EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 27, 2008

Extrasensory Impression: Court Finds That Student Complaints About Thanksgiving/Christmas/St. Patrick's Day Posters Were Inadmissible Hearsay

The recent opinion of the United States District Court for the Southern District of New York in Menes v. City University of New York Hunter College, 2008 WL 4349439 (S.D.N.Y. 2008), contains a nice description of the limitations of the present sense impression exception to the rule against hearsay.  In Menes, college accountant Herman Menes brought an action against his employer, Hunter College, and six individuals also employed by Hunter College, alleging, inter alia, that various "religious displays" in the college's bursar's office constituted a governmental endorsement of religion in violation of the Establishment Clause of the First Amendment.

Specifically, Menes claimed among other things that his former supervisor, Tom Crowfis,

     "hung up 'religious posters' 'all over' the area immediately outside the Bursar's Office....These posters were allegedly displayed around St. Patrick's Day, Thanksgiving, and Christmas....While [Menes]  provide[d] almost no details about these posters, he recall[ed] that they included 'images' and 'writing...,' that they had a 'Christian religious tone and message...,' and that there was 'no doubt that they were Christian religious displays.'"

(As I side note, I wonder how the Thanksgiving posters had a Christian religious tone and message.  I know that the Pilgrims were Christians, but I don't really think of Thanksgiving as a Christian holiday.  Maybe the posters praised Jesus like a poster addressed by the Third Circuit when Alito was a judge).

Menes also claimed that Crowfis improperly displayed religious figurines and Christmas trees.  The court, however, granted Hunter College's motion for summary judgment dismissing the complaint after refusing to allow Menes to present evidence concerning students who allegedly "complained about the figurines as they walked past the office window, then entered the Bursar's Office and complained about the figurines, the posters, and the Christmas tree."  Menes had claimed that these students said that they were Jewish and asked "Where are the Jewish displays?"

Hunter College, however, successfully argued that these complaints were inadmissible hearsay.  In accepting this argument, the court noted that Menes had contended that the students' statements were admissible as present sense impressions" under Federal Rule of Evidence 803(1), which provides an exception to the rule against hearsay for "statement[s] describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

The court, however, rejection this contention, concluding that:

      "This exception 'applies only to reports of what the declarant has actually observed through the senses....'  A student's opinion that the displays at issue constituted an endorsement of Christianity does not report a sensory perception or observation but rather the student's own interpretation of these observations."

I agree with the analysis behind this conclusion and also think that it explains why the complaints would have been inadmissible under the state of mind exception to the rule against hearsay, which "is essentially a specialized application of [the present sense impression exception], presented separately to enhance its usefulness and accessibility."



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