In the context of a criminal-conviction appeal, Seventh Circuit Court of Appeals Judge Richard Posner has authored a concurring opinion that questions the ongoing validity of hearsay rule exceptions that allow into evidence “present sense impression” or “excited utterance” statements made outside of court. United States  v. Boyce, No. 13-1087 (7th Cir., decided February 13, 2014).

The “present sense impression” exception applies to “a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” According to Posner, immediacy does not guarantee truthfulness: “It’s not true that people can’t make up a lie in a short period of time. Most lies in fact are spontaneous.”The “excited utterance” exception allows into evidence “a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” In Posner’s view, this exception, which assumes that an unreflective utterance is reliable, “rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.” He argues that “hearsay evidence should be admissible when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.”