D.C. criminal defense lawyer

“Present Sense Impression” in Sims v. United States

Jamison KoehlerEvidence, Opinions/Cases

“Our judicial system has a strong preference for live, sworn witness testimony.”  This is how D.C. Court of Appeals Associate Judge Easterly begins the opinion in Arik Sims v. United States, __ A.3d __ (D.C. 2019). “We want factfinders to hear from witnesses with personal knowledge of the facts and we want those witnesses to be subject to cross-examination, one of the greatest legal engine[s] ever invented for the discovery of truth.” (Internal quotations omitted.)

In other words, Judge Easterly is about to articulate restrictions on yet another hearsay exception; in this case, the “present sense impression” exception. This is exactly what she did with respect to the “excited utterance” exception in Mayhand v. United States, 127 A.3d 1198 (D.C. 2015).  

Sims stands for the proposition that, in addition to contemporaneity and spontaneity, the “trial court must be assured that the declarant of the hearsay statement personally perceived the event described.”  The burden of proving personal knowledge falls on the proponent of the out-of-court statement. 

 Sims clarifies that the burden of proof for admitting a hearsay statement is a preponderance of the evidence.  Finally,Sims concluded that a second statement was erroneously admitted as an “adoptive admission.”  Sims describes this hearsay exception as follows:

Testimony that an accused adopted statements of another person as his own may be admitted in evidence as an exception to the hearsay rule if it clearly appears that the accused understood and unambiguously assented to the statements.”  Foreman v. United States, 792 A.2d 1043, 1052 (D.C. 2002)(internal quotations omitted).  To constitute an adoptive admission, “the statement must be made in the defendant’s presence and hearing, . . . the defendant must actually understand what was said and have the opportunity to deny it,” id. (internal quotation marks omitted), and the statement must “contain[] assertions of fact which, if untrue, the party would under all the circumstances naturally be expected to deny,” Comford, 947 A.2d at 1185 (internal quotation marks omitted).