A fun paragraph from Judge Posner

From Judge Posner’s opinion in United States v. Boyce (7th Cir. Feb. 13, 2014), which criticized the “present sense impression” and “excited utterance” hearsay exceptions:

The rationale for the exception for a “present sense impression” is that if the event described and the statement describing 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 encompass periods as long as 23 minutes, … 16 minutes …, and 10 minutes [citing three cases]. Even real immediacy is not a guarantor of 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. & Technology 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 acquaintance 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.

Also on The Volokh Conspiracy

Thoughts on oral argument in Notre Dame v. Sebelius