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Exercise 21

Tutorial on the crimes of stalking and harassment for New Mexico judges

To show additional examples of how the defendant stalked the victim, the prosecution calls the victim's next door neighbor. The neighbor testifies that she and the victim met for coffee one morning to catch-up after a few weeks of not having spoken. The neighbor testifies that at the end of the fun and laugh-filled visit, she asked the victim "whatever happened to that guy from the post office you were interested in?" The neighbor testifies the victim shook her head and told her "oh….let me tell you what he did to me last month…." Defense counsel objects on hearsay grounds. The prosecutor states that the neighbor's testimony about what the victim told her falls under the hearsay exception of "present sense impression."

How should the judge rule on the hearsay objection?

A. Overrule the objection and allow the neighbor to testify to what the victim described because the hearsay statement is a "present sense impression" about what the victim was undergoing.
Answer A is incorrect. Rule 11-803(A) defines a "present sense impression" as "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." The victim's statement to her neighbor does not fit that time frame. Rather, it was made based upon recollection of events from weeks ago. As such, it is not a present sense impression. Please select another answer.
B. Sustain the objection and prevent the neighbor from completing her answer because the victim's description does not fall within the "present sense impression" hearsay exception.
Answer B is correct! Rule 11-803(A) defines a "present sense impression" as "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." The victim's statement to her neighbor does not fit that time frame. Rather, it was made based upon recollection of events from weeks ago. As such, it is not a present sense impression.
C. Overrule the objection and allow the neighbor to testify to what the victim described because the hearsay statement actually qualifies as an "excited utterance" hearsay exception, not the "present sense impression" exception.
Answer C is incorrect. Rule 11-803(A) defines a "present sense impression" as "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." The victim's statement to her neighbor does not fit that time frame. Rather, it was made based upon recollection of events from weeks ago. As such, it is not a present sense impression. The statement is not an excited utterance either. The passage of time of one month and the victim's light-hearted behavior reasonably suggest the statement to the neighbor was not made while under the stress caused by the stalking, as required under Rule 11-803(B). Please select another answer.
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