In both criminal trials as well as the civil cases often the outcome hinges on a witness statement that is hearsay (out of court statement) but admissible under one of the exceptions.

The Court of Appeals in Sims v. U.S., decided on August 15, 2019, expanded and explained in details the admissibility of the “present sense impression” exception to the hearsay rule.

Sims was convicted of murder at trial and a significant corroborating evidence was introduced through the present sense impression statement/exception to the hearsay rule.

One of witnesses at trial testified that he arrived to the scene shortly after the shooting and heard another person (the declarant) state that Arik Sims was the shooter.

Sims essentially argued on appeal that the hearsay statement made by an unknown declarant: “it was the fat-face, light-skinned dude[,] . . . Arik [Sims],” and admitted as a present sense impression was erroneous and unqualified.

The Court of Appeals agreed and reversed.

Present Sense Impression:

Admissibility of a hearsay statement requires a proper foundation.  The Court has recognized the admissibility of certain hearsay statements under the present sense impression exception as requiring:

• Describing or explaining events which the declarant is observing at the time he or she makes the declaration or immediately thereafter;
• Proof that the statement was made “contemporaneously with the events described” would be essential because this is a foundational justification for the reliability of hearsay proffered under this exception; and
• In addition to contemporaneity and spontaneity, the trial court must be assured that the declarant of the hearsay statement personally perceived the event described.

That is, defining a present sense impression in short as: a statement describing or explaining events which the declarant is observing at the time he or she makes the declaration or immediately thereafter.

The proponent of proffered hearsay bears justifying its admission by burden of proof that is a preponderance of the evidence.

Here, the government proffered that an unidentified declarant said, “it was the fat-face, light-skinned dude[,] . . . Arik,” The government’s evidence however did not substantiate its proffer as none of the witnesses established by a preponderance of the evidence that the unidentified declarant had seen the shooting and or had spoken from personal knowledge.

That is, there is no direct evidence in the record that the unidentified declarant saw the shooting.

Uncertainty as to when the statement was made further diminishes the reliability of the statement — to infer the declarant had personal knowledge based on the declarant’s supposed proximity to the scene of the shooting.

Adoptive Admission:

There was also evidence that Sims admitted to the crime by adopting statement of others.

The adopted statements of another person may be admitted in evidence as an exception to the hearsay rule if only it clearly appears that the accused understood and unambiguously assented to the statements.

Here there is no such evidence that Sims admitted and agreed to statement made by friends connecting him to the shooting.

Because these admissions were material and harmful and there is high probability that the erroneously admitted hearsay were material to the jury’s rendering a guilty verdict, a reversal is warranted.

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