Intro to the Federal Rules of Evidence - 57

D. HEARSAY EXCEPTIONS: AVAILABILITY IMMATERIAL (FRE 803)

1. In General
a. Justification
Under appropriate circumstances, a hearsay statement may possess circumstantial guarantee of trustworthiness sufficient to justify non-production of the declarant in person at the trial even though he may be available. And the difficulty of proving unavailability or subpoenaing witnesses is likely to outweigh the incremental benefits of courtroom testimony.

b. The firsthand knowledge & non-expert opinion rules
In general, D’s firsthand knowledge is required. But non-expert opinion rules apply to at-trial statements, not out-of-court statements.

2. Present Sense Impressions (FRE 803(1))
a. Definition
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

b. Justification
A high degree of reliability: spontaneous – no danger of fabrication; speedy – no danger of any defect from memory; unexcited declarant – reliable.

c. Requirements
i) Subject matter: describing/ explaining an event or condition
Whereas the excited utterance need not describe the exciting event (it must merely take place under the influence of that event), the present sense impression must describe or explain the event that the declarant has perceived.

ii) Time: immediacy
In contrast to the excited utterance exception, for the present sense expression exception, no material time may pass between the event being perceived and the declarant’s statement about it.

iii) Personal knowledge: “perceiving”
The declarant must have perceived the event, rather than have learned about it from some other means (e.g., reading the newspaper).