statement alone is insufficient proof of its own underlying event. In Hendrickson, for example, photographs of the victim taken six hours after the alleged assault and battery constituted sufficient corroboration of the victim’s statement to a 911 operator that she was beaten by defendant. By comparison, however, in People v Barrett, 480 Mich 125, 747 NW2d 797 (2008), which dealt with the admissibility of an excited utterance, the court found that a statement itself may be considered as part of the evidence of the underlying event.

The present sense impression exception is also similar to the state of mind exception to the hearsay rule, MRE 803(3). See §§5.10–5.13. For a detailed discussion of the present sense impression exception and cases interpreting it, see MRE 803(1) in Kevin M. Carlson et al, Michigan Courtroom Evidence Annotated (ICLE 6th ed).

C. Foundation Requirements

§5.4  

1. The declarant must be an eyewitness to, or a participant in, the event or condition about which the statement is made.
2. The statement must be limited to a description or explanation of the event or condition perceived.
3. The statement must be substantially contemporaneous with the event or condition perceived.
4. There must be additional evidence of the underlying event or condition.

D. Sample Witness Examination

§5.5