Present Sense Impressions & Excited Utterances under Rule 803

Hearsay is a statement, other than one made by the declarant while testifying at the hearing or trial, offered in evidence to prove the truth of the matter asserted. A statement is an oral or written assertion, or nonverbal conduct of a person intended as an assertion. Generally, hearsay is not admissible except as provided by statute of the Rules of Evidence. Two common exceptions to the rule apply to statements made while immediately perceiving the event or condition and statements made while still under the stress or excitement of the event. These exceptions are referred to as “Present Sense Impressions” and “Excited Utterances” and are set forth in Rule 803 (1) – (2).

Present Sense Impressions

A present sense impression is a statement (1) describing or explaining an event or condition (2) made while the declarant was perceiving the event or condition, or immediately thereafter. The basis for this exception is the closeness in time between the event and the declarant’s statement diminishes the likelihood of deliberate and conscious fabrication.

Under the plain language of Rule 803(1), a statement made while the event is occurring would be admissible. But how long is “or immediately thereafter”? There are no rigid rules that delineate the temporal connection between the statement and event in question. Statements made within a few minutes of an event likely fall under the rule. See, State v. Odom, 316 N.C. 306 (1986) (officer was on the scene in 10 minutes, and then eyewitness gave statement); State v. Morgan, 359 N.C. 131 (2004) witness’s statement made after the witness drove half a mile was admissible as time witness had while travelling was not likely to afford opportunity to deliberately misrepresent defendant’s condition).

On the other hand, statements made hours or even days after the event are less likely to fit the exception. See, State v. Little, 191 N.C. App. 655 (2008) (statement made to SBI agent several hours after shooting incident was not a present sense impression); State v. Maness, 321 N.C. 454 (1988) (statement made nine days later could not be considered “immediately thereafter).

Excited Utterances

Rule 803(2) defines an excited utterance as a statement (1) relating to a startling event or condition made while (2) the declarant was under the stress of excitement caused by the event or condition. Excited utterances are admissible as exceptions to the rule against hearsay under the theory that the startling event temporarily suspends the capacity of reflective thought and produces spontaneous and sincere utterances.

For excited utterances, the element of time is not always material. “The modern trend is to consider whether the delay in making the statement provided an opportunity to manufacture or fabricate the statement.” State v. Smith, 315 N.C. 76 (1985). The trial court should examine the nature of the event, the degree of excitement the declarant is under, and whether the declarant had time to “cool down” and reflect after the event. Trial courts have admitted statements made 20 minutes after a shooting. State v. Allen, 162 N.C. App. 587 (2004). On the other hand, Courts have found statements made 25 minutes after a fight occurred were inadmissible. State v. Safrit, 145 N.C. App. 541 (2001). Courts have also found statements made by children up to 10 hours after an event were reliable under the excited utterance exception. State v. Jones, 8 N.C. App. 584 (1988).

Can Present Sense Impressions and Excited Utterances be in Response to Questioning?

Yes, they can. The focus is on the startling event and whether the declarant is still under the condition of the event, not on whether the statement is in response to a question. The fact a statement was made in response to a question does not make it inadmissible.

Case law is clear that statements made in response to a question do not necessarily lack spontaneity. State v. Lowe, 154 N.C. App. 607 (2002). The critical determination is whether the statement was made under conditions which demonstrate the declarant lacked the “opportunity to fabricate or contrive” the statement. State v. Wright, 151 N.C. App. 493 (2002).

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