Bemis v. Edwards

45 F.3d 1369 (9th Cir. 1995)

 

RULE:

To qualify under the present sense impression or excited utterance exceptions, an out-of-court statement must be nearly contemporaneous with the incident described and made with little chance for reflection. Generally, a witness must have "personal knowledge of the matter" to which she testifies.In the context of hearsay, the declarant must also have personal knowledge of what she describes. Fed. R. Evid. 803 advisory committee's note.

FACTS:

 Appellant injured party broke into his own home when he forgot his keys, and came outside with a gun. Neighbors, who thought he was an armed burglar, called 911 and he was arrested. Appellant filed a civil rights action for use of excessive force against appellees, the city and certain police officers, pursuant to 42 U.S.C.S. § 1983. The district court has entered judgment in favor of appellees.

ISSUE:

Did the district court err in its decision to enter judgment in favor of the appellees?

ANSWER:

No.

CONCLUSION:

The Court held that the district court properly excluded the statements of a neighbor and police officer on the 911 tapes as hearsay. Furthermore, the court found that the statements did not qualify under the present sense impression or excited utterance exceptions because neither declarant had firsthand knowledge of the events he described. Following its findings, the Court concluded that appellant's action, though not successful, was not frivolous, and appellees were not entitled to attorney's fees. As there was no reversible error, the court affirmed the judgment in favor of appellees, the city and certain police officers, in the civil rights action filed by appellant injured party. 

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