Court-Martial Trial Practice Blog
Prof. Colin Miller, The Sense Of The Past: Third Circuit Corrects Worst Present Sense Impression Ruling I Have Ever Seen, 23 February 2009.
United States v Green, 2009 WL 385423 (3rd Cir. 2009).
over Green's vigorous objection, the Government was permitted to
introduce as substantive evidence a statement that Brown purportedly
made some 50 minutes following the controlled buy in question, after he
was brought back to DEA offices, questioned, and debriefed by the case agents.
The D.C. judge permitted this testimony under Fed. (Mil.) R. Evid. 802(a)(1). On appeal,
[T]he Third Circuit found that it did not need to define
"the precise temporal limits of application of the present-sense
impression exception, nor whether a statement made 50 minutes after the
fact could ever be properly admitted under Rule 803(a)(1). According to the court, this was so because:
"the precise temporal limits of application of the present-sense
impression exception, nor whether a statement made 50 minutes after the
fact could ever be properly admitted under Rule 803(a)(1). According to the court, this was so because:
Brown's statement in this case [wa]s problematic not only
because of the lengthy passage of time, but also because the statement
was only made after he had been questioned by DEA agents about the
details of the transaction the statement purports to describe. This
undisputed sequence of events affirmatively indicates that Brown made
his statement after he was expressly asked to reflect upon the events
in question, and thereby fatally disqualifies the declaration for
admission as a present-sense impression."
tip: Prof. Colin Miller.