Monday, February 23, 2009
The Sense Of The Past: Third Circuit Corrects Worst Present Sense Impression Ruling I Have Ever Seen
The recent opinion of the Third Circuit in United States v Green, 2009 WL 385423 (3rd Cir. 2009), corrects the worst misapplication of the present sense impression to the rule against hearsay that I have ever seen.
In Green, Artega Green appealed from his conviction for distribution of more than 50 grams of cocaine base in violation of 21 U.S.C. § 841. Green was convicted based upon his alleged involvement with a drug transaction conducted out of a car in May 2002, which the DEA recorded in a "low quality" video and audio recording. The crux of the Government's case was proving the identity of the individual captured on its audio and video evidence, and it sought to do so in part based upon the testimony of Confidential Informant Michael Brown, who participated in the buy.
In a rather dramatic turn of events, however, Michael Brown, the CI involved in the controlled transaction, testified as the sole defense witness. According to Brown, Green never got out of the car on the day of the buy, and the person depicted on the video selling the drugs was an individual known as "Tex." Brown also stated that the DEA agents had used him before in other controlled buys, always with the goal of catching Green on tape selling drugs; but they were never successful, and were upset at Brown because of this.
Thereafter, over Green's vigorous objection, the Government was permitted to introduce as substantive evidence a statement that Brown purportedly made some 50 minutes following the controlled buy in question, after he was brought back to DEA offices, questioned, and debriefed by the case agents. In that statement, which the district court admitted as a present sense impression under Federal Rule of Evidence 803(a)(1), "Brown attested that it was Green who sold him the drugs."
On appeal, Green claimed, inter alia, that this evidentiary ruling was incorrect, and the Third Circuit began by noting that Federal Rule of Evidence 803(a)(1) provides an exception to the rule against hearsay for:
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
The court then properly found that:
The fundamental premise behind this hearsay exception "is that substantial contemporaneity of event and statement minimizes unreliability due to [the declarant's] defective recollection or conscious fabrication...." "The idea of immediacy lies at the heart of the exception," thus, the time requirement underlying the exception "is strict because it is the factor that assures trustworthiness...." Put differently, the temporality requirement must be rigorous because the passage of time-or the lack thereof-is the effective proxy for the reliability of the substance of the declaration; hence the greater the passage of time, the less truthworthy the statement is presumed to be, and the more the scales should tip toward inadmissibility."
The court thereafter agreed with the government that courts have not adopted a bright-line time limit after which a statement is necessarily inadmissible under Rule 803(a)(1), but it noted that it was "nevertheless unaware of any legal authority for the proposition that 50 minutes after the fact." Nonetheless, the Third Circuit found that it did not need to define "the precise temporal limits of application of the present-sense impression exception, nor whether a statement made 50 minutes after the fact could ever be properly admitted under Rule 803(a)(1). According to the court, this was so because:
Brown's statement in this case [wa]s problematic not only because of the lengthy passage of time, but also because the statement was only made after he had been questioned by DEA agents about the details of the transaction the statement purports to describe. This undisputed sequence of events affirmatively indicates that Brown made his statement after he was expressly asked to reflect upon the events in question, and thereby fatally disqualifies the declaration for admission as a present-sense impression."