708.2Present Sense Impression [Rule 803(1)]
- A statement made contemporaneously with a perceived event or occurrence may be excluded from the hearsay rules as a present sense impression.
- The statement must describe or explain the event or occurrence and be made during or immediately after the perceived event or occurrence.
The Basic Rule
Rule 803(1) – Present Sense Impression
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
G.S. 8C-803(1). The rationale for this exception is that the “substantial contemporaneity” of the event or condition and the declarant’s statement describing or explaining that event or condition negates “the likelihood of deliberate or conscious misrepresentation.” G.S. 8C-803, Official Commentary; State v. Morgan, 359 N.C. 131 (2004).
Requirements for Admissibility
The rule sets forth two key requirements for a statement to be admissible under the present sense impression exception: (i) the statement must describe or explain an event or condition; and (ii) it must be made while perceiving the event or immediately afterward. G.S. 8C-803(1).
Describing or Explaining
First, the statement must actually describe or explain the event or condition. G.S. 8C-803(1). See, e.g., State v. Capers, 208 N.C. App. 605 (2010) (victim’s statement identifying the defendant as the shooter was a present sense impression); State v. Morgan, 359 N.C. 131 (2004) (admitting statement asking for help because defendant was “tripping”); State v. Taylor, 344 N.C. 31 (1996) (admitting declarant’s statement that defendant was “after” two people, where declarant saw him with a shotgun); State v. Cummings, 326 N.C. 298 (1990) (allowing statement where declarant “came over to her mother's house crying and saying that defendant had kicked her out of his house”).
During or Immediately After
Second, the statement must have been made either “while…perceiving” the event or condition, or “immediately thereafter.” G.S. 8C-803(1). See State v. Williams, 185 N.C. App. 318 (2007) (victim’s statements on the phone to a friend, made immediately before defendant and accomplice showed up at her house and less than two hours after accomplice contacted declarant, was admissible as present sense impression); State v. Pickens, 346 N.C. 628 (1997) (allowing statements of witnesses made immediately after witnessing shooting); State v. Reid, 322 N.C. 309 (1988) (where the event and the statement “occurred simultaneously and the statement was in explanation,” the statement “was admissible under the present sense exception to the hearsay rule”); State v. Odom, 316 N.C. 306 (1986) (where declarant contacted police immediately after abduction, and police arrived within 10 minutes, the declarant’s statement “was not too remote to be admissible under Rule 803(1)”).
There is no precise time limit for what qualifies as “immediately thereafter,” but a statement made after enough time has passed so that the declarant has had an opportunity to deliberate and reflect before speaking will usually not fall within this exception. See, e.g., State v. Little, 191 N.C. App. 655 (2008) (excluding witness statements made hours after the event, while seated in officer’s vehicle); State v. Smith, 152 N.C. App. 29 (2002) (excluding statement made later that afternoon); State v. Maness, 321 N.C. 454 (1988) (excluding statements made nine days later).
On the other hand, even if some period of time has passed, a statement may still qualify as a present sense impression if the intervening events and reason for the delay indicate that it is unlikely the declarant had an opportunity to engage in conscious and deliberate misrepresentation. See, e.g., State v. Capers, 208 N.C. App. 605 (2010) (allowing statement made 50 minutes after shooting, where victim was in the hospital receiving life-saving treatment during that time); State v. Morgan, 359 N.C. 131 (2004) (passage of time was due to the fact that declarant had to travel half a mile to ask for help, and the likelihood that this afforded an opportunity for declarant to reflect and misrepresent his observations was “remote”); State v. Cummings, 326 N.C. 298 (1990) ("Karen's statement was made in close proximity to the event—a reasonable inference would be the length of time it took to drive from Willow Springs to her mother's house in Raleigh. Under the particular facts of this case, Karen's statement to her mother was made sufficiently close to the event to be admissible as present sense impressions under Rule 803(1).").