District Court Finds Anonymous Statement Made 3 Minutes After Seeing A Gun Tossed in the Bushes Qualifies as a Present Sense Impression
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.
In its recent opinion in United States v. Willis, 2018 WL 6716096 (D.D.C. 2018), the United States District Court, District of Columbia grappled with two key questions under this “present sense impression” exception: (1) what do we do with statements by anonymous declarants; and (2) how much time can pass between an event and a statement under the exception?
In Willis, Derrick Willis was charged with possession of a firearm by a prior convicted felon. An anonymous witness told a police officer wearing a body camera that Willis had thrown a gun into the bushes about 3-4 minutes earlier. A gun was subsequently recovered from the bushes. The anonymous witness was never heard from again.
The prosecution subsequently filed a motion in limine, asking for a determination that the anonymous witness’s statement would be admissible at trial under Federal Rule of Evidence 803(1).
Anonymity
Here was the court’s discussion of anonymity:
Mr. Wills further argues that the fact that the Court knows nothing about the civilian witness – that she was and remains anonymous – raises heightened concerns about her ability to perceive and her reliability….Some courts have been hesitant to admit the present-sense impression of an unidentified declarant where the declarant’s capacity to observe cannot be substantiated, corroborated, or attacked on cross-examination….As the Seventh Circuit has correctly concluded, the lack of a corroborating witnesses “[bears] upon the weight owed to this evidence but [does] not bar its admission.”…In any event, here the officers’ discovery of a firearm in the bushes moments later itself provides corroboration of the declarant’s statement. Furthermore, and importantly, the footage from Officer Keleman’s body-worn camera is itself corroboration. Indeed, it is virtually conclusive proof that what Officer Keleman said previously – and presumably will say at trial – about his encounter with the anonymous civilian witness and what she said to him is substantially accurate. Thus, the Court does not find the declarant’s anonymity a basis for excluding the statement as hearsay.
I’m not sure that I agree with the Seventh Circuit that anonymity should always go to the weight of the evidence and not it’s admissibility. That said, I would say that the body cam footage and the discovery of the gun in the bushes provided sufficient corroboration for admission of the present sense impression in this case.
Timing
Here was the court’s discussion of timing:
Because the statement must be made at the time that the event or condition is being perceived or immediately thereafter under Rule 803(1), the Court must determine how long is too long to qualify as “immediately thereafter” in the circumstances presented here. There is “no talismanic time period for admission of a present-sense impression,” so admissibility must be determined on a case-by-case basis….In the D.C. Circuit, it is clear that fifteen minutes is too long to satisfy the contemporaneity requirement, but beyond that, there is very little guidance….In this case, the elapsed time between the event perceived – the throwing of the gun – and the anonymous civilian witness’ statement was 3 minutes. The Court concludes that the event and the statement were sufficiently contemporaneous to substantiate its reliability.
This is fairly typical of the reasoning in these types of cases, and I find this fact frustrating. The court basically says that 15 minutes is too long and that an analysis must be done of a case-by-case basis. But then the court simply says that a statement within 3 minutes of the gun tossing was “sufficient contemporaneous” without a discussion of any details that would make 3 minutes an appropriate amount of time.
-CM