Lira v. Albert Einstein Medical Center 384 Pa.Super. 503, 559 A.2d 550 (1989)
Lira was in the hospital and was injured due to the
actions of a doctor at Albert Einstein Medical Center (AEMC).
Lira and her husband went to another doctor (Silberman)
who examined Lira, and (according to her husband) exclaimed, "Who's
the butcher who did this!"
At trial, Lira's husband was called to the stand and
testified that Silberman made the statement.
AEMC objected on the grounds that the out-of-court
statement was hearsay.
Lira argued that the statement was not hearsay,
because it met an exception for being a present sense exception
(See FRE 803(1)).
A present sense impression is a statement
describing or explaining an event of condition made while the declarant
was perceiving the event or condition.
Lira further argued that it also met the exception as an excited
utterance (see FRE 803(2)).
An excited utterance is a statement related to a
startling event or condition made while the declarant was under the
stress of excitement caused by the event of condition.
The Trial Judge agreed that the testimony was not
admissible and gave the jury an instruction to ignore it.
However, the Trial Judge did not order a mistrial.
The Trial Court found for Lira.
The Trial Judge admitted that he made a mistake in not
ordering a mistrial and threw out the verdict and ordered a new trial.�
Lira appealed.
The Appellate Court agreed that there should be a new
trial.
The Appellate Court found that Silberman's statement was
clearly hearsay.
It was an out-of-court statement offered to prove the
truth of the matter asserted.
The Appellate Court found that Silberman's statement was
not an excited utterance because, while he may have been
concerned, he wasn't "overcome by emotion."
The Appellate Court found that Silberman's statement was
not a present sense impression because in order to qualify, a
statement must be "instinctive, not deliberate."
Aka, the reflex product of immediate sensual
impressions, unaided by retrospective mental action.
There is a catch-22 in this case.� In order to qualify as
a present sense impression or an excited utterance, the
statement has to be made without really thinking about it too hard.� But
the doctor was an expert witness, which requires that he thinks
about things and gives an informed opinion.