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Univ. of South Carolina School of Law

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Monday, May 27, 2013

Gone Fishin': Can an Affidavit Ever Qualify as a Present Sense Impression?

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.

Can an affidavit qualify as a "present sense impression" under Rule 803(1)? According to dicta in Catfish Farmers of America v. United States, 2013 WL 2250601 (CIT 2013), the answer is "yes." I disagree.

In Catfish Farmers, the Department of

Commerce selected surrogate values for fish waste based upon Philippine import statistics for Harmonized Tariff Schedule ("HTS") category 0304.90 (other fish meat of marine fish) maintained in the World Trade Atlas ("WTA"), and it rejected price quotes on the record the plaintiffs had obtained from Vitarich Corporation, a Philippine fish and seafood processor, consisting of an April 7, 2010 price list with per kilogram pickup prices of Pangasius fish waste (and trimmings, and fish skins) in Philippine pesos.

In rejecting the price quotes obtained from Vitarich, the Department of Commerce relied in part upon the affidavit of a Bangladeshi attorney who had spoken to the Bangladeshi faremers and an official with the Bangladesh Ministry of Agriculture's Department of Agricultural Marketing.

The plaintiffs countered that the attorney's affidavit was "self-serving" and inadmissible hearsay, and the Court of International Trade correctly responded that the Federal Rules of Evidence do not apply to Department of Commerce hearings.

But then, in dicta, the court observed that 

Even then, and if pursuant thereto, one exception to Fed.R.Evid. 802's proscription against the admissibility of hearsay, of course, is "a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it". Fed.R.Evid. 803(1).

This statement certainly seems wrongheaded to me. It is generally understood that a present sense impression must be made within seconds, or, at the very most, minutes after perceiving an event or condition. As the Supreme Court of New Jersey noted in State ex rel. J.A., 949 A.2d 790 (N.J. 2008),

When considering whether a statement is a present sense impression, it is not hairsplitting to recognize a distinction between a matter of seconds, however many they may be, and an interval of as much as ten minutes separating a recollection from the observation. For purposes of a present sense impression, a declarant's statement that "the blue sports car is going through the red light” or that “the blue sports car just went through the red light" (seconds ago) is different from a declarant's statement that "the blue sports car went through the red light ten minutes ago."

Given that the attorney almost certainly completed his affidavit hours if not days or weeks after talking with the official and the farmers, it is difficult to see how the affidavit could qualify as a present sense impression. Moreover, the entire point of allowing for the admission of present sense impressions is that they are made contemporaneously, without the chance for reflection and thus fabrication. The entire point of an affidavit is to reflect upon past events such that the affiants reflections can be used in support of a legal charge, claim, or defense. Given this, I don't think that an affidavit should ever qualify as a present sense impression.

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/05/federal-rule-of-evidence-8031provides-an-exception-to-the-rule-against-hearsay-for-a-statement-describing-or-explaining.html

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