Present-Sense Impression and an Anonymous Declarant

An Illustrative Case

In United States v. Wills, 2018 WL 6716096 (D.D.C.), Senior Judge Paul Friedman was confronted with a motion in limine by the government to admit the out-of-court statement of an unidentified declarant in the trial of the one remaining count against Wills—being a convicted felon in possession of a firearm. Judge Friedman’s opinion sets forth the relevant facts:

1. Will was arrested on February 9, 2018.
2. The statement at issue was recorded in footage taken by a body-worn camera (BTC) worn by Officer Keleman at the scene of the arrest.
3. The statement at issue was made by an “anonymous civilian witness” who briefly spoke to Officer Keleman while other officers searched for the handgun allegedly thrown by the defendant.
4. The portion of Officer Keleman’s BWC footage with audio begins at 4:57:08 p.m. and shows Officer Keleman walking toward and then up a staircase of the apartment building breezeway through which the defendant allegedly ran. The footage depicts Officer Keleman walking to the second floor and knocking on the door of an apartment. As Officer Keleman knocks, someone off-screen calls out to get his attention; he turns in response and says, “he what?” The unseen and unidentified declarant says something as she comes up the stairs, walks toward the officer, says something to him, and continues walking.
5. The government submitted that the footage indicates that the declarant stated: “[H]e threw it in the bushes; I seen him . . . he threw it to the right; don’t talk to me.”
6. The defendant submitted that the footage indicates something a little different and that the declarant stated: “He threw it in the bushes. I was sitting there w . . . He threw it to the right. Don’t talk to me.” The defendant claimed that the declarant did not say, “I seen him.”
7. This interaction between Officer Keleman and the anonymous civilian witness occurred from approximately 4:57:56 p.m. to 4:58:04 p.m., a period of about eight seconds.
8. The government maintained that the interaction at issue took place between three and four minutes after the defendant allegedly threw the firearm, and that the timeline on the body-worn camera of Officer Ewing, the pursuing officer, showed that the firearm was recovered from the bushes at approximately 4:58 p.m. This meant that the lapse of time from the throwing of the gun until its recovery was approximately 3 minutes, 22 seconds, while the time between the throwing of the gun and the statement of the anonymous civilian was approximately 3 minutes.
9. Judge Friedman listened to the audio and slowed it down so he could clearly hear it and made a factual finding that the anonymous civilian actually said: “He threw it in the bushes. I was sitting there watching. He threw it to the right. Don’t talk to me.”

The Standard

Judge Friedman summarized the standard that must be satisfied by the proponent of the asserted present-sense impression. The proponent must establish by a preponderance of the evidence the statement meets three criteria: “(1) the statement describes or explains an event or condition, (2) which the declarant perceived firsthand, and (3) the statement was made contemporaneously—while the declarant perceived the event or condition or immediately thereafter.”

The Argument

The defendant’s first argument against admissibility was that the statement did not indicate that the declarant neither referred to a gun that was thrown nor to the defendant as the thrower. Judge Friedman found that this argument “borders on the frivolous.” He reasoned that there was no evidence that anyone in the area other than the defendant threw anything during the approximately four minutes at issue and that, even though the declarant was reluctant to talk to law enforcement and left the scene without identifying herself, “she spontaneously provided a statement that she saw a person throw something that was of serious concern to her into the bushes.”

The defendant’s second argument against admissibility was that there was no evidence that the declarant herself perceived the event or condition firsthand rather than merely repeating something she was told and no evidence of where she was when she made any observation. Judge Friedman rejected this argument and reasoned as follows:

[W]hile she did not say ‘I seen him,’ she did say, ‘I was sitting there watching,’ and ‘he threw it in the bushes . . . he threw it to the right.’ The clear inference is that she was watching and, while watching, she saw him throw it in the bushes. It could hardly be clearer that this anonymous civilian personally saw someone—a male—throw something in the bushes that gave her a sufficient level of concern to stop a police officer and spontaneously and immediately report what she had seen. Her statement a fortiori constitutes a report of the first-hand personal perception of an event she had just seen.

The defendant also maintained that that because the court had no knowledge about the anonymous civilian witness, the court should have had heightened concerns about her ability to perceive and her reliability. Judge Friedman noted that “[s]ome 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,” but concluded that the officers’ discovery of a firearm in the bushes moments after the statement and the body-worn camera footage corroborated the statement and established its reliability regardless of the identity of the declarant.

The defendant’s last hearsay argument was that the government did not show that the statement was made while perceiving the gun thrown or immediately thereafter. Judge Friedman reasoned that “contemporaneity or substantial contemporaneity is important because it serves as a proxy for reliability or trustworthiness” and referred to a D.C. Circuit decision and another D.C. District Court decision: “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. Compare Hilyer v. Howat Concrete Co., 578 F.2d 422, 426 n.7 (D.C. Cir. 1978) (explaining that an ‘out-of-court statement made at least fifteen minutes after the event it describes is not admissible’), with Flythe v. District of Columbia, 4 F. Supp. 3d 222, 234 (D.D.C. 2014) (holding a statement admissible when the statement was made within moments or seconds of the event).” Given the approximately four-minute time frame of the events, it is not surprising that Judge Friedman found “that the event and the statement were sufficiently contemporaneous to substantiate its reliability.”

Having lost his hearsay objections, the defendant turned to the Sixth Amendment Confrontation Clause, which proved to be no more helpful. Noting that the Confrontation Clause only regulates “testimonial” hearsay and citing Supreme Court cases beginning with Crawford v. Washington, 541 U.S. 36 (2004), Judge Friedman concluded that the anonymous declarant’s statement was not testimonial because the interaction between Officer Keleman and the declarant produced a statement that “was entirely unsolicited and spontaneous” and “the primary purpose of the conversation was to find the gun and remove it from the apartment complex, not to obtain information potentially relevant to a criminal prosecution.”

Lessons

1. The burden of demonstrating entitlement to a hearsay exception is on the proponent, and the burden is to demonstrate by a preponderance of the evidence that the statement qualifies under the exception.
2. The judge is a fact finder when an exception is invoked. In this case, for example, Judge Friedman’s finding as to the exact contents of the statement was important.
3. Because many hearsay declarants will not testify at trial, there is no opportunity to have them explain their statements, so that the judge must examine the contents of the statement and the surrounding circumstances in performing the fact-finding function.