California’s Contemporaneous Statements Exception v. the Present Sense Impression Exception
Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Meanwhile, California’s counterpart is much narrower. California’s contemporaneous statements exception — California Evidence Code Section 1241 — states that
Evidence of a statement is not made inadmissible by the hearsay rule if the statement:
So, how does California’s exception work? Let’s take a look at today’s opinion by the Court of Appeal, Third District, California in People v. Carey, 2021 WL 486392 (2021).
In Carey,
the driver of an Isuzu Rodeo SUV led two Manteca Police Department detectives and other officers on a 2.6 mile vehicle pursuit through residential streets in Manteca. Ultimately, the Isuzu slowed, the driver jumped out and fled on foot, and the Isuzu continued forward and struck a parked vehicle. One of the detectives, who had ten prior contacts with defendant, identified him as the driver of the Isuzu.
During the pursuit, an officer had stated: “looks like one occupant, guys, one male occupant with a baseball cap on.” The detective who identified the defendant, however, “testified the driver was not wearing a hat.”
After he was convicted of crimes related to the incident, the defendant appealed, claiming that the trial court improperly excluded the recording of the officer saying the occupant had a baseball cap. He claimed
that Officer Crowley’s broadcast fell under the spontaneous statement exception to the hearsay rule. He assert[ed] that Crowley “immediately made the statement of seeing the driver with a baseball cap on as the vehicle pursuit was occurring.” According to defendant, Crowley’s statement “was instantaneous and narrated exactly what he observed; the statement was a result of the immediate influence of a police chase.”
The court disagreed, concluding that
Evidence Code Section 1241 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement:
(a) Is offered to explain, qualify, or make understandable conduct of the declarant; and
(b) Was made while the declarant was engaged in such conduct.”
Defendant asserts that Crowley’s statement fell under the contemporaneous statement exception to the hearsay rule set forth in Evidence Code section 1241. He maintains that Crowley’s statement “explained the conduct of broadcasting and his identification of the subject the officers were pursuing.”
2. Analysis
Crowley’s broadcast did not “explain, qualify, or make understandable conduct” of the declarant….It did not explain conduct Crowley was engaged in at the time the statement was made. It was simply a statement about an observation Crowley purportedly made. Moreover, as the comment to Evidence Code section 1241 makes clear, this section only applies when the statements accompany equivocal or ambiguous conduct, thus the statements are admissible to explain and make such conduct understandable. Leading commentators recognize this….
We conclude that the trial court did not abuse its discretion in refusing to admit Crowley’s statement under Evidence Code section 1241.
-CM