변호사 이재욱의 미국법 이야기 (Attorney Lee's commentary about U.S. law)

ARTICLE VIII. HEARSAY
Table of Contents Article I. General Provisions Article II. Judicial Notice Article III. Presumptions Article IV. Relevancy and Its Limits Article V. Privileges Article VI. Witnesses Article VII. Opinions and Expert Testimony Article VIII. Hearsay Rule 801 Rule 803 803(1) 803(1)(a) 803(1)(b) 803(1)(c) 803(2) 803(3) 803(4) 803(5) 803(6) 803(7) 803(8) 803(21) 803(22) 803(24) Rule 804 Rule 805 Article X. Contents of Writings, Recordings, and Photographs	Revised Rule 803(1)(a). Present Sense Impression Commentary Current Rule 803(1) (present sense impression) encompasses statements that also fall under Current Rule 803(3), the present state of mind or physical condition exceptions. Current Rule 803(1) admits statements "describing or explaining [a] condition made while the declarant was perceiving the condition." Thus, all statements of a declarant's "then existing state of mind, emotion, or sensation," which fall under Current Rule 803(3), would also fall under Current Rule 803(1). The present state of mind exception in Current Rule 803(3) does not admit "a statement of memory or belief to prove the fact remembered or believed"; however, Current Rule 803(1) contains neither that restriction nor a restriction to external events or conditions. Consequently, a party could subvert the present state of mind exception by offering the statement as a present sense impression under Current Rule 803(1). For example, the state of mind exception in Current Rule 803(3) requires that the declarant's state of mind have independent relevance--relevance independent of the truth of the cause of the state of mind. A statement that the declarant hates another person, therefore, could be used as circumstantial evidence that the declarant injured that person in either the past or the future because his state of mind would have controlled his conduct. One's declaration of his present state of mind about a previouslyobserved occurrence cannot be used to prove the truth of that description because the occurrence caused the state of mind. Therefore, if one describes a past accident, that description reflects what he presently thinks about the accident, but because his state of mind did not control the stated event--did not have independent relevance -- his state of mind is not admissible under the present state of mind exception as circumstantial evidence of what he observed. However, without the independent relevance requirement, or some other restriction on the scope of the exception in Current Rule 803(1), the present sense impression exception would admit precisely what the present state of mind exception is designed to exclude. Similarly, Current Rule 803(1) subverts Current Rule 803(5) (the past recollection recorded exception), because Current Rule 803(1) is not limited to oral statements. Contemporaneous writings can be admissible under Current Rule 803(1) simply because they were made immediately after, and describe or explain, an event. Current Rule 803(5), however, was designed to control the admissibility of recorded recollections and imposes a number of restrictions. First, the declarant must appear as a witness to authenticate that the writing was made while her memory was fresh. Second, the declarant must attest that the writing was based on personal knowledge. Third, the declarant must verify that the writing is accurate. Fourth, the declarant must have insufficient recollection to testify fully and accurately about the content that he has certified as accurate. Finally, while the recorded recollection can be read into evidence, it may not be offered as an exhibit. Because none of these requirements are imposed by Current Rule 803(1), the present sense impression exception could be used to admit the record, undermining the past recollection recorded exception. The definition of "present sense impression" in Revised Rule 803(1)(a) is essentially the same as in Current Rule 803(1). However, to resolve the conflict with Current Rule 803(3) (present state of mind and present physical condition exceptions), Revised Rule 803(1)(a) has been limited to present sense impressions of external events. Therefore, statements describing subjective mental and physical conditions are no longer admissible under Revised Rule 803(1)(a). The conflict with the past recollection recorded exception in Current Rule 803(5) has been addressed by limiting present sense impressions to oral statements. The Project considered a proposal to require additional corroboration for statements admitted under Revised Rule 803(1). Dispute exists among commentators as to how much, if any, corroboration should be required. Inasmuch as the Current Rules require proof of personal knowledge and contemporaneity, the proponent must provide some corroborating evidence demonstrating that these conditions have been met. A proposal to require additional corroboration, therefore, was rejected as unnecessary. Revised Rule 803(1) instead allows the judge to consider evidence that indicates a lack of sincerity in deciding whether to admit the hearsay statement. Click here to return to Revised Rule 803(1)(a).