A fun paragraph from Judge Posner

February 14, 2014

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.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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