7th Circuit Takes Archaic Hearsay Exceptions to Judicial Woodshed

Decrying them as flawed “folk psychology” with dubious philosophical underpinnings, the Seventh Circuit recently took two venerable hearsay exceptions to task in the course of affirming a felon’s conviction on a Federal weapons charge.

In U.S. v. Boyce (here), the Court affirmed the trial court’s admission of a 911 call recording and transcript into evidence over defendant’s hearsay objections under the present sense impression and excited utterance exceptions.

Defendant’s girlfriend called 911 and said that the defendant was beating her and “going crazy for no reason”.  During the call, she also related how she had just run to a neighbor’s house and that the defendant had a gun. 

When the caller refused to testify against the defendant at trial, the prosecution published the call’s recording and transcript to the jury over defendant’s objection.  Defendant appealed.

The Seventh Circuit affirmed the conviction on the basis that the 911 call satisfied both the present sense impression and excited utterance hearsay exceptions, codified in FRE 803(1) and (2) respectively. 

Yet it still spent much of the opinion questioning the continued validity of the two “spontaneity” hearsay exceptions.   

Present Sense Impression

FRE 803(1) – the present sense impression – provides that an out-of-court statement describing or explaining an event while it’s happening or immediately after the declarant perceives it, is not hearsay. 

The exception is premised on the notion that the “substantial contemporaneity” of event and statement nullifies a likelihood of conscious fabrication (e.g. the speaker doesn’t have enough time to lie).

The present sense impression elements are (1) a statement that describes an event or condition with no calculated narration; (2) the speaker personally perceives the event or condition described, and (3) the statement must be made while the speaker is perceiving the event or condition, or immediately thereafter. 

The Court found it difficult to take the rationale underlying the present sense impression exception “entirely seriously” since “people are entirely capable of spontaneous lies.”  The Court bolstered its skepticism by citing to a psychological study that shows it takes less than a second for someone to fashion an impromptu lie.

Excited Utterance

The excited utterance hearsay exception is broader than the present sense impression and applies where (1) a startling event occurs, (2) the declarant makes the statement under the fresh stress of a startling event, and (3) the declarant’s statement relates to the starting event.  

It’s bottomed on the notion that a startling event will prevent a speaker from deliberation or “self-interested reflection” and likely produce an utterance free from calculation or fabrication.

 But the modern trend in psychology, according to the Court, was to recognize that while a stressor may minimize a speaker’s opportunity for reflective self-interest, it’s just as likely (if not more) that the startling event will distort the speaker’s observation and judgment.

Judge Posner’s concurrence goes even further.  He labels the hearsay rule archaic and too complex and also castigates the two “spontaneity exceptions” (present sense impression and excited utterance) as lacking sound science and psychology. 

He views the exceptions as outmoded relics of a prior era that no longer hold water in 21st century culture – especially in light of ongoing developments in cognitive psychology.  Judge Posner believes the 911 call should have come into evidence under FRE 807’s “residual” hearsay exception – a rule he would like to see swallow up FRE 801-806. 

The residual hearsay rule would allow into evidence out-of-court statements that have a sufficient degree of trustworthiness and reliability and that are dispositive of a case’s outcome.

Take-away: Boyce is interesting for its discussion and critique of the data and belief systems underlying the present sense impression and excited utterance hearsay exceptions.  Clearly, time-honored (but not tested) rationales for the rules are suspect. 

The reason: most lies are spontaneous and actually outnumber planned lies (this according to studies cited by the Court).  It will be interesting to see if and when the present sense impression and excited utterance exceptions are either updated or excised completely from Federal and state court trials.

Discovery Sanctions and Getting Medical Records Into Evidence – Illinois Case Note

In Fraser v. Jackson, 2014 IL App (2d) 130283, the Second District affirmed a $600K-plus jury verdict for the personal injury plaintiff.  The Court also upheld the trial court’s exclusion of defendant’s medical expert testimony at trial and found that the defendant failed to answer plaintiff’s request to admit medical records in good faith.

Discovery Sanctions: Rule 219 and 213 Interplay

Illinois Supreme Court Rule 213(f)(3) requires a party, upon written interrogatory to identify controlled expert witnesses and provide testimonial subjects, conclusions, opinions, qualifications and any written reports.  SCR 213(f)(3).  The rule demands strict compliance.  Rule 219 provides a trial judge with an array of sanctions options including barring testimony from a party or its expert where it fails to comply with discovery rules or orders.  SCR 219(c)(iv).  Sanctions are committed to the trial court’s discretion and the purpose of sanctions is not to punish; but to motivate discovery compliance. (¶¶ 28-29).

 The Court found that the trial court properly barred defendant’s medical expert from testifying.  The defendant violated several discovery orders and its retained expert failed to respond to a documents subpoena despite repeated requests.  The trial judge gave defendant many chances to comply with discovery and entered progressive sanctions before barring outright the defendant’s expert from testifying.

Medical Records: Evidentiary Foundation Rules

The Court also held that plaintiff laid a sufficient foundation for the admission of his medical bills in evidence.

In Illinois, the evidentiary foundation for admitting medical records can be established by a doctor’s deposition testimony or through testimony of a non-doctor employee familiar with the medical practice’s billing methods and reasonableness of the charges. (¶40).

At trial, the plaintiff offered evidence deposition testimony of several treating physicians and a medical billing specialist – all of whom testified that plaintiff’s medical treatment and bills were reasonable and commensurate with the type of injury that plaintiff suffered in the car crash.  This testimony cumulatively satisfied the foundation requirements for admitting medical bills into evidence.

 Costs and Attorneys’ Fees (Rule 219(b) and 216 interplay)

 The Court upheld the trial court’s $4,000 plus sanctions award against defendant for failing to respond in good faith to plaintiff’s request to admit that the medical bills were reasonable and necessary. 

Illinois law allows a plaintiff to utilize a Rule 216 Request to Admit to seek admissions that his medical treatment and related expenses were reasonable and necessary in view of the plaintiff’s injury. 

Rule 219(b) allows a plaintiff to recover fees and costs where he proves a requested fact that the defendant denies where the denial isn’t in good faith, based on privilege or some other permissible reason – even if the defendant doesn’t have a specific intent to obstruct the litigation process.  SCR 219(b), ((¶¶44-46).

The court found the defendant’s failure to admit the reasonableness and amount of plaintiff’s medical bills was not in good faith.  Because of the defendant’s denial, the plaintiff had to open up a case in another state (Wisc.) and subpoena a medical records agent to testify telephonically at trial.  The Court found that because defendant made plaintiff jump through so many logistical hoops to get a billing agent to testify on a mundane issue, the trial court’s fees and costs award was proper.  (¶47).


– A trial court has wide latitude to assess discovery sanctions including barring witnesses;

– A request to admit a fact that’s not subject to meaningful dispute should be admitted by the opposing side.  Otherwise, the party denying the requested fact or document will have to pay the requesting party’s fees and costs incurred in proving that fact/document.