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If the victim does not appear in court
or refuses to testify;
or if the victim testifies, but is evasive,
or claims not to remember what happened;
or if the
victim testifies, but changes the story, e.g. now claims there was
no assault or that the defendant was not the assailant;
then the prosecution may introduce prior
statements of the victim that are present sense impressions (Rule
11-803(A)).
Definition
Rule 11-803(A): The following are not
excluded by the hearsay rule, even though the declarant is available
as a witness:... A. Present sense impression. A statement describing
or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.
Foundation
A party who wants to introduce a prior statement into evidence as
a present sense impression must establish that when making the statement,
the declarant was actually in the process of, or had just completed,
experiencing or observing the event or condition described in the
statement. It is not necessary to establish that there was an exciting
event or that the declarant was under stress.
If thdeclarant is not present for trial, the proponent of the
prior statement must also show either that:
• the
statement was not testimonial; or
• the declarant is unavailable and the defendant had an opportunity for
cross-examination.
Admissibility
If admitted, the statement may be used for any purpose, including
substantive evidence to help prove the elements of a case.
Example
A dispatcher testifies about a 911 call she received in which the
victim shouted: "Send help! My boyfriend is after me with a
knife!" Even if such a call comes from a person other than
the victim, it falls under the present sense impression exception.
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