United States v. Darnell Boyce

In the

United States Court of Appeals
For the Seventh Circuit
No. 13-1087

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

DARNELL BOYCE,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 00533 — Robert M. Dow, Jr., Judge.

ARGUED OCTOBER 3, 2013 — DECIDED FEBRUARY 13, 2014

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. After a foot chase during which an
officer said he saw Darnell Boyce throw a gun into a yard,
officers recovered the gun from the area and also found
ammunition for the gun in Boyce’s pocket. A jury convicted
Boyce of being a felon in possession of a firearm and ammuni-
tion. He maintains that he could lawfully possess a handgun
2 No. 13-1087

on the premise that his civil rights had been restored. In light
of our precedent, we disagree and conclude that a letter to
Boyce restoring his civil rights did not do so for all his prior
felonies. Boyce also challenges the admission at trial of
statements of Sarah Portis, the mother of four of his children,
made during a 911 call, including that Boyce had a gun. We
find no abuse of discretion in the district court’s admission of
the statements under the excited utterance exception to the
hearsay rule because they were made while under the stress of
a domestic battery and related to it. We affirm the district
court’s judgment.
I. BACKGROUND
Sarah Portis called 911 at around 7:45 p.m. on March 27,
2010, asking that police come to her residence because her
child’s father had just hit her and was “going crazy for no
reason.” The 911 operator asked, “Any weapons involved?” to
which Portis responded, “Yes.” The operator asked what kind,
and Portis said, “A gun.” The operator said, “He has a gun?”,
then “Hello?”, and Portis responded, “I, I think so. ‘Cause he
just, he just.” After the operator said, “Come on,” Portis
responded, “Yes!” twice. The operator again inquired, “Did
you see one?” and Portis replied, “Yes!” The operator then
cautioned Portis that if she wasn’t telling the truth, she could
be taken to jail. Portis responded, “I’m positive.” After giving
a description of what Boyce was wearing, the operator asked
where he was at the moment. Portis responded that she “just
ran upstairs to [her] neighbor’s house” and didn’t know
whether Boyce had left her house yet.
Within minutes, Officers Robert Cummings and Eugene
Solomon responded to the 911 call. After determining Boyce
was no longer in the apartment, they interviewed Portis for
No. 13-1087 3

about five to ten minutes. Officer Solomon described Portis as
“appear[ing] emotional as if she just had an argument, perhaps
a fight, someone who was just running.” The officers then went
to their car to complete a case report for domestic battery.
While they were sitting in their squad car, the officers saw that
Boyce had returned to the outside of Portis’s residence and was
calling out her name. Officer Solomon asked Boyce to come
over, but Boyce ran away instead, and Officer Cummings ran
after him. During the chase, Officer Cummings saw Boyce
reach toward the midsection of his body, retrieve a nickel-
plated handgun, and toss it over a garage into a yard. The
officer caught up with Boyce soon afterward and detained him.
Officers found a silver .357 Magnum handgun in the area
where Officer Cummings saw Boyce throw a gun. Officers also
found three .357 bullets in Boyce’s right front pants pocket
after they arrested him.
Boyce was charged with one count of being a felon in
possession of a firearm and one count of being a felon in
possession of ammunition, in violation of 18 U.S.C. § 922(g)(1)
and § 924(e)(1). While he was in jail awaiting trial, Boyce sent
Portis a letter requesting that she recant her statement that he
had a gun. He even provided the language he wanted her to
use in a letter he wanted her to write to him:
It seems like my whole life is going down since
I called the police and I lied on you. I didn’t
know that those police was going to actually put
a gun on you. Like I said before, I am so sorry for
calling them and lying about you had a gun and
hit me, but you just misunderstand how I felt
when I saw you and the other girl hugging and
kissing … . So the only way I thought of paying
4 No. 13-1087

you back was to call the police and get you
locked up once again. I’m so sorry.
Boyce and Portis also spoke by telephone while he was in
jail, and Boyce said “our story” to which they would stick was
that Portis made the whole thing up because she was mad he
had been talking to another woman.
Portis did not testify at trial, but the government played a
recording of her 911 call for the jury. In arguing that Boyce
possessed a firearm on March 27, 2010, the government
pointed to Officer Cummings’s testimony that he saw Portis
throw a gun, other officers’ testimony recounting the recovery
of the gun in the area and ammunition matching the gun in
Boyce’s pocket, and Portis’s statement on the 911 call that
Boyce had a gun. A jury found Boyce guilty on both charged
counts. The district court concluded that Boyce had three prior
violent felonies or serious drug offenses that mandated a
minimum term of fifteen years’ imprisonment under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). The court
sentenced him to 210 months’ imprisonment, two and a half
years over the mandatory minimum sentence. Boyce appeals.
II. ANALYSIS
A. No Restoration of Civil Rights
Before we consider the admission of Portis’s statements in
the 911 call, we address Boyce’s argument that the indictment
against him should have been dismissed. Boyce contends that
the district court should have granted his motion to dismiss the
indictment for lack of a qualifying predicate felony conviction.
We review that decision de novo, and we review the district
court’s factual findings for clear error. United States v. Greve,
490 F.3d 566, 570 (7th Cir. 2007).
No. 13-1087 5

Boyce was charged with being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).
A prior felony is not a predicate offense for a § 922(g)(1)
violation if the defendant “has been pardoned or has had civil
rights restored” unless the “restoration of civil rights expressly
provides” that the person may not possess firearms. 18 U.S.C.
§ 921(a)(20). Boyce maintains his civil rights had been restored
regarding his prior felony convictions before he possessed the
gun and ammunition in this case, and, therefore, that he did
not have a predicate felony for purposes of § 922(g)(1).
Boyce was convicted of five state felonies in 1991 and
received concurrent prison terms. He was released from prison
in 1993 and placed on supervised release. While on supervised
release, he was arrested and convicted of unlawful use of a
weapon (“UUW”). Because of that conviction, his supervised
release on the prior 1991 convictions was revoked, and he
returned to prison. The district court found that his sentence on
the parole revocation ended on December 23, 1995. Boyce
remained in prison, however, because he still had more time to
serve on the UUW charge. Boyce completed his prison term on
the UUW charge on February 6, 1996 and began a one-year
period of supervised release on that charge. He completed that
term on February 6, 1997. He then received a form letter
informing him of the restoration of his right to vote and to hold
state office. Specifically, the letter stated:
We are pleased to inform you of the restoration
of your right to vote and to hold offices created
under the constitution of the state of Illinois. You
also have the right to restoration of licenses
granted to you under the authority of the State of
Illinois if such license was revoked solely as a
result of your conviction, unless the licensing
6 No. 13-1087

authority determined that such restoration
would not be in the public interest.
This form letter that Boyce received was the same form letter
we have already held constitutes a restoration of civil rights for
purposes of § 921(a)(20). See Buchmeier v. United States, 561 F.3d
561 (7th Cir. 2009) (en banc).
That does not end the analysis, however, as the pertinent
question is whether the letter restored Boyce’s civil rights on all
his previous felonies or just on the UUW felony. Unfortunately
for Boyce, we have considered and rejected the argument that
the letter restored civil rights on all his previous felonies. We
said in United States v. Burnett, 641 F.3d 894 (7th Cir. 2011), that
a letter telling a former prisoner that his civil rights have been
restored applies conviction-by-conviction. Id. at 896. We
concluded in that case that where a defendant finished his
sentence for a parole revocation in 1994 but remained in prison
on a murder conviction until 1999, the form letter he received
after his release in 1999—the same form letter Boyce
received—only restored his civil rights on the murder
conviction. Id. Burnett reached that conclusion despite recog-
nizing that “[i]t may well be that Illinois refrained from
sending Burnett letters in 1994 about his [other] convictions
because the ongoing custody for the murder conviction meant
he could not vote or hold public office.” Id. at 897. Boyce does
not ask us to overturn Burnett. He points out that the defen-
dant in Burnett spent more time in prison for the new offense
after the end of his parole revocation sentence than Boyce, but
we do not find that distinction material here.
Burnett did suggest that a person who received a
restoration letter after serving multiple concurrent sentences
that expired on the same day might have his civil rights
No. 13-1087 7

restored on all convictions. Id. at 896. In light of that, Boyce
argues that the district court erred when it relied on an
affidavit from the Chief Records Officer for the Illinois Depart-
ment of Corrections that calculated Boyce’s discharge revoca-
tion date as December 23, 1995. He contends that his sentence
for his five 1991 convictions may have ended as early as mid-
September 1995 or as late as “well beyond December 23, 1995.”
But he offers no evidence that his parole revocation and UUW
sentences terminated on the same date, and it is his burden to
“produce evidence showing that his civil rights have been
restored.” United States v. Foster, 652 F.3d 776, 791–92 (7th Cir.
2011). We find no clear error in the district court’s determina-
tion that his sentences did not terminate on the same date, and,
following Burnett, we affirm the denial of Boyce’s motion to
dismiss the indictment.
B. 911 Call Properly Admitted
We next turn to Boyce’s argument that the government
should not have been allowed to introduce Portis’s 911 call at
trial. Portis did not testify at trial. The jury still heard her voice,
though, as the government played the audio recording of her
911 call during the trial. (The jury received a transcript of the
call as well.) The district court admitted Portis’s 911 call on the
basis that it was a present sense impression under Federal Rule
of Evidence 803(1) and an excited utterance under Federal Rule
of Evidence 803(2). Boyce maintains that the call does not fall
within either of these hearsay exceptions. We review the
district court’s evidentiary rulings for an abuse of discretion.
United States v. Joy, 192 F.3d 761, 766 (7th Cir. 1999).
Rule 803(1), the present sense impression exception,
provides that “[a] statement describing or explaining an event
or condition, made while or immediately after the declarant
8 No. 13-1087

perceived it” is not excluded by the rule against hearsay. Rule
803(2) sets forth the exception for an “excited utterance,”
defined by the rule as “[a] statement relating to a startling
event or condition, made while the declarant was under the
stress of the excitement that it caused.”
The theory underlying the present sense impression
exception “is that substantial contemporaneity of event and
statement negate the likelihood of deliberate or conscious
misrepresentation.” Fed. R. Evid. 803 advisory committee’s
note. Along similar lines, the idea behind the excited utterance
exception is that “circumstances may produce a condition of
excitement which temporarily stills the capacity of reflection
and produces utterances free of conscious fabrication.” Id. In
other words, the statement must have been a spontaneous
reaction to the startling event and not the result of reflective
thought. 2 McCormick on Evidence § 272 (7th ed. 2013).
But that is not to say the spontaneity exceptions in the
Federal Rules of Evidence necessarily rest on a sound found-
ation. We have said before regarding the reasoning behind the
present sense impression that “[a]s with much of the folk
psychology of evidence, it is difficult to take this rationale
entirely seriously, since people are entirely capable of spontan-
eous lies in emotional circumstances.” See Lust v. Sealy, 383
F.3d 580, 588 (7th Cir. 2004) (noting studies showing that less
than one second is needed to fabricate a lie) (citing Douglas D.
McFarland, Present Sense Impressions Cannot Live in the Past, 28
Fla. St. U. L. Rev. 907, 916 (2001)). As for the excited utterance
exception, “The entire basis for the exception may … be
questioned. While psychologists would probably concede that
excitement minimizes the reflective self-interest influencing the
declarant’s statements, they have questioned whether this
might be outweighed by the distorting effect of shock and
No. 13-1087 9

excitement upon the declarant’s observation and judgement.”
2 McCormick on Evidence § 272 (7th ed. 2013).
Nonetheless, we have recognized that despite these issues,
the exceptions are well-established. See Ferrier v. Duckworth,
902 F.2d 545, 547–48 (7th Cir. 1990); see also White v. Illinois, 502
U.S. 346, 356 n.8 (1992) (describing excited utterance as a
“firmly rooted” exception to the general prohibition against
hearsay). Boyce, while pointing to some of this criticism, does
not ask us to find the exceptions utterly invalid, and so we
proceed to consider his arguments that the exceptions do not
apply in the circumstances of his case.
To take the Rule 803(1) present sense impression exception
first, we have said that to be admissible under this rule, “(1) the
statement must describe an event or condition without
calculated narration; (2) the speaker must have personally
perceived the event or condition described; and (3) the state-
ment must have been made while the speaker was perceiving
the event or condition, or immediately thereafter.” United
States v. Ruiz, 249 F.3d 643, 646 (7th Cir. 2001). Here, Portis was
personally present during the domestic battery she recounted
during the 911 call. The questions here are whether Portis’s
statements were made without calculated narration and
whether her 911 call was sufficiently contemporaneous to
constitute a present sense impression.
To take the timing issue first, while Portis did not call 911
as Boyce was hitting her, nor would that have been feasible or
wise to do, the Advisory Committee’s Note to Federal Rule of
Evidence 803 “recognizes that in many, if not most, instances
precise contemporaneity is not possible and hence a slight
lapse is allowable.” See also, e.g., Ruiz, 249 F.3d at 647
(upholding admission of statements made “shortly after”
10 No. 13-1087

observations). Portis’s statements to the 911 operator that
Boyce had “just” hit her and that she had “just” run upstairs to
her neighbor’s house indicate that she called 911 nearly
immediately after her observations. That timing is consistent
with other circuits’ interpretation of the present sense
impression exception. See, e.g., United States v. Davis, 577 F.3d
660, 669 (6th Cir. 2009) (admitting 911 call where caller re-
ported seeing defendant with a gun as present sense impres-
sion and excited utterance in § 922(g)(1) case and stating it did
not matter whether statements were made thirty seconds or
five minutes after witnessing event); United States v. Shoup, 476
F.3d 38, 42 (1st Cir. 2007) (finding that statements in 911 call
made about one to two minutes after leaving dangerous
situation and going into apartment constituted present sense
impression and excited utterance).
A statement must also be made without calculated narra-
tion to qualify under the present sense impression exception,
United States v. Woods, 301 F.3d 556, 562 (7th Cir. 2002), and
Boyce points out that Portis did not mention a gun until
questioned by the dispatcher as to whether Boyce had any
weapons. One can still make statements without calculated
narration even if made in responses to questions. Cf. United
States v. Thomas, 453 F.3d 838, 844 (7th Cir. 2006) (admitting 911
call, including responses to operator questions, as present
sense impression).1 Here, notably, when the operator asked

1
The argument that responding to questions precludes the application of
a spontaneity exception could also be made with regard to the excited
utterance exception, an exception we will turn to next. We note that in the
excited utterance context, we have stated that the fact that a declarant “was
answering questions, rather than giving a spontaneous narrative, does not
indicate that he was not excited when he provided the answers.” Joy, 192
(continued...)
No. 13-1087 11

what kind of weapon, Portis told the operator “a gun.” The
operator did not ask whether Boyce had a gun; it was Portis
who first brought up the gun’s presence.
But answering questions rather than giving a spontaneous
narration could increase the chances that the statements were
made with calculated narration, and, as we discussed, Portis
ran to another residence between the battery and her 911 call.
We need not definitively decide whether these concerns mean
Portis’s statements fail to qualify under the present sense
impression exception because even if they did, they would still
be admissible as an excited utterance. The excited utterance
exception “allows for a broader scope of subject matter
coverage” than the present sense impression. United States v.
Moore, 791 F.2d 566, 572 (7th Cir. 1986). This is because the
Federal Rules of Evidence provide that an excited utterance
includes a statement “relating to” a startling event, Fed. R.
Evid. 803(2), while the present sense impression exception is
limited to “describing or explaining” the event, Fed. R. Evid.
803(1); see also Moore, 791 F.2d at 572.
For the excited utterance exception to apply, we have said
that the proponent must demonstrate that: “(1) a startling
event occurred; (2) the declarant makes the statement under
the stress of the excitement caused by the startling event; and
(3) the declarant’s statement relates to the startling event.” Joy,
192 F.3d at 767. The statement “need not be contemporaneous
with the startling event to be admissible under rule 803(2) …
[r]ather, the utterance must be contemporaneous with the
excitement engendered by the startling event.” Id. at 765
(citation and internal quotation marks omitted); see also United

1
(...continued)
F.3d at 767; see also United States v. Martin, 59 F.3d 767, 770 (8th Cir. 1995).
12 No. 13-1087

States v. Wesela, 223 F.3d 656, 663 (7th Cir. 2000) (stating timing
of statement important but not controlling and that what
matters is whether statement made “contemporaneously with
the excitement resulting from the event, not necessarily with
the event itself”) (citations omitted).
Here, the startling event of a domestic battery occurred.
Portis called 911 and reported that Boyce had just hit her and
was “going crazy for no reason” and that he had a gun. Next,
Portis made her 911 call while under the stress of the excite-
ment caused by the domestic battery. She made the call right
after the battery, telling the operator that she had “just” run
upstairs to her neighbor’s house. Officer Solomon’s testimony
that Portis appeared emotional, as though she had just been in
an argument or fight, further supports the district court’s
conclusion that Portis made the call while under the stress or
excitement of the startling event.
Boyce principally takes issue with the district’s court
finding that her statements related to the startling event. In
particular, he argues that the gun Portis described in the call
was not related to the domestic battery she was reporting.
Instead, he says, her reference to a gun in the call referred to a
separate, earlier time when Boyce possessed a gun.
We do not find an abuse of discretion in the district court’s
determination that Boyce’s statement in the call that she had
seen Boyce with a gun was related to the domestic battery.
During her call to 911 requesting help from the police, Portis
told the operator that Boyce had a gun and responded “Yes!”
several times when the operator asked if she had seen it. Upon
further questioning she replied that she was “positive.” When
the dispatcher asked Portis whether any weapons were
involved, the dispatcher was trying to obtain information
No. 13-1087 13

regarding the battery and the level of danger posed by her
assailant. And Portis said a weapon, in particular a gun, was
involved. In doing so, Portis provided the dispatcher with
information about her assailant and the danger she experi-
enced just minutes before the call. This description of the threat
posed by the man who battered her relates to the incident
which produced her agitated state.
In addition to stating in the 911 call, and then confirming
multiple times, that Boyce had a gun, Boyce stated in response
to the government’s motion in limine that Portis told the
responding officers Boyce had physically assaulted her and
that she had witnessed him take a gun from a bedroom dresser
before leaving the apartment. Boyce points out that although
the probation officer interviewed Portis while preparing the
Presentence Report, there is nothing in it that suggests that
Portis recounted seeing Boyce with a gun to the probation
officer. The district court’s decision to allow the account Portis
gave in the immediate aftermath of the event, before she had
the time to consider the effect it might have on the father of her
children (and Boyce’s communications to Portis suggest he was
trying to influence her), is consistent with the rationale
underlying the excited utterance exception. And while corrob-
oration is not required for admissibility, see Ruiz, 249 F.3d at
647, here Portis’s statement that Boyce had a gun was corrobo-
rated by Officer Cummings’s testimony that he saw Boyce
throw a gun and by the testimony of other officers who
recovered the gun and found bullets matching the gun in
Boyce’s pocket.
Even if Boyce is correct that his gun was not at arms’ length
while he struck her, if a domestic battery victim in Portis’s
circumstances knows her assailant has access to a gun nearby,
the potential for more lethal force to be used against her would
14 No. 13-1087

be a subject likely to be evoked in the description of her
assault. See Moore, 791 F.2d at 572 (quoting 4 Weinstein
Evidence ¶ 803(2)[01] at 803–95 (1985) in explaining excited
utterances: “If the subject matter of the statement is such as
would likely be evoked by the event, the statement should be
admitted.”). Under the facts of this case, we find no abuse of
discretion in the district court’s decision to admit Portis’s
statements during the 911 call as excited utterances under Rule
803(2).
C. Enhanced Sentencing Penalty Proper
Boyce also argues that his sentence under the Armed
Career Criminal Act, 18 U.S.C. § 924(e), was improper because
a jury did not find the fact of his prior convictions beyond a
reasonable doubt. As support, Boyce points to the Supreme
Court’s decision earlier this year holding that any fact that
increases the mandatory minimum sentence for a crime is an
element and must be submitted to the jury and found beyond
a reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151,
2158 (2013). Alleyne, however, did not change the rule
announced in Almendarez-Torres v. United States, 523 U.S. 224
(1998), that the fact of a prior conviction need not be alleged in
the indictment or proven to a jury beyond a reasonable doubt.
The Court explicitly stated in Alleyne that it was not revisiting
its Almendarez-Torres decision because the parties had not
raised it. 133 S. Ct. at 2160 n.1. Until the Supreme Court tells us
otherwise, we will continue to apply Almendarez-Torres, and so
we decline to set aside Boyce’s sentence on this ground.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
No. 13‐1087  15 

POSNER, Circuit Judge, concurring. I agree that the district 
court should be affirmed—and indeed I disagree with noth‐
ing in the court’s opinion. I write separately only to express 
concern with Federal Rules of Evidence 803(1) and (2), which 
figure in this case. That concern is expressed in a paragraph 
of the majority opinion; I seek merely to amplify it. 
Portis’s  conversation  with  the  911  operator  was  a  major 
piece of  evidence  of the defendant’s  guilt.  What  she said  in 
the  conversation,  though  recorded,  was  hearsay,  because  it 
was an out‐of‐court statement offered “to prove the truth of 
the  matter  asserted,”  Fed.  R.  Evid.  801(c)(2)—namely  that 
the  defendant  (Boyce)  had  a  gun—rather  than  to  rebut  a 
charge of recent fabrication or of a recently formed improper 
motive,  Fed.  R.  Evid.  801(d)(1)(B),  by  showing  that  the  per‐
son making the statement had said the same thing before the 
alleged fabrication or the formation of the improper motive. 
30B  Michael  H.  Graham,  Federal  Practice  &  Procedure  § 7012, 
pp.  128–45  (interim  ed.  2011).  But  the  government  argued 
and the district court agreed that Portis’s recorded statement 
was admissible as a “present sense impression” and an “ex‐
cited  utterance.”  No  doubt  it  was  both  those  things,  but 
there is profound doubt whether either should be an excep‐
tion to the rule against the admission of hearsay evidence. 
One  reason  that  hearsay  normally  is  inadmissible 
(though the bar to it is riddled with exceptions) is that it of‐
ten is no better than rumor or gossip, and another, which is 
closely related, is that it can’t be tested by cross‐examination 
of its author. But in this case either party could  have called 
Portis  to  testify,  and  her  testimony  would  not  have  been 
hearsay.  Neither  party  called  her—the  government,  doubt‐
less  because  Portis  recanted  her  story  that  Boyce  had  had  a 
16  No. 13‐1087 

gun after he wrote her several letters from prison asking her 
to  lie  for  him  and  giving  her  detailed  instructions  on  what 
story  she  should  make  up;  Boyce,  because  her  testimony 
would  have  been  likely  to  reinforce  the  evidence  of  the  let‐
ters  that  he  had  attempted  to  suborn  perjury,  and  also  be‐
cause  his  sexual  relationship  with  Portis  began  when  she 
was only 15. Boyce’s counsel said “the concern is that if Ms. 
Portis were to testify, she does look somewhat young and so 
the jury could infer … that this relationship could have start‐
ed when she was underage.” 
To  get  her  recorded  statement  admitted  into  evidence, 
the government invoked two exceptions to the hearsay rule. 
One, stated in Rule 803(1) and captioned “present sense im‐
pression,”  allows  into  evidence  “a  statement  describing  or 
explaining an event or condition, made while or immediate‐
ly  after  the  declarant  perceived  it.”  The  other—the  “excited 
utterance” exception of Rule 803(2)—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.” 
The  rationale  for  the  exception  for  a  “present  sense  im‐
pression” is that if the event described and the statement de‐
scribing it are near to each other in time, this “negate[s] the 
likelihood  of  deliberate  or  conscious  misrepresentation.” 
Advisory  Committee  Notes  to  1972  Proposed  Rules.  I  don’t 
get  it,  especially  when  “immediacy”  is  interpreted  to  en‐
compass periods as long as 23 minutes, as in United States v. 
Blakey,  607  F.2d  779,  785–86  (7th  Cir.  1979),  16  minutes  in 
United  States  v.  Mejia‐Velez,  855  F.  Supp.  607,  614  (E.D.N.Y. 
1994), and 10 minutes in State v. Odom, 341 S.E.2d 332, 335–
36  (N.C.  1986).  Even  real  immediacy  is  not  a  guarantor  of 
No. 13‐1087  17 

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. See, 
e.g., Monica T. Whitty et al., “Not All Lies Are Spontaneous: 
An  Examination  of  Deception  Across  Different  Modes  of 
Communication,” 63 J. Am. Society of Information Sci. & Tech‐
nology  208,  208–09,  214  (2012),  where  we  read  that  “as  with 
previous  research,  we  found  that  planned  lies  were  rarer 
than spontaneous lies.” Id. at 214. Suppose I run into an ac‐
quaintance on the street and he has a new dog with him—a 
little  yappy  thing—and  he  asks  me,  “Isn’t  he  beautiful”?  I 
answer  yes,  though  I’m  a  cat  person  and  consider  his  dog 
hideous. 
I am not alone in deriding the “present sense impression” 
exception to the hearsay rule. To the majority opinion’s quo‐
tation  from  Lust  v.  Sealy,  Inc.,  383  F.3d  580,  588  (7th  Cir. 
2004)—“as with much of the folk psychology of evidence, it 
is difficult to take this rationale [that immediacy negates the 
likelihood of fabrication] entirely seriously, since people are 
entirely  capable  of  spontaneous  lies  in  emotional  circum‐
stances”—I  would  add  the  further  statement  that  “‘old  and 
new  studies  agree  that  less  than  one  second  is  required  to 
fabricate a lie.’” Id., quoting Douglas D. McFarland, “Present 
Sense Impressions Cannot Live in the Past,” 28 Fla. State U. 
L.  Rev.  907,  916  (2001);  see  also  Jeffrey  Bellin,  “Facebook, 
Twitter,  and  the  Uncertain  Future  of  Present  Sense  Impres‐
sions,” 160 U. Pa. L.  Rev.  331, 362–66 (2012); I. Daniel  Stew‐
art,  Jr.,  “Perception,  Memory,  and  Hearsay:  A  Criticism  of 
Present  Law  and  the  Proposed  Federal  Rules  of  Evidence,” 
1970 Utah L. Rev. 1, 27–29. Wigmore made the point emphat‐
ically 110 years ago. 3 John Henry Wigmore, A Treatise on the 
System  of  Evidence  in  Trials  at  Common  Law  § 1757,  p.  2268 
(1904)  (“to  admit  hearsay  testimony  simply  because  it  was 
18  No. 13‐1087 

uttered at the time something else was going on is to intro‐
duce  an  arbitrary  and  unreasoned  test,  and  to  remove  all 
limits of principle”). 
It  is  time  the  law  awakened  from  its  dogmatic  slumber. 
The  “present  sense  impression”  exception  never  had  any 
grounding  in  psychology.  It  entered  American  law  in  the 
nineteenth century, see Jon R. Waltz, “The Present Sense Im‐
pression Exception to the Rule Against Hearsay: Origins and 
Attributes,” 66 Iowa L. Rev. 869, 871 (1981), long before there 
was a field of cognitive psychology; it has neither a theoreti‐
cal nor an empirical basis; and it’s not even common sense—
it’s not even good folk psychology.  
The  Advisory  Committee  Notes  provide  an  even  less 
convincing  justification  for  the  second  hearsay  exception  at 
issue in this case, the “excited utterance” rule. The proffered 
justification  is  “simply  that  circumstances  may  produce  a 
condition of excitement which temporarily stills the capacity 
of reflection and produces utterances free of conscious fabri‐
cation.”  The  two  words  I’ve  italicized  drain  the  attempted 
justification of any content. And even if a person is so excit‐
ed  by  something  that  he  loses  the  capacity  for  reflection 
(which doubtless does happen), how can there be any confi‐
dence  that  his  unreflective  utterance,  provoked  by  excite‐
ment, is reliable? “One need not be a psychologist to distrust 
an observation made under emotional stress; everybody ac‐
cepts  such  statements  with  mental  reservation.”  Robert  M. 
Hutchins  &  Donald  Slesinger,  “Some  Observations  on  the 
Law  of  Evidence:  Spontaneous  Exclamations,”  28  Colum.  L. 
Rev. 432, 437 (1928). (This is more evidence that these excep‐
tions  to  the  hearsay  rule  don’t  even  have  support  in  folk 
psychology.) 
No. 13‐1087  19 

As  pointed  out  in  the  passage  that  the  majority  opinion 
quotes from the McCormick treatise, “The entire basis for the 
[excited  utterance]  exception  may  …  be  questioned.  While 
psychologists would probably concede that excitement min‐
imizes  the  possibility  of  reflective  self‐interest  influencing 
the  declarant’s  statements,  they  have  questioned  whether 
this  might  be  outweighed  by  the  distorting  effect  of  shock 
and  excitement  upon  the  declarant’s  observation  and 
judgement.”  2  McCormick  on  Evidence  § 272,  p.  366  (7th  ed. 
2013). 
The  Advisory  Committee  Notes  go  on  to  say  that  while 
the excited utterance exception  has been criticized,  “it  finds 
support in cases without number.” I find that less than reas‐
suring. Like the exception for present sense impressions, the 
exception  for  excited  utterances  rests  on  no  firmer  ground 
than judicial habit, in turn reflecting judicial incuriosity and 
reluctance to reconsider ancient dogmas. 
I  don’t  want  to  leave  the  impression  that  in  questioning 
the  present  sense  and  excited  utterance  exceptions  to  the 
hearsay  rule  I  want  to  reduce  the  amount  of  hearsay  evi‐
dence admissible in federal trials. What I would like to see is 
Rule 807 (“Residual Exception”) swallow much of Rules 801 
through 806 and thus many of the exclusions from evidence, 
exceptions  to  the  exclusions,  and  notes  of  the  Advisory 
Committee. The “hearsay rule” is too complex, as well as be‐
ing  archaic.  Trials  would  go  better  with  a  simpler  rule,  the 
core of which would be the proposition (essentially a simpli‐
fication of Rule 807) that hearsay evidence should be admis‐
sible  when  it  is  reliable,  when  the  jury  can  understand  its 
strengths  and  limitations,  and  when  it  will  materially  en‐
hance the likelihood of a correct outcome.