Present Sense Impression (FRE 803(1)) vs. Excited Utterance (FRE 803(2))
A detailed comparison of these two evidence rules, including key differences, exam strategies, and guidance on when to apply each.
Overview
Present sense impression and excited utterance are two closely related hearsay exceptions under the Federal Rules of Evidence, both rooted in the idea that certain statements made close in time to an event are inherently reliable. However, they differ in their foundational rationale, timing requirements, and the nature of the event described.
A present sense impression under FRE 803(1) is a statement describing or explaining an event or condition made while the declarant was perceiving the event or immediately thereafter. The rationale is that the contemporaneity of the statement leaves no time for fabrication or faulty memory. There is no requirement that the event be startling or stressful. The time window is extremely narrow, typically limited to seconds or minutes after the event. Courts generally require near-perfect contemporaneity.
An excited utterance under FRE 803(2) is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event. The rationale is different: the stress of the event suspends the declarant's capacity for reflection and fabrication. Because the focus is on the declarant's emotional state rather than strict timing, the time window can be significantly longer. Courts have admitted excited utterances made hours or even days after the startling event if the declarant was still under the stress of excitement. However, the event must be startling, unlike the present sense impression which can describe any event.
Key Differences
| Aspect | Present Sense Impression (FRE 803(1)) | Excited Utterance (FRE 803(2)) |
|---|---|---|
| Triggering event | Any event or condition being perceived; need not be startling | Must be a startling event or condition |
| Timing requirement | During or immediately after perception (seconds to minutes) | While under the stress of excitement (can extend hours or longer) |
| Rationale for reliability | No time for reflection or fabrication due to contemporaneity | Stress of excitement suspends capacity for fabrication |
| Declarant's state of mind | No particular emotional state required | Must be under the stress of excitement from the event |
| Scope of statement | Must describe or explain the event or condition | Must relate to the startling event (broader scope) |
Exam Tips
On an evidence exam, when a statement is made shortly after an event, argue both exceptions in the alternative. Start with present sense impression if the statement was truly contemporaneous, then analyze excited utterance if the event was startling and the declarant was excited. Watch for fact patterns where significant time has passed; present sense impression will fail due to the strict timing requirement, but excited utterance may survive if the declarant remained under stress. A common trap is a statement made calmly about a non-startling event hours later; neither exception applies. Also note that both exceptions are available regardless of whether the declarant is available to testify, as they fall under FRE 803 rather than 804.
When to Apply Which
Apply present sense impression when the statement was made contemporaneously with a perceived event and the event was not necessarily startling. This is the go-to exception for calm, descriptive statements made in real time. Apply excited utterance when the event was startling and the declarant was visibly or demonstrably under the stress of excitement, even if some time has passed since the event. In practice, excited utterance is more flexible on timing but more demanding on the nature of the event, while present sense impression is more flexible on the event type but stricter on timing.