EvidenceProf Blog

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

Friday, February 14, 2014

A New Theory of Hearsay, Take 4: Further Thoughts on United States v. Boyce

It's interesting that Jeff posted an entry about Judge Posner's concurrence in United States v. Boyce yesterday. My latest set of hearsay posts has come in connection with a CLE I'm conducting in which I argue, in essence, tha Rule 807 should swallow much of Rules 801 through 806. So, it's refreshing to see that such an estemeed jurist apparently holds a similar viewpoint. Here are some more thoughts on Boyce

United States v. Boyce is a garden variety case in which a 911 call was admitted under the present sense impression to the rule against hearsay (Federal Rule of Evidence 803(1)) and/or the excited utterance exception (Federal Rule of Evidence 803(2)). They also again raise the question of why courts are not engaging in a Rule 403 balancing of such statements.

In Boyce,

Sarah Portis called 911 at around 7:45 p.m. on March 27, 2010, asking that police come to her residence because her child's father had just hit her and was “going crazy for no reason.” The 911 operator asked, “Any weapons involved?” to which Portis responded, “Yes.” The operator asked what kind, and Portis said, “A gun.” The operator said, “He has a gun?”, then “Hello?”, and Portis responded, “I, I think so. ‘Cause he just, he just.” After the operator said, “Come on,” Portis responded, “Yes!” twice. The operator again inquired, “Did you see one?” and Portis replied, “Yes!” The operator then cautioned Portis that if she wasn't telling the truth, she could be taken to jail. Portis responded, “I'm positive.” After giving a description of what Boyce was wearing, the operator asked where he was at the moment. Portis responded that she “just ran upstairs to [her] neighbor's house” and didn't know whether Boyce had left her house yet.

The Seventh Circuit found that the district court properly allowed for the admission of this 911 call, citing Rules 803(1) and 803(2), which provide exceptions to the rule against hearsay for

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.  

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

According to the court,

The theory underlying the present sense impression exception “is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.” Fed.R.Evid. 803 advisory committee's note. Along similar lines, the idea behind the excited utterance exception is that “circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.” Id. In other words, the statement must have been a spontaneous reaction to the startling event and not the result of reflective thought....

But that is not to say the spontaneity exceptions in the Federal Rules of Evidence necessarily rest on a sound foundation. We have said before regarding the reasoning behind the present sense impression that “[a]s with much of the folk psychology of evidence, it is difficult to take this rationale entirely seriously, since people are entirely capable of spontaneous lies in emotional circumstances.” See Lust v. Sealy, 383 F.3d 580, 588 (7th Cir.2004) (noting studies showing that less than one second is needed to fabricate a lie) (citing Douglas D. McFarland, Present Sense Impressions Cannot Live in the Past, 28 Fla. St. U.L.Rev. 907, 916 (2001)). As for the excited utterance exception, “The entire basis for the exception may...be questioned. While psychologists would probably concede that excitement minimizes the reflective self-interest influencing the declarant's statements, they have questioned whether this might be outweighed by the distorting effect of shock and excitement upon the declarant's observation and judgement.”...

Nonetheless, we have recognized that despite these issues, the exceptions are well-established....Boyce, while pointing to some of this criticism, does not ask us to find the exceptions utterly invalid, and so we proceed to consider his arguments that the exceptions do not apply in the circumstances of his case.

This is a fairly standard three-part analysis courts utilize when a litigant questions a hearsay exception: (1) state its rationale; (2) question the validity of this rationale; but (3) still apply the exception because it has always been applied. That's fine, but a hearsay exception only solves the reliability issue. In other words, a statement satisfying a hearsay exception is not too unreliable to be admitted.

But what about probative value? If the rationale for a hearsay exception is nonsensical, wouldn't that mean that the statement is, or at least could be, lacking in much probative value? And doesn't that mean that the statement could/should be excluded under Rule 403?



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Let's test out your theory.

John is charged with murder. At his trial, he wants to introduce testimony that, at the time the decedent was killed, an anonymous bystander yelled "the white man stabbed him.". (John is African American.)
Nobody knows who the anonymous declaration was, and, as you've just said, anonymous present-sense impressions are likely to be untrue statements.

So Rule 403 keeps the statement out, and John gets to spend his life in jail??

Posted by: Test it out | Feb 15, 2014 6:04:51 PM

I think that would be a possibility depending upon the circumstances. Some facts we might need to know: (1) How soon after the stabbing do we think the statement was made? (2) What time of day was it? (3) Was it a clear day? (4) Were there any other bystanders who could corroborate the statement? (5) Was the knife ever found? (6) Is there any evidence of an alternate suspect?

I think that at a certain point, yes, the evidence should be excluded, whether it hurts or helps the defendant.

Posted by: Colin Miller | Feb 17, 2014 6:30:50 AM

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