In a recent decision, United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), a garden variety case in which a 911 call was admitted under the Federal Rules of Evidence (FRE) hearsay exceptions for present sense impressions, FRE 803(1), and excited utterances, FRE 803(2), the U.S. Court of Appeals for the Seventh Circuit expressed its view that those exceptions do not necessarily rest on a sound foundation. However, since those exceptions were “well-established,” the court nonetheless applied them to the facts of the case and found them applicable. Id. at 796-797.
Judge Richard Posner in a provocative concurring opinion went a step further, noting “there is a profound doubt whether either [exception] should be an exception to the rule against the admission of hearsay evidence.” Id. at 800. In that connection, he further noted that the voluminous case law applying the exceptions are “less than reassuring…reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.” Id. at 802.
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