Back to the ... Present .... Sense Impression

Zuanich Law Newsletter
Episode #26: Present Sense Impression
January 21, 2020

Here’s what I don’t understand about Back to the Future.

Marty goes back to 1955 and interferes in his future parents’ lives. Things turn out OK in the end—in fact, better than OK, because George McFly grows a spine and then decks Biff.

This of course transforms George into ultra-cool, so when we see present-day 1985 George at the end of the move, their house is nicer, all the kids have better jobs, and Biff is no longer an asshole but a chastened minion waxing George’s car.

SO THIS IS THE THING … wouldn’t George and Lorraine at some point think: “Our son looks a lot like the guy in 1955 that tried to get us to date, and now he’s our son?”

Odd. Odd. Indeed.

You know what’s also odd …

How so few cases actually deal intelligently and comprehensively with the “present sense impression” hearsay exception under ER 803. That’s right.

The Present Sense Impression

The appellate courts always seem to ignore the “present sense impression.” It seems like, all too often, “the excited utterance” exception gets all the attention and then the court says something like: “oh yeah, we’ve found the statement comes in under the excited hearsay impression, and yeah, it’s probably a present sense impression too, but who cares, since it’s irrelevant.”

The present sense impression feels like 1955 George McFly at the beginning of Back to the Future #1—ignored, stepped on, no respect. And the “excited utterance exception” is like Biff—always demanding attention, arrogant, and throwing his weight around.

What is the Present Sense Impression?

Maybe it’s ignored because it seems so obvious. A present sense impression is a “statement describing or explaining an event or condition made while the declarant was perceiving the event or condition.”

Or, in real English: John is watching Back to the Future and says: “I hate Biff. I’m going to punch his face on the TV screen. Look I’m punching it. Right now. See what I’m doing? I’m describing punching the TV screen and I’m talking about it right now.”

(I didn’t make that quote up. That’s from an actual case. I swear).

But my all-time favorite definition of the PSI exception is: The statement must be a “spontaneous or instinctive utterance of thought, evoked by the occurrence itself, unembellished by premeditation, reflection, or design.”

(I dare you to say this phrase without sounding overly dramatic and pompous).

Just One Case? Really

Most cases analyze PSI exception like this:

Boilerplate definition. Yes, this is a present sense impression
Boilerplate definition. Whatever, we also found the statement is an excited utterance, so who cares?

The only case that gives sustained attention to the rule is State v. Martinez, a 2001 Court of Appeals Division 3 case. (Way to step up Division 3. #crushingit).

Facts: Martinez is convicted of accomplice to possession with intent to sell cocaine. At trial, police officers testified that confidential informant (CI) (Tate) told them that “Ramon” frequently arrived in blue and white Chevy Blazer and CI identified the same Blazer when it arrived. Tate did not testify at trial. (Martinez came to drug deal with Ramon).

But what Tate actually said at trial wasn’t clear because, obviously, he didn’t testify. Did he spontaneously say “That’s the target vehicle” when Ramon’s Blazer arrived? Or he did he merely answer “yes” when the officers asked: “Is that Ramon?”

Holding: For our purposes, the key holding is: Present sense impression is NOT, REPEAT NOT a “statement of memory or belief.” Furthermore, an “answer to a question is NOT a present sense impression.”
To prove that Martinez assisted Ramon in drug dealing, the State had to prove that Ramon was arriving in a particular vehicle and that Ramon had used this particular vehicle to sell drugs to Tate before. If Tate said “That’s the target vehicle,” then the State is sitting pretty. But if Tate just said “yes,” then no dice.

Just saying “yes” would be a present sense impression that Ramon was arriving but “it was only relevant when coupled with his memory and belief” that Ramon was arriving in a particular vehicle from which he had previously sold Tate drugs.

And, for this reason, the Court said, it’s not clear whether Tate made a real “present sense impression” or just a classic inadmissible hearsay statement based on “memory” or “belief.” That’s because a real present sense impression must “grow out of the event reported and in some way characterize the event.”

Saying “yes” doesn’t characterize the event as Martinez being an accomplice to a crime, just that Ramon showed up somewhere and, oh yeah, so did Martinez.

Did you hear from somebody who heard from somebody else in an excited utterance buried inside a medical record wrapped around an ancient document that I had written some good newsletters in the past? Check out my past newsletters.

About Us: Zuanich Law focuses on criminal appeals, DOL appeals, and post-conviction relief, including expunging / vacating / sealing criminal records.

We also handle civil appeals, family law appeals, personal injury law, business litigation, and general civil litigation, including contract disputes, probate, and a lot of other civil stuff that’s too boring to discuss.