EvidenceProf Blog

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

Wednesday, February 10, 2021

California's Contemporaneous Statements Exception v. the 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.

Meanwhile, California's counterpart is much narrower. California's contemporaneous statements exception -- California Evidence Code Section 1241 -- states that

Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) Is offered to explain, qualify, or make understandable conduct of the declarant; and
(b) Was made while the declarant was engaged in such conduct.

So, how does California's exception work? Let's take a look at today's opinion by the Court of Appeal, Third District, California in People v. Carey, 2021 WL 486392 (2021).

In Carey

the driver of an Isuzu Rodeo SUV led two Manteca Police Department detectives and other officers on a 2.6 mile vehicle pursuit through residential streets in Manteca. Ultimately, the Isuzu slowed, the driver jumped out and fled on foot, and the Isuzu continued forward and struck a parked vehicle. One of the detectives, who had ten prior contacts with defendant, identified him as the driver of the Isuzu.

During the pursuit, an officer had stated: “looks like one occupant, guys, one male occupant with a baseball cap on.” The detective who identified the defendant, however, "testified the driver was not wearing a hat."

After he was convicted of crimes related to the incident, the defendant appealed, claiming that the trial court improperly excluded the recording of the officer saying the occupant had a baseball cap. He claimed

that Officer Crowley's broadcast fell under the spontaneous statement exception to the hearsay rule. He assert[ed] that Crowley “immediately made the statement of seeing the driver with a baseball cap on as the vehicle pursuit was occurring.” According to defendant, Crowley's statement “was instantaneous and narrated exactly what he observed; the statement was a result of the immediate influence of a police chase.”

The court disagreed, concluding that

Evidence Code Section 1241 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) Is offered to explain, qualify, or make understandable conduct of the declarant; and

(b) Was made while the declarant was engaged in such conduct.”

Defendant asserts that Crowley's statement fell under the contemporaneous statement exception to the hearsay rule set forth in Evidence Code section 1241. He maintains that Crowley's statement “explained the conduct of broadcasting and his identification of the subject the officers were pursuing.”

2. Analysis

Crowley's broadcast did not “explain, qualify, or make understandable conduct” of the declarant....It did not explain conduct Crowley was engaged in at the time the statement was made. It was simply a statement about an observation Crowley purportedly made. Moreover, as the comment to Evidence Code section 1241 makes clear, this section only applies when the statements accompany equivocal or ambiguous conduct, thus the statements are admissible to explain and make such conduct understandable. Leading commentators recognize this....

We conclude that the trial court did not abuse its discretion in refusing to admit Crowley's statement under Evidence Code section 1241.



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Clearly admissible under the FRE. Also an excited utterance?

Posted by: Fred Moss | Feb 13, 2021 9:17:16 AM

A few things:

(1) Sorry to nitpick, but it looks like the defendant's contentions and the court's analysis are mismatched. The contentions—excerpted from p. 10—concern the *spontaneous* statement exception (§ 1240). However, the analysis—excerpted (mostly) from p. 16—concerns the *contemporaneous* statement exception (§ 1241). Given that your post was intended to discuss the latter exception (contemporaneous statement), the relevant contentions were those on p. 16. They consist of just one sentence: "Crowley's statement 'explained the conduct of broadcasting and his identification of the subject the officers were pursuing.'"

(2) Seeing as the court noted the additional requirement of "the statements accompany[ing] equivocal or ambiguous conduct" as gleaned from the comment, then it's even more narrow than would be suggested by the text alone!

(3) As noted above, the CA analog to excited utterance (spontaneous statement) was in fact argued by the defendant, but the court rejected it. It said (in part, on p. 12): "[A]ll pursuits are not the same and defendant has not directed us to any case law to establish, essentially, that a police pursuit is stressful and exciting as a matter of law. Indeed, as far as police pursuits go, from our review of the video recording, this one appears to be relatively unexciting." That analysis makes sense to me. I suspect the outcome would be the same under the FRE too.

(4) CA seems to allow prior inconsistent statements for both impeachment and substantive purposes, so why wasn't that enough here? I don't get why the defendant had to argue these other avenues to admissibility.

Thanks for posting this!

Posted by: hardreaders | Feb 13, 2021 3:12:22 PM

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