Miller v. Crown Amusements

United States District Court for the Southern District of Georgia · Evidence

EvidenceHearsayPresent Sense ImpressionRule 803(1)hearsayRule 803(1)present sense impression911 recording

Facts

After Miller and Shideler were repairing a disabled truck on I-95, a passing trailer truck struck Shideler and possibly Miller and did not stop. Carper, who was at the scene but did not observe the impact, left immediately to call 911, and police records showed her call was received at 12:11:43 p.m. A second 911 call was received at 12:13:53 p.m. from an unidentified female caller at a pay phone, who reported that she had been in heavy traffic on I-95 South, saw a truck marked "Crown Amusements" sideswipe and hit a young man near mile marker 98 or 99, and said it was her first opportunity to reach a phone. The distance and route to the pay phone, along with the absence of phones before that location, supported the timing and circumstances of her report.

Issue

Whether a recorded 911 call from an unidentified caller describing the accident was admissible despite being hearsay. Specifically, the question was whether the call qualified as a present sense impression under Federal Rule of Evidence 803(1).

Rule

Under Federal Rule of Evidence 803(1), a statement is admissible as a present sense impression if it describes or explains the event, the declarant personally perceived the event, and the statement was made while perceiving the event or immediately thereafter, meaning substantially contemporaneously with only a slight allowable lapse. When the declarant is unidentified, the court must still find by a preponderance of the evidence that the declarant actually observed the event; direct proof is not required if the surrounding circumstances sufficiently support that inference.

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During a wrongful-death trial in federal court in Florida, Lena Ortiz offers a recorded 911 call made by an unidentified motorist. The caller said, "I’m on I-75 near Gainesville, and we just saw a white box truck drift onto the shoulder and hit a man changing a tire," and phone records show the call came from a gas station about seven minutes driving time from the scene, with no other phones or businesses on that stretch of highway.

Is the recorded 911 call most likely admissible under Federal Rule of Evidence 803(1)?

Explanation. Rule 803(1) requires a statement describing the event, personal perception by the declarant, and substantial contemporaneity. The majority held that an unidentified caller may qualify if the court finds by a preponderance of the evidence from surrounding circumstances that she actually observed the event. Here, the caller said "we just saw," the call was recorded, and the timing and route support that this was the first realistic chance to call. That is enough under the majority’s reasoning.