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A lapse in time
Prof. Colin Miller brings us this note.
Similar to its federal counterpart, Idaho 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.
The first part of this “present sense impression” exception is easy enough. If I tell my friend, “My stomach hurts” while my stomach hurts, my statement is a present sense impression because I am describing/explaining a condition while I am perceiving it. Similarly, if I say to my friend, “Hey, that’s Nancy” while I see Nancy crossing the street, my statement is a present sense impression because I am describing/explaining an event while I am perceiving it. But what if I told my friend, “My stomach hurt x minutes ago” or “I saw Nancy crossing the street x minutes ago.” How many minutes can pass before my statement is no longer made immediately after I perceived the event or condition?
Previously, I’ve noted that I’ve seen courts admit present sense impressions made up to 23 minutes after perceiving an event or condition. See United States v. Blakey, 607 F.2d 779 (7th Cir.1979). This would be consistent with the recent opinion of the Supreme Court of Idaho in Cazier Revocable Trust v. Cazier, 2020 WL 3989094 (Idaho 2020). In Cazier, a party sought to introduce a February 21, 2019 affidavit about phone calls that occurred on September 18, 2018 and October 11, 2018.
The Supreme Court of Idaho held that the affidavit clearly was not a present sense impression because
time lapses as “slight” as forty-five minutes have been considered too long to invoke the protection of I.R.E. 803(1). See State v. Woodbury, 127 Idaho 757, 762, 905 P.2d 1066, 1071 (Ct. App. 1995) (Walters, J., concurring) (citing U.S. v. Cruz, 765 F.2d 1020, 1024 (11th Cir. 1985)) (“Testimony in this case indicated that Hansen’s statement to Officer Knight was made about forty-five minutes after the attack. This time span does not qualify as ‘immediately’ after the event.”).