The little hearsay exception that couldn’t

ADVENTURES IN HEARSAY

Whatever happened to California Evidence Code § 1243? You can check your copy of the Evidence Code, which I'm sure is right at your fingertips. Section 1243 isn't in there. Should it be?

The California Law Revision Commission up in Palo Alto certainly thought so: In 2008, the Commission sent a letter to then Governor Arnold Schwarzenegger and the Legislature of California, with a lengthy recommendation that a proposed § 1243, modeled on Federal Rule of Evidence 803(1), which provides a hearsay exception for "present sense impressions," be added to the California Evidence Code. (See California Law Revision Commission, 2007-08 Recommendations, Vol. 37, at p. 409 [available at http://www.clrc.ca.gov/pub/Printed-Reports/REC-K600-PSI.pdf].)

The proposed § 1243 provided as follows:

Evidence of a statement is not made inadmissible by the hearsay rule if both of the following conditions are satisfied:

(a) The statement is offered to describe or explain an event or condition.

(b) The statement was made while the declarant was perceiving the event or condition, or immediately thereafter.

(Id. at 439.)

The Commission observed that "[a] good example of a present sense impression is a radio announcer's play-by-play description of a baseball game." (Id. at 412.) In other words, any kind of contemporaneous narration or description of events a declarant is observing, either at the time, or "immediately thereafter."

The Commission noted that "the Federal Rules of Evidence and a vast majority of states recognize an exception to the hearsay rule for a present sense impression. The [California] Evidence Code does not include such an exception." (Id.) Adopting the exception would, the Commission suggested, "further the pursuit of truth in court proceedings." (Id.)

The recommendation apparently failed to persuade its recipients, and § 1243 never made it over the hump and into the California Evidence Code. Has the "pursuit of truth in court proceedings" suffered as a result? Let's consider.

With your Desktop Edition of the 2023 California Evidence Code still open to pages 248 to 249, where you were looking for the missing § 1243, you'll note that what we do have is § 1241, which provides a hearsay exception for "contemporaneous statements." Is that different from a "present sense impression"?

Section 1241 provides as follows:

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.

(Cal. Evid. Code § 1241.)

The Commission's examples of statements that might qualify under this section were "You can borrow my pen," and "I want you to have this pen." (California Law Revision Commission, supra, Vol, 37 at p. 414.) These statements, the Commission noted, "determine[] the legal impact of the event," and that "[t]echnically ... [are] not hearsay but rather ... verbal act [s] . ..." (See Ashfaq G. Chowdhury, "How to do things with words," Daily Journal, Oct. 6, 2023 [discussing verbal acts as non-hearsay; available at https://www.dailyjournal.com/mcle/1365-how-to-do-things-with-words].]

The Commission noted that "[a]n exception similar to the present sense impression exception was proposed when the [California] Evidence Code was first drafted in 1965," but that "[t]he proposed exception was narrowed and became [§1241]," the exception for contemporaneous statements. (California Law Revision Commission, supra, Vol, 37 at p. 414.)

As the Commission saw it, § 1241(contemporaneous statements) and the proposed § 1243 (present sense impressions) differed as follows:

(1) Under [proposed § 1243], the declarant's statement can describe the conduct of another person, while under the California exception, the declarant's statement must explain the declarant's own conduct.

(2) Under [§ 1241], the conduct the declarant explains must be equivocal in nature and need explanation, but, under [proposed § 1243], the declarant's statement may describe an event or condition that is unequivocal and unambiguous in nature.

(3) Under [proposed § 1243], the declarant's statement may be made immediately after the event or condition has been completed, while, under [§ 1241], a declarant's explanation of conduct must be simultaneous with the conduct, not made afterwards.

(Id. at 416.)

The Commission argued in its recommendation that a present sense impression exception was justified because (1) the likelihood of memory loss is diminished given the immediacy, (2) the likelihood of insincerity is diminished given that there is little time to concoct deceptions, and (3) the corroborative value in some situations of present sense impressions in confirming the testimony of other witnesses. (Id. at 417-19.)

The Commission noted that the proposed exception would further the pursuit of truth in court proceedings because "[w]hen evidence is both relevant and trustworthy, it should be admissible, so that the factfinder is fully informed and able to correctly assess the situation at issue." (Id. at 419.)

As to whether California needed this new exception, the Commission acknowledged that the "spontaneous statement exception" (Cal. Evid. Code § 1240), sometimes referred to as an "excited utterance exception," would have significant overlap with the proposed present sense impression, but that the new exception would be broader, as it would not have § 1240's requirement that the declarant was under the stress of excitement at the time they made the statement. (California Law Revision Commission, supra, Vol, 37 at p. 420.) The Commission observed that the present sense impression exception "would be especially useful when the declarant makes an observation just before an exciting event." (Id.)

The Commission further noted that "[t]he drafters of the federal rules [of evidence] concluded that including both an exception for a present sense impression and an exception for an excited utterance was needed to avoid 'needless niggling.' Presumably, the drafters did not think it profitable for courts to spend significant effort differentiating between an excited utterance and a present sense impression." (Id.)

So, has the "pursuit of truth in court proceedings" in California suffered as a result of the failure to adopt a present sense impression exception? I'm not even sure that is the right question. Is a trial a pursuit of truth? If so, it's a strange kind of pursuit: All sorts of information is kept out of a trial, deemed irrelevant or too inflammatory or excluded for Constitutional or other reasons unrelated to a pursuit of truth, such as a discovery sanction, etc. The technical discussion provided by the Commission in 2008 confirms, to my mind, some of the oddities and frailties of the Swiss cheese hearsay doctrine we've established here in California and elsewhere in America.

The justifications presented by the Commission and the distinctions from other exceptions set out by the Commission raise the question of just what we are trying to accomplish with the general rule against hearsay closely pursued by a phantasmagoria of exceptions. (See Cal. Evid. Code §§ 1220-1390.) The justifications put forward for the present sense impression do seem to rely, as Judge Posner has observed, essentially on "folk wisdom." People can't lie about things on the spot? Many siblings narrating their bashing of their siblings while simultaneously asking "Why do you keep hitting yourself?" might have questions.

A reasonable person perusing the dozens of hearsay exceptions set out over 35 pages of the Evidence Code, ranging from "Recitals in ancient writings" to "Statement[s] concerning boundar[ies]" to "Judgment[s] against person[s] entitled to indemnity" might begin to despair about finding the unifying logic or reasoning behind this unwieldy Rube Goldberg contraption we've assembled in the Evidence Code. (See Richard A. Posner, On Hearsay 84 Fordham L. Rev. 1465, 1471 (2016) ["Like the exception for present sense impressions, the exception for excited utterances rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas."].)

Given the existing landscape, one might ask "Why not just add another exception?" Perhaps that's again the wrong question. Maybe we need fewer exceptions. As Judge Posner mused, observing similar confusion and incoherence in the Federal Rules of Evidence, perhaps something like an improved Fed. R. Evid. 807, the "Residual Exception," would serve us better than a raft of exceptions. (See Posner, supra, at 1471.) That rule provides in relevant part as follows:

(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:

(1) the statement is supported by sufficient guarantees of trustworthiness--after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and

(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

(Fed. R. Evid. 807(a).)

California's Evidence Code doesn't have a similar Residual Exception. If we did, that might allow us to reconsider whether we actually need all of the other exceptions. Luckily, I don't make the rules.