Northern District of Indiana Finds 911 Call Made About 5 Minutes After An Assault Qualified 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.

So, does a 911 call made about five minutes after an incident qualify as a "present sense impression" made "immediately after the declarant perceived it"? That was the question addressed by the United States District Court for the Northern District of Indiana in its recent opinion in United States v. Wade, 2024 WL 397546 (N.D. Ind. 2024).

In Wade, 

E.K. called 911 after Mr. Wade allegedly assaulted her during an argument at her home. This assault included Mr. Wade pulling a gun and pointing it at her. After being assaulted E.K. then retreated from her home, wearing only a robe, and barricaded herself in her car in her driveway before calling 911. In the 911 call E.K. told the dispatcher she had been assaulted by Mr. Wade approximately five minutes before making the call and that he was still in her house.

When asked by the dispatcher whether any weapons were involved, E.K. reported that Mr. Wade had a gun. Officers responding to the call detained Mr. Wade and searched E.K.’s home for the gun. Officers found the gun in the house, and in proximity to marijuana and cocaine. The instant prosecution was later brought against Mr. Wade based on his possession of the firearm on December 9, 2021.

In finding E.K.'s 911 call admissible, the court ruled that 

As to the timing question, the Court finds the 911 call was sufficiently contemporaneous. E.K. indicated that she was making the call approximately five minutes after her altercation with Mr. Wade. Rule 803(1) is a practical rule which recognizes that “in many, if not most instances, precise contemporaneity is not possible and hence a slight lapse is allowable.”... In fact, it may neither be feasible or wise to attempt to report events while one is under acute threat of harm from ongoing events....A lapse of five minutes falls well within the timing requirements of 803(1) as interpreted by the Seventh Circuit and its sister courts....Further, E.K. made the 911 call from her car in the driveway of her residence where she had just been assaulted and where her assailant was still present, with a gun. It would be possible from these facts to conclude the event was still ongoing as E.K. was physically proximate to her armed assailant and at risk of further harm. In either case, whether the event was ongoing as E.K. gave her description, or it had concluded five minutes prior, this is sufficiently contemporaneous for Rule 803(1).

-CM