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Concept Breakdowns

FRE 803 Excited Utterance vs Present Sense Impression

These flashcards cover the two most-confused hearsay exceptions under FRE 803 — the excited utterance (803(2)) and the present sense impression (803(1)) — and are essential for the Multistate Bar Exam (MBE). Both allow out-of-court statements into evidence without a live declarant, yet they differ in timing, stress requirements, and scope. Mastering the distinctions helps students quickly identify which exception applies on MBE evidence questions and avoid common answer-trap errors.

Interactive Deck

5 Cards
1
Front

What is an excited utterance under FRE 803(2)?

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Back

Excited utterance: A statement relating to a startling event made while the declarant was under the stress or excitement caused by that event. The declarant need not have personally observed the event, and there is no strict time limit — stress must still dominate.

2
Front

What is a present sense impression under FRE 803(1)?

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2
Back

Present sense impression: A statement describing or explaining an event or condition made while the declarant was perceiving it or immediately after. Unlike excited utterance, no excitement is required — only near-contemporaneous observation.

3
Front

What are the three elements of an excited utterance?

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3
Back
  • A startling event or condition occurred
  • The declarant made the statement while under the stress/excitement caused by it
  • The statement relates to the startling event

Note: The declarant need not be a percipient witness to the event itself.

4
Locked

How do timing requirements differ between FRE 803(1) and 803(2)?

5
Locked

Which exception requires personal observation of the event?

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Frequently Asked Questions

What is the difference between excited utterance and present sense impression?

Present sense impression (FRE 803(1)) requires a statement made while or immediately after perceiving an event — timing is strict, but no excitement is needed. Excited utterance (FRE 803(2)) requires a startling event and that the declarant was still under its emotional stress — no strict time limit, but excitement must persist.

  • 803(1): strict timing, no stress required
  • 803(2): flexible timing, stress/excitement required

Does an excited utterance require the declarant to witness the event?

Generally no. Under FRE 803(2), the declarant need not have personally observed the startling event — they only need to have been under the stress it caused. For example, a bystander who heard a crash and screamed could qualify. MBE questions often test this nuance.

How do I know which hearsay exception to apply on the MBE?

Ask two questions: (1) Was there a startling event and was the declarant still stressed? If yes, excited utterance. (2) Was the statement made at or nearly at the moment of perception with no excitement required? If yes, present sense impression. When both seem applicable, courts analyze timing and emotional state to distinguish them.

Can a 911 call qualify as an excited utterance?

Yes. 911 calls are frequently admitted as excited utterances when the caller is still under the stress of a startling event such as a crime or accident. Courts look at the totality of circumstances — tone of voice, time elapsed, and whether the declarant was still dominated by the excitement when speaking.