Hearsay and circumstances of its admissibility - Present sense impressions and excited utterances

Learning Outcomes

This article examines two important exceptions to the hearsay rule: Present Sense Impression (FRE 803(1)) and Excited Utterance (FRE 803(2)). It clarifies the definition, fundamental rationale, and specific requirements for each exception. After reviewing this material, you will be able to distinguish between these two exceptions and apply their respective elements to evaluate the admissibility of statements in MBE fact patterns.

MBE Syllabus

For the MBE, you are required to understand the major exceptions to the hearsay rule where the declarant's availability is immaterial. This article focuses specifically on your ability to:

  • Identify statements qualifying as Present Sense Impressions under FRE 803(1).
  • Recognize the requirements for an Excited Utterance under FRE 803(2).
  • Distinguish between the temporal requirements for Present Sense Impressions and Excited Utterances.
  • Analyze the relationship between the statement and the event perceived or experienced for each exception.
  • Assess whether the declarant was under the stress of excitement for the Excited Utterance exception.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. While watching a fast-moving car race down the street, a bystander says into his phone, "Wow, that blue car is going at least 90 miles per hour!" In a subsequent personal injury lawsuit, this statement is likely admissible under which hearsay exception?
    1. Excited Utterance
    2. Present Sense Impression
    3. State of Mind
    4. Recorded Recollection
  2. Immediately after being pulled from a burning building, a severely burned victim screams, "My neighbor set the fire! He said he'd get me!" This statement, offered in an arson trial against the neighbor, is most likely admissible as:
    1. Dying Declaration
    2. Present Sense Impression
    3. Excited Utterance
    4. Statement Against Interest
  3. Which factor is essential for an Excited Utterance but NOT for a Present Sense Impression?
    1. The statement must describe an event.
    2. The declarant must have perceived the event.
    3. The declarant must be under the stress of excitement caused by a startling event.
    4. The statement must be made close in time to the event.

Introduction

The rule against hearsay generally excludes out-of-court statements offered to prove the truth of the matter asserted because such statements lack the reliability safeguards of in-court testimony (oath, cross-examination, demeanor observation). However, numerous exceptions exist where circumstances suggest the statement possesses sufficient indicia of trustworthiness. Federal Rules of Evidence (FRE) 803 provides exceptions for which the availability of the declarant is immaterial. Two frequently tested exceptions within this rule are Present Sense Impression (FRE 803(1)) and Excited Utterance (FRE 803(2)). Both rely on the spontaneity of the statement relative to the event perceived as the basis for their presumed reliability.

FRE 803(1): Present Sense Impression

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it, is not excluded by the hearsay rule. The core rationale is that substantial contemporaneity between the event and the statement minimizes the risk of memory lapse or calculated misstatement.

Key Term: Present Sense Impression A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Key Elements (Present Sense Impression)

  1. Description or Explanation: The statement must describe or explain the event or condition. It cannot be mere narrative about past events.
  2. Perception: The declarant must have personally perceived the event or condition being described or explained.
  3. Contemporaneity: The statement must be made while the declarant is perceiving the event, or immediately thereafter. This temporal requirement is strict. Even a slight delay can render the exception inapplicable if it allows time for reflection.

Worked Example 1.1

Pedestrian is talking on her phone while walking down the street. She says to her friend, "Hold on, there's a red sports car running the stop sign right now!" Seconds later, the sports car collides with another vehicle. At trial for the driver of the sports car, the friend's testimony repeating Pedestrian's statement is offered. Is it admissible?

Answer: Yes, likely admissible under FRE 803(1). Pedestrian's statement described an event (car running stop sign) while she was perceiving it ("right now!"). The statement describes the event contemporaneously.

FRE 803(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, is not excluded by the hearsay rule. The rationale here is that the stress of excitement temporarily stills the capacity for reflection, making fabrication unlikely.

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

Key Term: Startling Event An occurrence sufficiently shocking or surprising to suspend the declarant's powers of reflection and fabrication.

Key Elements (Excited Utterance)

  1. Startling Event: There must have been an event sufficiently startling to shock or excite the declarant.
  2. Statement Relates to Event: The statement must relate to the startling event or condition.
  3. Under Stress of Excitement: The declarant must have made the statement while still under the stress or excitement caused by the event. The time lapse between the event and the statement is relevant but not solely determinative; the key is whether the declarant remained dominated by the excitement of the event.

Worked Example 1.2

Witness sees a car crash. Visibly shaken and trembling, Witness runs over to a police officer who arrives 10 minutes later and exclaims, "That green car just blew through the intersection and hit the cyclist! I can't believe it!" Is Witness's statement admissible?

Answer: Yes, likely admissible under FRE 803(2). The car crash is a startling event. The statement relates directly to the crash. Although made 10 minutes later, Witness's physical state (visibly shaken, trembling) indicates they were likely still under the stress of excitement caused by witnessing the crash when the statement was made.

Comparing the Exceptions

While both exceptions rely on spontaneity, they differ in key ways:

  • Nature of Event: Excited Utterance requires a startling event capable of causing stress. Present Sense Impression applies to any event or condition, startling or not.
  • Timing: Present Sense Impression demands stricter contemporaneity (while perceiving or immediately after). Excited Utterance allows for a slightly longer time lapse, provided the declarant remains under the stress of excitement.
  • Content: Present Sense Impressions must describe or explain the event. Excited Utterances need only relate to the startling event, potentially allowing for broader subject matter (e.g., identifying the cause or perpetrator).

Exam Warning

Pay close attention to the timing described in the fact pattern. A statement made even a few minutes after an event might qualify as an Excited Utterance if the declarant is still demonstrably upset, but it likely will not qualify as a Present Sense Impression due to the "immediately thereafter" requirement. Also, verify the statement's content: does it merely describe/explain, or does it relate more broadly to a startling event while the declarant was stressed?

Summary

Present Sense Impressions (FRE 803(1)) are statements describing or explaining an event made while or immediately after perception. Excited Utterances (FRE 803(2)) are statements relating to a startling event made while under the stress of excitement caused by that event. Both are exceptions to the hearsay rule based on spontaneity reducing the likelihood of fabrication. Key distinctions lie in the nature of the event (startling vs. any), the timing requirement (stricter for 803(1)), and the content of the statement (describing/explaining vs. relating to).

Key Point Checklist

This article has covered the following key knowledge points:

  • Hearsay exceptions under FRE 803 allow admission even if the declarant is available.
  • FRE 803(1) Present Sense Impression requires a statement describing or explaining an event/condition made while or immediately after perceiving it.
  • FRE 803(2) Excited Utterance requires a startling event and a statement relating to it, made while under the stress of excitement caused by the event.
  • The reliability rationale for both is spontaneity, reducing risks of memory issues or fabrication.
  • Key differences involve the need for a startling event (803(2) only), the strictness of the timing requirement (stricter for 803(1)), and the scope of the statement's content.
  • Declarant availability is immaterial for both exceptions.

Key Terms and Concepts

  • Present Sense Impression
  • Excited Utterance
  • Startling Event
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
AdaptiBar
One-time Fee
$395
Assessment Day
One-time Fee
$20-39
BarPrepHero
One-time Fee
$299
Job Test Prep
One-time Fee
$90-350
Quimbee
One-time Fee
$1,199

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal