How Much Time Can Pass Before a Present Sense Impression is Given?

Similar to its federal counterpart, Texas 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.

It’s clear what constitutes a statement made while perceiving an event or condition. If Dana (declarant) says, “My head hurts,” or tells her friend on the phone, “Doug is attacking Vince,” it constitutes a present sense impression under Rule 803(1). But how much time can pass before a statement is no longer made “immediately after” the declarant perceives it.

Usually, courts says a few minutes at most. Before today, the longest I think I had ever seen was 23 minutes. But then I read Martin v. State, 2023 WL 3115779 (Tex. App. 2023).

 Martin itself doesn’t provide this new outer limit, but it cites, Harris v. State, 736 S.W.2d 166, 167 (Tex. App. 1987). The opinion in Martin cites Harris as “finding that the passage of 30 minutes was not too long to qualify the declarant’s statement as a present sense impression.” In truth, it’s a little more complicated. The court in Harris ruled as follows:

The trial court determined, prior to overruling appellant’s objection to Martin’s testimony, that the declarant’s statement was made at approximately 10:30 p.m. The evidence indicated that the burglary occurred some time after 9:30 or 10:00 p.m. The declarant’s statement concerning the burglary, the perpetrator’s identity, and his job location clearly qualifies as a present sense impression exception to hearsay.

So, potentially the present sense impression occurred 30 minutes after the burglary was done. But it’s also possible that fewer than 30 minutes had elapsed. Of course, it’s also possible that more than 30 minutes had elapsed.

-CM