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Univ. of South Carolina School of Law

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Wednesday, August 1, 2012

History Lesson: Commonwealth Court Of Pennsylvania Opinion Digs Into Origins Of Present Sense Impression Exception

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

In Bell Beverage v. Unemployment Compensation Bd. of Review, 2012 WL 3030285 (Pa.Comwlth. 2012), the Commonwealth Court of Pennsylvania found that statements constituted present sense impressions but, more importantly, gave a nice history of Rule 803(1).

In Bell Beverage, the court found that statements qualified as present sense impressions "because they were contemporaneously made as the event was unfolding." The interesting part of Bell Beverage, though, was its citation to its prior opinion in Municipality of Bethel Park v. Workmen's Compensation Appeal Board (Willman), 161 Pa.Cmwlth.274, 636 A.2d 1254, 1258 (Pa.Cmwlth.1994).

As the Bell Beverage court noted, in Bethel Park,

In discussing the history of this exception, the Court noted that the present sense impression exception was slow in developing from the time the exception was first espoused by Professor James Thayer in 1881: 

Our Supreme Court first employed the exception in Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974), a plurality opinion which relied on [an article by Edmund] Morgan and Federal Rule of Evidence 803(1) for the proposition that there should be a hearsay exception for declarations concerning non-exciting events either made contemporaneously or immediately after the event is perceived. In Coleman, a murder victim's mother testified to the contents of a telephone conversation she had with the victim in which the victim indicated that the appellant was going to disconnect the telephone and kill her. The plurality adopted the Morgan rational[e] that the assured reliability of a statement comes from it being made without time for retrospective deliberation and found that the conversation was a contemporaneous account of the event taking place. However, without stating that anything other than this contemporaneousness was required, the Court went on to note that the appellant's admission that he had argued with the deceased and the mother's hearing his voice in the background corroborated the hearsay declaration.  

The exception was not officially adopted by the Supreme Court until its decision in Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987), when, citing Coleman, the Court held that a description of a non-exciting event made either during the event or immediately thereafter was to be admissible under the present sense impression exception. There, the Court made no mention of whether there was any corroboration to the statement and relied solely on its contemporaneousness....  

We believe that in Peterkin, our Supreme Court adopted the rational[e] that contemporaneousness alone insures reliability sufficient to counterbalance a statement's hearsay nature. Accordingly, whether a statement comes within the present sense impression exception depends solely on whether it was made contemporaneously with the event described and there is no requirement of corroborating evidence.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/08/8031-bell-beverage-v-unemployment-compensation-bd-of-review-a3d-2012-wl-3030285pacmwlth2012.html

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