EvidenceProf Blog

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

Tuesday, February 26, 2013

All Sense of Proportion: Can a Probable Cause Affidavit Qualify as a Present Sense Impression?

Similar to its federal counterpartIndiana Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter.

And, similar to its federal counterpartIndiana Rule of Evidence 803(8), provides an exception to the rule against hearsay (unless the sources of information or other circumstances indicate lack of trustworthiness)

[for] records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

So, let's say that a police officer fills out a probable cause affidavit while waiting 20 minutes before administering a chemical breath test on a suspect. Would that affidavit be admissible under Rule 803(1) or inadmissible under Rule 803(8)? Let's take a look at the recent opinion of the Court of Appeals of Indiana in Jones v. State, 2013 WL 500799 (Ind.App. 2013).

In Jones

On May 29, 2010, at approximately 8:26 p.m., Indiana State Police Trooper Dan Madison was traveling northbound on Emerson Avenue and was stopped at a traffic light at Southeastern Avenue in Marion County, Indiana. After the light turned green, Trooper Madison began to proceed through the intersection, noticed a car driven by Jones approaching from his right side on Southeastern, and had to brake and let Jones pass because Jones did not stop at the red light. Jones passed "right in front" of Trooper Madison's police car and turned right to head northbound on Emerson, and Trooper Madison began to follow him. Transcript at 38. Trooper Madison observed Jones weaving in and out of his lane, crossing the center line twice. He also observed Jones attempt to pass in a no-passing zone and drift onto the shoulder of the road, almost hitting parked vehicles. When Jones attempted to pass in the no-passing zone, Trooper Madison was forced to swerve into oncoming traffic with Jones to alert the drivers to avoid Jones's vehicle, and he then initiated a traffic stop of Jones.

Jones and Madison gave conflicting accounts of what ensued, but let's take Madison at his word. According to Madison, while he was waiting the prescribed 20 minutes to administer a chemical breath test on Jones, he filled out a probable cause affidavit summarizing what he was observing. The prosecution later introduced this affidavit at Jones' trial for operating a vehicle while intoxicated, and Jones was eventually convicted.

Jones later appealed, claiming that the affidavit was improperly admitted. The State countered that "the probable cause affidavit was properly admitted as a present sense impression under Ind. Evidence Rule 803(8)." Jones disagreed, arguing 

that the State cite[d] no case law for admitting a probable cause affidavit under the present sense impression hearsay exception..., and that Evidence Rule 803(8), the public records hearsay exception, specifically states that probable cause affidavits do not qualify under the rule and accordingly "[r]eading Rule 803 as a whole, it would make little sense to affirmatively exclude probable cause affidavits from one exception, only to allow them to be admitted under another."

And while the Court of Appeals of Indiana did not resolve this issue, finding that any error in admitting the affidavit would have been harmless, I side with Jones on the legal issue. A present sense impression is thought to be reliable because a person is reporting on events that they are observing or just observed, meaning that memory shouldn't be much of an issue. Conversely, police reports and affidavits are thought to be unreliable because the officer has a motive to slant them in favor of the government and against the suspect. Therefore, a police affidavit that satisfies the elements of Rule 803(1) is still unreliable based upon Rule 803(8).



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