Distinctions with a difference: present sense impressions vs. excited utterances

Though they seem similar, there are clear and definitive differences between Rule 803(1) Present Sense Impressions and Rule 803(2) Excited Utterances. If applied correctly, each rule provides an exception to the the rule against hearsay. The former is used in court in the trial of a personal injury case far more than the latter. The present sense impression exception involves a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it”. The rule has two conditions which must be met: first, that the statement explains or describes the event, and second that it is made during or immediately after the event. The excited utterance exception involves “a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Likewise, this rule also has two conditions which must be met: first, that the declarant speaks while excited– under the “ambit of excitement”– by the event and second, that the excited speech “relates” to the event.

The major difference between the two exceptions is the factors which limit their applicability. The present sense impression exception is very much related to time, requiring either that the statement was made during the event or immediately afterwards . Otherwise, the relationship between the description and the event loses credibility. It is for this reason that the rule prohibits any statement of memory or belief. The excited utterance exception requires that the person is still in an excited state when the statement is made.

Don’t forget that neither of these exceptions– as so often happens in law– cannot come into play until the requisite foundation has been laid.