The Wisconsin Rules of Evidence - Present Sense Impression Hearsay Exception

By John DiMotto

Section 908.03(1) sets forth the "Present Sense Impression" hearsay exception. It encompasses:

"A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

These statements describe or explain what the declarant has seen, heard, smelled or tasted.

For example:

1) I just saw a car strike a person crossing the street in the crosswalk.

2) I smelled an odor of gas just before the explosion.

3) I just heard a woman screaming "leave me alone" and then saw a man slap her in the face.

4) I just took a bite out of an apple and it caused my mouth to pucker up.

It is important to note that these statements pertain to facts; matters that are concrete. The exception is not intended to encompass opinions.

These statements must be made at the time of the perception or immediately thereafter. They are considered to be reliable because of their spontaneity and contemporaneity. There should be no appreciable time between the observation and statement. This is unlike the Statement of Recent Perception exception found in 908.045(2). The temporal relationship between an event and a statement describing the event is not as critical when dealing with the Statement of Recent Perception as it is with the Present Sense Impression. 908.045(2) concerns that which is recent. 908.03(1) concerns that which is present. see State v. Knapp, 265 Wis.2d 278 (2003). The Statement of Recent Perception was intended to allow more time between the observation of the event and the statement. see State v. Weed, 263 Wis.2d 434 (2003); Kluever v. Evangelical Reformed Immanuels Congregation, 143 Wis.2d 806 (Ct. App. 1988); State v. Ballos, 230 Wis.2d 495 (Ct. App. 1999).

The Present Sense Impression is akin to a 908.03(2) "excited utterance" without the excitement requirement and with a contemporaneity requirement. They are both "firmly rooted" hearsay exceptions. see State v. Hemphill, 287 Wis.2d 600 (Ct. App. 2000).

The Present Sense Impression exception to the general rule barring hearsay allows the introduction of a statement which is deemed to have sufficient indicia of reliability by virtue of the circumstances in which the statement is made.

In my next blog, I will look at the 908.03(2) Excited Utterance Exception.