Schindler v. Seiler, 474 F.3d 1008 

U.S. Court of Appeals Seventh Circuit

2007

Chapter

6

Title

Hearsay

Page

210

Topic

803(1) Present Sense Impression

Quick Notes

The Dr. Schindler alleged that Seiler had defamed him by informing a third party, Dr. White, that the Dr. Schindler was a "bad doctor" who had "paralyzed four patients." Both the Seiler and Dr. White denied that the Seiler made these statements. The sole evidence offered by Dr. Schindler to prove that these statements were made was his own testimony that Dr. White had said to him, "the individual is downstairs right now and just told me that you paralyzed four patients."

o    Because Dr. White's statement to Dr. Schindler was a calculated narration, made for a specific reason, and Dr. Schindler has failed to present admissible evidence of the statement's immediacy, the present sense impression exception to the hearsay rule does not apply

Rule 803(1) Present sense impression.

o    A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Three requirements

1.     The statement must describe an event or condition without calculated narration;

2.     The speaker must have personally perceived the event or condition described; and

3.     The statement must have been made while the speaker was perceiving the event or condition, or immediately thereafter."

Note

o    A declarant who deliberates about what to say or provides statements for a particular reason creates the possibility that the statements are not contemporaneous, and, more likely, are calculated interpretations of events rather than near simultaneous perceptions.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether Dr. Schindlers own statement fails the present sense impression exception?  Yes, he failed.

Procedure

Trial

o         United States District Court for the Western District of Wisconsin which granted summary judgment to defendants

Appellant

o         The judgment was affirmed

Facts

Discussion

Key Phrases

Rules

Pl - Dr. Schindler

Df Seiler

Description

o         The Dr. Schindler brought this diversity action, alleging that Seiler had defamed him by informing a third party, Dr. White, that the Dr. Schindler was a "bad doctor" who had "paralyzed four patients." Both the Seiler and Dr. White denied that the Seiler made these statements. The sole evidence offered by Dr. Schindler to prove that these statements were made was his own testimony that Dr. White had said to him, "the individual is downstairs right now and just told me that you paralyzed four patients."

Dr. Schindler Arg The district court erred in excluding as inadmissible hearsay

o         The district court erred in excluding as inadmissible hearsay his testimony that Dr. White told him that "Joe Seiler is downstairs right now and just told me that you paralyzed four patients."

Court Hearsay Definition

o         Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted, and, generally, is inadmissible.

Dr. Schindler Argues - testimony is not being offered for TOA

o          Dr. Schindler contends that the district court erred because his testimony is not being offered to prove the truth of the matter asserted,

o    i.e., that Dr. Schindler paralyzed four patients.

o         Rather to prove that the defamatory statements were made

Court Hearsay Definition

o         Where a plaintiff attempts to introduce the testimony of an individual who did not personally witness the alleged defamatory statement but was later told by an-other that the statement was made, such testimony is rejected as hearsay.

o    This is precisely what Dr. Schindler is attempting to do through his own testimony

Seiler Testified - overhead others making derogatory remarks about Dr. Schindler

o         Seiler testified during his deposition that he had informed Dr. White that he had overhead others making derogatory remarks about Dr. Schindler.

o         Seiler denied, however, that he relayed any specific details of the derogatory statements to Dr. White.

Dr. White Testified Did say Seiler say bad doctor

o         Dr. White testified that Seiler had not told him that Dr. Schindler had paralyzed four patients or that Dr. Schindler was a bad doctor.

Count If Seiler said the bad doctor comment to White, then it would be admissible

o         Had Dr. White testified to the contrary, that Seiler had said to him that Dr. Schindler was a "bad doctor" who had "paralyzed four patients," Dr. White's testimony would be admissible.

Court - Dr. Schindler failed to present testimony

o         Dr. Schindler, however, has failed to present testimony from any individual who personally heard Seiler make the defamatory statements.

Court - Dr. Schindler's own testimony is being use to prove TOA

o         And Dr. Schindler's own testimony as to what Dr. White said to him is offered precisely to prove the ultimate fact in question and the truth of the matter asserted therein:

o    Seiler said to Dr. White that Dr. Schindler was a "bad doctor" who had "paralyzed four patients."

Dr. Schindler Argues Present Sense Impression

o         His testimony is admissible under the present sense impression exception.

Rule 803(1) Present sense impression.

o    A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Three requirements

1.     The statement must describe an event or condition without calculated narration;

2.     The speaker must have personally perceived the event or condition described; and

3.     The statement must have been made while the speaker was perceiving the event or condition, or immediately thereafter."

Note

o    A declarant who deliberates about what to say or provides statements for a particular reason creates the possibility that the statements are not contemporaneous, and, more likely, are calculated interpretations of events rather than near simultaneous perceptions.

Dr. White Comments were made at institutions outside of Eau Claire.

o    Concerned about Dr. Schindlers reputation.

o    He never claimed that he conveyed the information immediately after speaking with Seiler.

Court Dr. Schindler relies on his own testimony

         Because Dr. White's statement to Dr. Schindler was a calculated narration, made for a specific reason, and Dr. Schindler has failed to present admissible evidence of the statement's immediacy, the present sense impression exception to the hearsay rule does not apply.

Rules

Rule 803(1) Present sense impression.

o    A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Three requirements

1.     The statement must describe an event or condition without calculated narration;

2.     The speaker must have personally perceived the event or condition described; and

3.     The statement must have been made while the speaker was perceiving the event or condition, or immediately thereafter."

Note

o    A declarant who deliberates about what to say or provides statements for a particular reason creates the possibility that the statements are not contemporaneous, and, more likely, are calculated interpretations of events rather than near simultaneous perceptions.

Class Notes