“Statements are more likely to be accurate the closer they are in time to the events they describe … that is the spirit behind the traditional ‘present sense impression’ … exception[] to the hearsay rule” which “permits the introduction into evidence of a ‘statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.’”
How later courts described this case
- “Statements are more likely to be accurate the closer they are in time to the events they describe … that is the spirit behind the traditional ‘present sense impression’ … exception[] to the hearsay rule” which “permits the introduction into evidence of a ‘statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.’”
- “Contemporaneousness may indicate that statements were truthful only where the speaker would not have had time to fabricate a story. Indeed, that is the spirit behind the traditional ‘present sense impression’ and ‘excited utterance’ exceptions to the hearsay rule.”
- “[B]ecause the failure to provide a medical certification is an independent basis for denying FMLA leave notwithstanding the appropriateness of that leave, we need not consider whether Kinds actually had a serious health condition during the period in question.”
- “[U]nder 28 U.S.C. § 2254 (d), “clearly established Federal law” is the law at the time the original decision was made, not … the law “before the conviction became final.”
Written by the judges who cited it.
The opinion
KAREN NELSON MOORE, Circuit Judge,
concurring in the judgment.
I agree that habeas relief is unwarranted at this time. In light of Greene v. Fisher, — U.S. -, 132 S.Ct. 38, 43 , 181 L.Ed.2d 336 (2011), I agree with the majority opinion that the “clearly established federal law” applicable in this case is the law under Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), which permits the admission of hearsay evidence when the declarant is unavailable for cross-examination only if the evidence bears “adequate ‘indicia of reliability.’ ” I cannot say that the admission of Cassaday’s suicide note was contrary to or an unreasonable application of the relevant federal law. See 28 U.S.C. § 2254 (d). Therefore, I join in the judgment affirming the judgment of the district court.