Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial

The present sense impression exception to the hearsay rule, which is provided for in FRE 803(1), has not been adopted in Illinois. For that reason, there is no IRE 803(1); that rule designation has been reserved.

In Estate of Parks v. O'Young, 289 Ill. App. 3d 976 (1997), the appellate court noted that it was unaware of any Illinois case that applied the present sense impression exception; see also People v. Stack, 311 Ill. App. 3d 162 (1999) (citing O'Young). See also People v. Leonard, 83 Ill. 2d 411 (1980) (noting that the State urged the correctness of the admission of the controverted statement by the deceased as a present sense impression but, without specifically rejecting the State's claim, holding that "absent some evidence of the existence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, the testimony relating the out-of-court statement should be excluded," and ultimately finding that the statement was properly admitted as a spontaneous declaration); People v. Smith, 127 Ill. App. 3d 626 (1984) (though not using the phrase "present sense impression," holding that "[t]here is no exception to the hearsay rule which allows admission of 'a declaration of a witness to the event as to what he saw happen,'" but admitting part of a since-deceased person's statement as a spontaneous declaration).

For those seeking added justification for Illinois' non-adoption of the present sense impression exception to the hearsay rule, see Judge Richard Posner's concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014).

Despite the above-described authority justifying the non-adoption of this hearsay exception, note that in People v. Alsup, 373 Ill. App. 3d 745 (2007), the appellate court relied on the present sense impression exception, as well as the business records and the excited utterance exceptions, to approve admission of ISPERN radio communications during a police chase of a stolen vehicle that resulted in a homicide. In People v. Abram, 2016 IL App (1st) 132785, the trial court admitted a tape of officers pursuing a car from which objects, later determined to be cocaine, were thrown, Noting the absence of a present sense impression exception in Illinois' codified rules, and considering and rejecting the holding in Alsup, the appellate court concluded that the tape's admission could not be justified by the present sense impression exception to the hearsay rule. But the court went on to consider the applicability of the excited utterance exception, and held that the tape was admissible under that exception. The court further reasoned that, even if that exception did not apply, there was no resulting prejudice "as no information was provided in the recording that was not also established through the live testimony" of the officers. Abram, at ¶ 76.

In addition to the excited utterance exception, for an alternative (non-substantive) method for introducing such evidence, see the Illinois Supreme Court decision in People v. Banks, 237 Ill. 2d 154 (2010) (approving admission of a series of flash messages over police radios, holding that "admission of an out-of-court statement that is not offered to prove the truth of the matter asserted but rather to explain the investigatory procedure followed in a case is proper").

See also People v. Lacey, 93 Ill. App. 2d 430 (1968), a decision not related to the present sense exception to the hearsay rule, where, in upholding the admission of sheriff's radio logs, the appellate court stated, "As an exception to the hearsay rule, it has been repeatedly held that records kept by a public officer, dealing with his official activities and either required by statute or reasonably necessary for the performance of the duties of the office, are admissible to prove the matters recorded."

Author's Commentary on Ill. R. Evid. 803(2)

IRE 803(2) is identical to the federal rule before the latter's amendment solely for stylistic purposes effective December 1, 2011. This exception to the hearsay rule generally has been referred to in Illinois cases as the "spontaneous declaration" exception. For case interpretation, see People v. Sutton, 233 Ill. 2d 89, 107 (2009) ("there must be an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, there must be an absence of time for the declarant to fabricate the statement, and the statement must relate to the circumstances of the occurrence"). See also People v. Williams, 193 Ill. 2d 306, 352 (2000); People v. Damen, 28 Ill. 2d 464 (1963); and People v. Burton, 399 Ill. App. 3d 809 (2010).

For a case applying this exception, see People v. Connolly, 406 Ill. App. 3d 1022 (2011), where, in reviewing a conviction for domestic battery, the appellate court held that (1) the out-of-court incriminating statements of the defendant's wife qualified as excited utterances and sufficiently justified the conviction, despite the wife's contrary testimony at trial, and (2) the wife's excited utterance was not a "testimonial statement" and thus did not violate the confrontation clause as interpreted by Crawford v. Washington, 541 U.S. 36 (2004).

In People v. Stiff, 391 Ill. App. 3d 494 (2009), in approving the admission of statements made by the victim who had run a significant distance after being set afire, the appellate court cited other decisions holding that time since and distance from an incident are not dispositive in determining whether "it is reasonable to believe that the declarant acted without thought, or whether there existed the possibility that the declarant has deliberated and made a false statement."

In People v. Perkins, 2018 IL App (1st) 133981, the appellate court determined that two of three statements made by the victim concerning the defendant's shooting her in the face qualified as excited-utterance exceptions to the hearsay rule. Nevertheless, the court held that admission of the statements violated the defendant's sixth amendment right to confrontation. The court reasoned that the victim had been taken from the scene of the shooting and she had been in the hospital for about one and a half hour before making the first statement, and that the defendant had already been taken into custody when she made the statement. The court therefore concluded that "the primary purpose in questioning [the victim] was not to determine if there was an ongoing emergency, since they already had defendant in custody for the shooting, but to establish or prove past events to identify or convict the perpetrator." Perkins, at ¶ 78. The court therefore held that the statements of the victim, who died nine days later, were testimonial and therefore violated the defendant's sixth amendment rights. Id. at ¶¶ 75-78. The appellate court, however, ultimately allowed admissibility of all three statements of the victim under the forfeiture-by-wrongdoing exception to the hearsay rule. Id. at ¶¶ 81-88.

For an example of a decision where the hearsay exception did not apply, see People v. Denis, 2018 IL App (1st) 151892, ¶¶ 71-75 (holding that statements by the victim of sexual assaults when she was seven-years old, made to her mother during an argument more than 10 years after the offenses, were improperly admitted because the excitement of the occurrences no longer predominated and thus did not meet the requirements of the excited utterance exception).

Note that "there is a caveat to the spontaneous declaration exception of the hearsay rule that the declarant must have had an opportunity to observe personally the matter of which he speaks." People v. Hill, 60 Ill. App. 2d 239, 248 (1965). For a recent application of that principle, see People v. Garner, 2016 IL App (1st) 141583, ¶¶ 47-52 (finding error in admission as excited utterances statements of mother that implicated her daughter in killing her granddaughter ("she killed my baby," "I can't believe she would do this," and "I can't believe she did this"), where mother had not personally witnessed the acts that constituted the murder offense, but holding that the admission of the evidence was harmless error).

Consequence of "Availability of Declarant Immaterial"

As it relates to this rule and all the other 803 rules, note the significance of the immateriality of the availability of the out-of-court declarant. That immateriality means that if the out-of-court declarant is on the witness stand, he or she may testify to the out-of-court statement. It also means that whether or not the out-of-court declarant testifies, a person who heard the statement may testify about the declarant's Rule 803 statement.