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RELIABILITY OF PRESENT SENSE IMPRESSION HEARSAY EVIDENCE

Timothy T. Lau

The hearsay exception for present sense impressions, premised on the assumption that these statements are generally reliable, has come under new challenge. This article presents an interdisciplinary review, drawing especially from the neurological, behavioral, and social sciences, of existing research findings related to the reliability of present sense impressions. The research is not conclusive, but provides some support for the idea that these statements may be reliable in terms of their reduced susceptibility to intentional and unintentional falsification and in terms of the heightened accuracy of honest observation under the circumstances in which such statements are made. The article concludes with some thoughts about the hearsay exception itself.

 Timothy T. Lau is a member of the Research Division of the Federal Judicial Center. The views expressed in this article are of the author alone and do not represent the views of the Federal Judicial Center or the Advisory Committee on the Federal Rules of Evidence of the Judicial Conference of the United States. The author thanks Jessica Snowden and Jason A. Cantone of the Federal Judicial Center for their helpful recommendations and suggestions during the process of writing this article and also thanks Elizabeth Wiggins, Molly Johnson, Timothy Reagan, Jim Eaglin, and Katelen Walsh of the Federal Judicial Center and George Fisher of Stanford Law School for their comments.

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TABLE OF CONTENTS

I. INTRODUCTION ...... 176 II. ASCERTAINING THE RELIABILITY OF HEARSAY STATEMENTS...... 178 III. REAL-LIFE EXAMPLES OF PSI HEARSAY EVIDENCE ...... 179 IV. SUSCEPTIBILITY OF PSI HEARSAY EVIDENCE TO FABRICATION, COACHING, AND CONFABULATION ...... 183 A. Fabrication and Coaching ...... 184 1. Opportunity to Falsify a PSI ...... 185 2. Deciding to Falsify a PSI ...... 187 3. Injecting Lies into a PSI ...... 191 4. Judge Posner’s Critique of the PSI Hearsay Exception ...... 195 B. Confabulation ...... 200 V. ACCURACY OF OBSERVATION UNDERLYING PSI HEARSAY EVIDENCE ...... 203 VI. CONCLUSIONS ABOUT THE PSI HEARSAY EXCEPTION ...... 204

I. INTRODUCTION

Anglo-American jurisprudence places a high value on cross-examination as a tool for discerning truth and accordingly distrusts hearsay evidence because of its inability to be challenged by cross-examination.1 In accordance with this tradition, Rule 802 of the Federal Rules of Evidence prohibits the admission of hearsay evidence.2 However, the Federal Rules of Evidence also recognize that some hearsay can still be valuable evidence. Rule 803 is premised “upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial.”3 Accordingly there are 23 categories of exceptions from the general prohibition against admitting hearsay.4 One of these is the present sense impression (“PSI”) exception defined in Rule 803(1) as “[a] statement describing or explaining an event or condition,

1. GEORGE E. DIX, ET AL., MCCORMICK ON EVIDENCE § 244 (Kenneth S. Broun ed., 7th ed. 2014). 2. FED. R. EVID. 802. “Hearsay” is defined as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” FED. R. EVID. 801. 3. FED. R. EVID. 803 and notes of advisory committee on proposed rules. 4. FED. R. EVID. 803. LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 177 made while or immediately after the declarant perceived it.”5 Another is the excited utterance (“EU”) exception, defined in Rule 803(2) as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”6 The rationale for these two hearsay exceptions can be found in the notes of the Advisory Committee on the Federal Rules of Evidence to Rule 803. With regard to the PSI hearsay exception, the notes state the “substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.”7 With regard to the EU hearsay exception, the notes explain that “circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.”8 In short, both of these hearsay exceptions are based on assumptions that statements are more likely to be truthful because they are made under circumstances that make lying difficult, that is, lying in substantial contemporaneity with an event or in response to a startling situation. These assumptions have their critics. Recently, in 2014, Judge Richard Posner wrote a concurring opinion in which he questioned the psychological foundation behind the PSI hearsay exception:

The “present sense impression” exception never had any grounding in psychology. It entered American law in the nineteenth century . . . long before there was a field of cognitive psychology; it has neither a theoretical nor an empirical basis; and it’s not even common sense—it’s not even good folk psychology.9

He offered a similar challenge to the EU hearsay exception, noting that it “rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.”10

This article is about PSI hearsay evidence and seeks to evaluate whether the assumptions underpinning the presumed reliability of such hearsay evidence are supported by scientific research.11 The question of EU hearsay reliability is set

5. FED. R. EVID. 803(1). 6. FED. R. EVID. 803(2). 7. FED. R. EVID. 803 notes of advisory committee on proposed rules. 8. Id. 9. United States v. Boyce, 742 F.3d 792, 801 (7th Cir. 2014) (Posner, J., concurring). 10. Id. at 802. 11. Certain parts of this article are based on a memorandum prepared for the Advisory Committee on the Federal Rules of Evidence. Memorandum from Timothy Lau, Research Assoc., Fed. Judicial Ctr., on the Reliability of Present Sense Impressions and Excited Utterances to the Advisory Comm. on the Rules of Evidence, in Agenda Book for Advisory LAU 6/6/2017 1:38 PM

178 GONZAGA LAW REVIEW Vol. 52:2 aside for a subsequent discussion, despite the fact noted by the Advisory Committee, that there is “considerable . . . overlap” between the scope of PSI and EU hearsay.12 This is because the discussion of the reliability of EU hearsay evidence necessarily involves a review of the literature about the impact of emotion on perception, which adds an extra level of complexity. However, PSI hearsay evidence about a “startling event or condition” made “under the stress of excitement,” even if it otherwise meets the requirements of the PSI hearsay exception, meets the definition of EU and also will be admissible under the EU hearsay exception.13 These statements which fall within the overlap between PSI and EU hearsay are better explored as part of the discussion about the EU hearsay exception. This article therefore focuses only on PSI hearsay evidence based on dispassionate observation of the subject event or condition.

II. ASCERTAINING THE RELIABILITY OF HEARSAY STATEMENTS

An evaluation normally requires an established grading standard. However, it is difficult to objectively define a standard of hearsay reliability and then to apply it in an evaluation.14 As the Supreme Court has noted, “[r]eliability is an amorphous, if not entirely subjective, concept.”15 Nonetheless, the courts have identified certain characteristics expected of reliable evidence.16 In a discussion about the EU hearsay exception, the Supreme Court stated that “circumstances that eliminate the possibility of fabrication, coaching, or confabulation . . .” could “provide sufficient assurance that the statement [made in those circumstances] is trustworthy . . . .”17 Also, the

Committee on Evidence Rules, Alexandria, VA, Apr. 19, 2016, at 284, www.uscourts.gov/file/ 19778/download. 12. See FED. R. EVID. 803 notes of advisory committee on proposed rules. 13. See id. 14. It should be noted that “reliable” has an established meaning in science and refers to the consistency of a measuring device or system. The word “reliable,” as used in the context of hearsay evidence, essentially means trustworthiness. Jamie Hale, Scientific Measures: Reliability and Validity, WORLD OF PSYCHOL. (Oct. 15, 2011), http://psychcentral.com/blog/ archives/2011/10/16/scientific-measures-reliability-and-validity/. See, e.g., Chambers v. Mis- sissippi, 410 U.S. 284, 298 (1973) (“The hearsay rule . . . is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact. Out-of- court statements are traditionally excluded because they lack the conventional indicia of reliability . . . .”) (emphasis added). There is a large difference between these two meanings of reliability. For example, “reliably wrong” as a concept does not make much sense under the legal definition used to assess hearsay evidence, although it would be perfectly appropriate under the scientific definition. 15. Crawford v. Washington, 541 U.S. 36, 63 (2004). 16. Id. (discussing several factors considered in state court opinions). 17. Idaho v. Wright, 497 U.S. 805, 820 (1990). LAU 6/6/2017 1:38 PM

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Advisory Committee’s notes about the EU hearsay exception have specifically discussed the criticism of the exception “on the ground that excitement impairs accuracy of observation.”18 Implicit is the idea that the accuracy of observation underpinning a particular type of hearsay evidence constitutes another measure of reliability. This article, therefore, reviews research on the susceptibility of PSI hearsay evidence to fabrication, coaching, or confabulation, as well as the probable accuracy of underlying observations. It must be noted, however, that a search of the literature yields no research that directly and empirically tests the assumptions underlying the PSI exception.19 The limited available empirical research concerning hearsay evidence tends to focus on such matters as the evaluation of the evidence by mock jurors.20 This review is based on research directed at questions outside of the hearsay realm which nonetheless speak to the PSI hearsay exception.

III. REAL-LIFE EXAMPLES OF PSI HEARSAY EVIDENCE

A complete analysis of the origins of PSI hearsay evidence is beyond the scope of this article. However, for the purposes of this article, it is helpful to consider some real-life examples of PSI hearsay evidence that have been admitted in the federal courts. To that end, because the PSI and EU hearsay exceptions are often invoked together to admit particular pieces of hearsay evidence,21 it is necessary to focus on those cases where the potential hearsay is admitted only as PSI but not as EU hearsay evidence in order to discuss the PSI hearsay exception in isolation. A search of precedential, federal appellate opinions between 2011 and 2015 yields four instances where PSI is either ruled admissible or mentioned as admissible under the PSI hearsay exception. The hearsay involved in United States v. Orm Hieng arose from the following incident:

18. FED. R. EVID. 803 notes of advisory committee on proposed rules. 19. See, e.g., John E.B. Myers et al., Hearsay Exceptions: Adjusting the Ratio of Intuition to Psychological Science, 65 LAW & CONTEMP. PROBS. 3, 5 (2002) (“[T]o our knowledge, psychological research has never directly tested the hypothesis that stress inhibits the ability to lie.”). 20. See, e.g., Gail S. Goodman et al., Hearsay Versus Children’s Testimony: Effects of Truthful and Deceptive Statements on Jurors’ Decisions, 30 LAW & HUM. BEHAV. 363, 364– 67 (2006) (analyzing whether mock jurors perceived the credibility of a child’s statement differently based on the format in which the statement was presented and whether they could discriminate between accurate and deceptive statements made by a child). 21. See, e.g., United States v. Boyce, 742 F.3d 792, 796 (7th Cir. 2014) (“The district court admitted [the hearsay] on the basis that it was a present sense impression under Federal Rule of Evidence 803(1) and an excited utterance under Federal Rule of Evidence 803(2).”). LAU 6/6/2017 1:38 PM

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[D]etectives simultaneously eradicated and tallied the plants in the vineyard. Detectives who participated in the effort testified that they eradicated the plants by going up and down each row, pulling or cutting marijuana plants, and keeping a mental tally of the number eradicated. When they finished pulling plants in a row, they gave the plants to a member of the team who loaded them on a truck, and gave their tally to [the recording detective]. None of the detectives who testified remembered the actual number of plants that they had eradicated, but they testified that they gave the accurate number to [the recording detective] and saw him record the number they reported.

[The recording detective] testified that he kept an accurate tally of the plants he counted and of the numbers reported to him by the other detectives. He testified that he added all the tallies manually, verified his addition, and entered the final tally in his report.22

The defendant challenged the use of the recording detective’s testimony to prove the number of marijuana plants that the detectives destroyed.23 The Ninth Circuit concluded that the testimony was correctly admitted as hearsay, in part because the count of the plants in each row provided by the detectives to the recording detective were present sense impressions.24

Here, the eradication of the marijuana plants constitutes an event that was perceived by the detectives who participated in it. These detectives described the event while it was taking place by reporting the number of plants they had just counted to [the recording detective] at the end of each row. Their reports . . . were present sense impressions.25

United States v. Polidore was concerned with two 911 calls where a caller reported numerous details about the defendant’s involvement in a drug deal, including the name of the defendant, the type of drugs sold by the defendant, the color and make of the defendant’s vehicle, and the location within the vehicle

22. United States v. Orm Hieng, 679 F.3d 1131, 1136 (9th Cir. 2012). 23. See id. at 1137. 24. Id. at 1141–42. 25. Id. at 1142. LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 181 where the defendant placed the drugs.26 The Fifth Circuit found that the calls were admissible as PSI hearsay evidence.27 United States v. Solorio involved hearsay statements made by agents of the Drug Enforcement Administration (“DEA”) during an undercover “buy bust” operation for drugs.28 The agents were “broadcast[ing] their observations [about the ongoing drug bust] over a radio, one from a [surveillance] van . . . and one from an airplane overhead,” to the other agents involved in the operation.29

[In the district court,] the government did not . . . introduce as witnesses the agents who had actually observed [the defendant]’s interactions . . . during the . . . “buy bust” operation. Instead, [two other arrest team members] testified about the surveillance observations of the nontestifying agents, which had been broadcast over the DEA radio system. [The defendant] objected to this testimony on hearsay grounds, but the trial court overruled his objections, holding the testimony admissible under the present sense impression exception to the hearsay rule.30

On appeal, the defendant conceded the evidence was properly admissible as PSI hearsay evidence, but nonetheless argued that the admission of the evidence should have been barred by the Confrontation Clause.31 The Ninth Circuit ruled that the district court did not plainly err in admitting the evidence.32 United States v. Ibisevic was an appeal of a conviction for failure to declare currency when leaving the United States.33 The defendant and his mother were leaving for Bosnia and were stopped by officers of Customs and Border Protection (“CBP”), who questioned them about the amount of money they were taking out of the country.34 After the defendant signed a form with a dollar amount that was below the $10,000 limit for currency declaration, the officers

26. Polidore, 690 F.3d at 709–10. It should be noted that the district court found that the calls were admissible because they were not used as hearsay, and alternatively, they were admissible under the EU hearsay exception. Id. at 720. The case is nonetheless included in this review because: (1) the government, on appeal, did not argue the EU hearsay exception, but instead urged that the evidence was admissible, even if used as hearsay, under the PSI hearsay exception; and (2) the Fifth Circuit admitted the evidence as PSI and did not simply affirm the admissibility of the evidence along the reasons provided by the district court. See id. 27. Id. at 720 (citation omitted). 28. See United States v. Solorio, 669 F.3d 943, 945–46 (9th Cir. 2012). 29. Id. at 947. 30. Id. at 949–50. 31. Id. at 952 & n.11. 32. Id. at 954. 33. United States v. Ibisevic, 675 F.3d 342, 344 (4th Cir. 2012). 34. Id. at 345. LAU 6/6/2017 1:38 PM

182 GONZAGA LAW REVIEW Vol. 52:2 discovered from a search that the defendant and his mother were carrying a sum that far exceeded the limit.35 At trial, “[t]he parties agreed as to his conduct—that he attempted to board an international flight with over $40,000 without reporting that fact.”36 The sole question in the case was whether the defendant “knowingly or intentionally evaded the reporting requirements and made a false statement.”37 The defendant attempted to introduce the following evidence:

On cross-examination, defense counsel attempted to question [defendant’s mother, who did not speak English] about what [the defendant] said to her after he signed the CBP form. As she started to explain, the district court sua sponte halted [her] testimony, characterized the answer she was about to give as hearsay, and called the lawyers to the bench.

During the bench conference, defense counsel proffered [the defendant’s mother] would testify that when customs officials asked the [defendant and his mother] to step aside, [the defendant] told his mother in Bosnian, “[t]hey are asking me how much the checked luggage cost if it’s lost.”38

This evidence was crucial to the defense:

[The mother’s excluded testimony] was the sole evidence that directly corroborated [the defendant’s] own testimony that he believed the customs agents were asking about the insurance value of his checked luggage (not the amount of currency in his carry-on bags) and thus had no knowledge of the currency reporting requirements, and so did not intend to violate them.39

The Fourth Circuit concluded that the trial court erred in excluding the mother’s testimony, that the evidence was not used as hearsay evidence, and if it were, it would have been admissible under the PSI hearsay exception.40 The cases cited above are used in this article as examples of PSI hearsay evidence in court; they are not intended to represent a comprehensive or thorough survey of federal cases. Nonetheless, it may be useful for future studies of PSI hearsay evidence to make some brief comments about these four cases. First, it

35. Id. at 346. 36. Id. at 350. 37. See id. 38. Id. at 347. 39. Id. at 350. 40. Id. at 349. LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 183 appears that PSI hearsay evidence which does not overlap with EU hearsay evidence arises from quite diverse circumstances. The only commonality of the PSI in all four cases is that they arose from interactions with or amongst law enforcement agents.41 Second, the four cases suggest that communications between agents in the course of law enforcement operations, as in Orm Hieng and Solorio, may be an important category of such PSI hearsay evidence.42 This may make sense in that law enforcement agents may be more likely to make calm and dispassionate statements about events or conditions compared to declarants who are personally involved in those events or conditions.43

IV. SUSCEPTIBILITY OF PSI HEARSAY EVIDENCE TO FABRICATION, COACHING, AND CONFABULATION

Fabrication, coaching, and confabulation are all potential sources of falsity, but they are separate phenomena. Fabrication and coaching involve intentional deception; that is, a declarant making a fabricated or coached statement intends the statement to be false. Confabulation, in contrast, is a false memory. 44 Confabulators sincerely believe in the veracity of their memories despite their falsity.45 The susceptibility of PSI hearsay evidence to such intentional and unintentional deception is separately discussed in the following sections.

41. See United States v. Ibisevic, 675 F.3d 342, 346 (4th Cir. 2012) (Immigration and Customs Enforcement); United States v. Solorio, 669 F.3d 943, 947 (9th Cir. 2012) (under- cover DEA agents); United States v. Polidore, 690 F.3d 705, 708–09 (5th Cir. 2012) (911 operator and police); United States v. Orm Hieng, 679 F.3d 1131, 1136 (9th Cir. 2012) (Fresno County Sheriff’s Department detectives). 42. See United States v. Solorio, 669 F.3d 943, 947 (9th Cir. 2012) (statements between undercover DEA agents); United States v. Orm Hieng, 679 F.3d 1131, 1136 (9th Cir. 2012) (statements between Fresno County Sheriff Department detectives when tallying marijuana plants). 43. For example, reports of domestic abuse by victims appears to be a significant category of the PSI hearsay evidence that does overlap with EU hearsay evidence. See Melissa Hamilton, The Reliability of Assault Victims’ Immediate Accounts: Evidence from Trauma Studies, 26 STAN. L. & POL’Y REV. 269, 299 (2015) (agreeing PSI and EU hearsay evidence are frequently used in domestic violence situations). It is well understandable that such declarants would not be dispassionate in describing or explaining how they were abused and that, as a result, their contemporaneous statements would qualify as hearsay evidence under both the PSI and EU hearsay exceptions. 44. Michael D. Kopelman, Varieties of Confabulation and Delusion, 15 COGNITIVE NEUROPSYCHIATRY 14, 25 (2010); Louis Nahum et al., Forms of Confabulation: Dissociations and Associations, 50 NEUROPSYCHOLOGIA 2524, 2525 (2012); Jerrod Brown et al., Confab- ulation: Connections Between Brain Damage, Memory, and Testimony, 3 J.L. ENFORCEMENT 1, 1–2 (2013). 45. Brown et al., supra note 44, at 2. LAU 6/6/2017 1:38 PM

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It should be noted that this article assumes that courts can resolve the gatekeeping “preliminary questions of fact” to determine whether a proffered piece of evidence qualifies as PSI hearsay.46 To that end, the discussion of susceptibility to falsity focuses only on the potential falsity within PSI hearsay statements and not whether courts correctly decide the gatekeeping question.47

A. Fabrication and Coaching

No empirical research appears to have directly addressed the susceptibility of PSI hearsay evidence to deliberate lies. However, research has examined lies prompted by questions, which this article reviews to the extent applicable. Walczyk et al. have proposed the Activation-Decision-Construction Model to explain deceptive responses to questions:

The Activation-Decision-Construction Model describes answering questions deceptively . . . . The model analyzes the act into three components. First, a question heard or read activates the truth from long- term memory, usually automatically. Second, based on the activated truth and social context, a decision to lie may be made, usually to advance liars’ interests. Truthful answering will then be actively inhibited, especially for well-practiced truths that can proactively interfere with lying . . . . Third, a context-appropriate lie is constructed that must be coherent and plausible. When possible, memories of the truth are altered slightly for the sake of lie plausibility and to minimize the cognitive load of lie construction. Finally, a lie is shared.48

The intentional formation of a deceptive PSI in this article is similarly analyzed as a three stage process. First, there must be an opportunity to lie. Second, the declarant must decide to lie. Third, the declarant must construct a deception of a quality sufficient for the falsified PSI to be moved into evidence. This section separately addresses the feasibility of each of these three steps.

46. See FED. R. EVID. 803 notes of advisory committee on proposed rules. 47. Examples of statements that take the form of PSI hearsay but actually do not meet the necessary requirement of including a statement about a nonexistent “event or condition” or one about an actual “event or condition” but not based on the declarant’s perception. See FED. R. EVID. 803 & notes of advisory committee on proposed rules. 48. Jeffrey J. Walczyk et al., Advancing Lie Detection by Inducing Cognitive Load on Liars: A Review of Relevant Theories and Techniques Guided by Lessons from Polygraph- Based Approaches, 4 FRONTIERS PSYCHOL., at 4 (2013). LAU 6/6/2017 1:38 PM

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1. Opportunity to Falsify a PSI

For a falsified piece of PSI hearsay evidence to exist, there must first be an available opportunity. The PSI hearsay exception defines a PSI as “[a] statement describing or explaining an event or condition . . . .”49 A PSI cannot be made in a vacuum; there must be some appropriate “event or condition” that the declarant can use to falsify hearsay evidence. No research to date appears to have tested the situational factors necessary for a declarant to successfully falsify PSI hearsay evidence. However, it is possible to infer a number of necessary conditions. To be used as hearsay evidence, that is, to be “offer[ed] in evidence to prove the truth of the matter asserted,” a PSI must have content.50 Many utterances, such as “Ouch!” are not hearsay evidence because they assert little to no content. Essentially, a PSI used as hearsay evidence must have descriptive value and be an act of communication from a declarant to a witness, even if the witness may not be known or may not be in proximity to the declarant.51 The need for the declarant to communicate to a witness severely restricts the range of possible lies. The declarant cannot blatantly lie to a witness who also is present at the event or condition of the PSI or who is in a position to immediately investigate the declarant’s claims, as the lie could be soon discovered.52 And even if the witness is not present to perceive the event or condition, the declarant cannot lie in a way that is entirely removed from what the witness knows or could come to know.53 Were the witness or law enforcement to discover that the PSI did not comport with what was found on site, they would likely disregard the PSI as a false alarm.54 In the case of Polidore, if the police arrived after receiving the 911 call and, instead of a drug dealer matching the details provided in the call, found a string quartet playing music without drugs in sight, there would be no occasion for the subject PSI to even have arrived in court.55 Likewise, in Orm Hieng, if the recording detective did not believe the numbers told to him by the two agents

49. FED. R. EVID. 803(1). 50. Id. 801(c)(2). 51. An example of such a witness could be found in Polidore, where a 911 operator hears a PSI declarant describe an ongoing act of criminal activity far away from the declarant. United States v. Polidore, 690 F.3d 705, 708–09, 720 (5th Cir. 2012). 52. See MICHAEL J. SAKS & BARBARA A. SPELLMAN, THE PSYCHOLOGICAL FOUNDA- TIONS OF EVIDENCE LAW 194 (2016). 53. See id. 54. The situation is different when the witness is in league with the declarant, but the witness could always be cross-examined about his or her relationship with the declarant. See FED. R. EVID. 803 & notes of advisory committee on proposed rules. 55. United States v. Polidore, 690 F.3d 705, 708–09 (5th Cir. 2012). LAU 6/6/2017 1:38 PM

186 GONZAGA LAW REVIEW Vol. 52:2 counting the plants because, for example, the numbers reported by the two agents were divergent, he likely would not have recorded the numbers without further verification.56 Therefore, any lie that the declarant makes must at least have some factual basis and be plausible to the witness. Finally, even if an event or condition permits the generation and construction of plausible lies, there still may not be lies that the PSI declarant could inject into evidence that would result in a litigation benefit to him. Within the cited cases, Ibisevic appears to be the only case where a lie in the PSI statement could have been helpful to the declarant.57 In Orm Hieng, for example, the number of plants counted by the detectives was important for determining the minimum sentence of the defendant.58 The detectives could obtain a longer minimum sentence for the defendant by over counting the number of plants they found; it is difficult to see how they personally stood to profit from an increase in the defendant’s prison term. It is therefore possible to infer three situational factors for successful falsification of PSI hearsay evidence: (1) the declarant knows that there is a witness to the PSI who at the same time could not directly refute the declarant’s description of the event or condition; (2) the available physical evidence of the event or condition allows for a plausible lie to be incorporated into the PSI; and (3) the range of plausible lies permitted by the event or condition must be capacious enough to accommodate a lie that could benefit the declarant. The frequency of these factors in situations where PSI hearsay evidence arises might be estimated by reviewing cases deciding admissibility of hearsay under the exceptions. However, neither judicial opinions nor transcripts would likely provide sufficient details to permit assessment, for example, of the capacity of witnesses to refute the PSI or the range of plausible lies that the declarant could have employed. Accordingly, it may be possible to infer the existence of some situational barriers against the injection of lies about a particular event or condition into PSI hearsay evidence. However, it may not be feasible to determine the degree of protection the barriers provide against the introduction of falsified hearsay into evidence.

56. See United States v. Orm Hieng, 679 F.3d 1131, 1136, 1141 (9th Cir. 2012). 57. See United States v. Ibisevic, 675 F.3d 342, 344, 349 (4th Cir. 2012) (hearsay admittance from mother would have been beneficial to Defendant); United States v. Solorio, 669 F.3d 943, 945–46 (9th Cir. 2012) (hearsay from DEA agents); United States v. Polidore, 690 F.3d 705, 710 (5th Cir. 2012) (hearsay from 911 dispatch and police); United States v. Orm Hieng, 679 F.3d 1131, 1135 (9th Cir. 2012) (hearsay from police officers counting contraband). 58. See Orm Hieng, 679 F.3d at 1135. LAU 6/6/2017 1:38 PM

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2. Deciding to Falsify a PSI

The PSI hearsay exception requires that a PSI be “made while or immediately after the declarant perceived [the event or condition].”59 Falsifying a PSI requires the declarant to be capable of quickly deciding to make use of the event or condition to advance an agenda. Although there has been much psychological and neuroscientific research conducted since the enactment of the PSI hearsay exception, there are still many unresolved empirical questions regarding which factors might influence a decision to lie.60 Scholars estimating the overall prevalence of lying have concluded that most people tell few lies, and those lies which are told are generally not serious, are made in the context of everyday social interactions, and involve little planning and little regret.61 In fact, there is a portion of people who are instinctively and emotionally averse to lying.62 Most lies are told by a minority of prolific liars, and scholars have found a correlation between lying frequency and psychopathic tendencies.63 However, a person presented with an opportunity to lie has a default response and the existence of a motivation to lie is a key determinant as to what that response may be.64 Research paradigms have investigated this through experiments where participants are instructed to lie but not given any reward for doing so65 and experiments where participants are incentivized to lie by the

59. FED. R. EVID. 803(1). 60. Bella M. DePaulo et al., Lying in Everyday Life, 70 J. PERSONALITY & SOC. PSYCHOL. 979, 979 (1996). 61. Id. at 991–92; see Kim B. Serota et al., The Prevalence of Lying in America: Three Studies of Self-Reported Lies, 36 HUM. COMM. RES. 2, 19, 22 (2010). 62. A study conducted in Spain found that a significant portion of people, 40%, were lie-averse. Raúl López-Pérez & Eli Spiegelman, Why do People Tell the Truth? Experimental Evidence for Pure Lie Aversion, 16 EXPERIMENTAL ECON. 233, 245–46 (2012). Although the 40% figure cannot be directly applied to the U.S. population, given the divergence between Spanish and U.S. culture, research conducted in the U.S. has found that a small number of prolific liars account for a large proportion of all lies. Serota et al., supra note 61, at 12. 63. Serota et al., supra note 61, at 21–22; Rony Halevy et al., Being Honest About Dishonesty: Correlating Self-Reports and Actual Lying, 40 HUM. COMM. RES. 54, 69 (2014); Madeline E. Smith et al., Everyday Deception or A Few Prolific Liars? The Prevalence of Lies in Text Messaging, 41 COMPUTERS IN HUM. BEHAV. 220, 224 (2014). 64. Bruno Verschuere & Shaul Shalvi, The Truth Comes Naturally! Does It?, 33 J. LANGUAGE & SOC. PSYCHOL. 417, 420–21 (2014). 65. See, e.g., Evelyne Debey et al., Lying and Executive Control: An Experimental Investigation Using Ego Depletion and Goal Neglect, 140 ACTA PSYCHOLOGICA 133, 135–38 (2012) [hereinafter Debey et al., Lying and Executive Control]. LAU 6/6/2017 1:38 PM

188 GONZAGA LAW REVIEW Vol. 52:2 promise of rewards which are tied to the contents of their statements.66 Where there is no motivation to lie, humans may be predisposed to tell the truth.67 In contrast, when lying may be profitable, scholars have hypothesized that the default reaction is to lie.68 The suppression of the default response—to lie when there is no motivation to lie or to be honest when there is a motivation to lie—requires cognitive effort.69 During this deliberative process, the mind may weigh factors such as moral judgment and justification for lying.70 The process requires time and demands attentional focus.71 It is more impaired under situations of high cognitive load, for instance with conditions that promote attentional lapses or depletion of self-control,72 or under fatigue, including conditions of sleep deprivation or later times of day.73

66. See, e.g., Shaul Shalvi et al., Honesty Requires Time (and Lack of Justifications), 23 PSYCHOL. SCI. 1264, 1266 (2012). 67. Evelyne Debey et al., Lying Relies on the Truth, 132 COGNITION 324, 325 (2014); Bruno Verschuere et al., The Ease of Lying, 20 CONSCIOUSNESS & COGNITION 908, 908–09 (2011) [hereinafter Debey et al., Lying Relies on the Truth]; see Sean A. Spence et al., Behavioural and Functional Anatomical Correlates of Deception in Humans, 12 NEUROREPORT 2849, 2852 (2001); Evelyne Debey et al., From Junior to Senior Pinocchio: A Cross-Sectional Lifespan Investigation of Deception, 160 ACTA PSYCHOLOGICA 58, 65 (2015) [hereinafter Debey et al., From Junior to Senior Pinocchio]. 68. Verschuere & Shalvi, supra note 64, at 420–21; Kristina Suchotzki et al., Lying Takes Time: A Meta-Analysis on Reaction Time Measures of Deception, 4 PSYCHOL. BULL. 428, 443 (2017). 69. Debey et al., Lying Relies on the Truth, supra note 67, at 331; Shalvi et al., supra note 66, at 1268; Ahmed A. Karim et al., The Truth About Lying: Inhibition of the Anterior Prefrontal Cortex Improves Deceptive Behavior, 20 CEREBRAL CORTEX 205, 210 (2010); Debey et al., Lying and Executive Control, supra note 65, at 140; Shawn E. Christ et al., The Contributions of Prefrontal Cortex and Executive Control to Deception: Evidence from Activation Likelihood Estimate Meta-Analyses, 19 CEREBRAL CORTEX 1557, 1558 (2009). 70. Shalvi, et al., supra note 66, at 1266, 1268; Nobuhito Abe et al., The Neural Basis of Dishonest Decisions that Serve to Harm or Help the Target, 90 BRAIN & COGNITION 41, 41 (2014). 71. Jeffrey J. Walczyk et al., Cognitive Mechanisms Underlying Lying to Questions: Response Time as a Cue to Deception, 17 APPLIED COGNITIVE PSYCHOL. 755, 771 (2003) [hereinafter Walczyk et al., Cognitive Mechanisms]; Debey et al., Lying and Executive Control, supra note 65, at 138–40. But see Shalvi et al., supra note 66, at 1268. 72. Debey et al., Lying and Executive Control, supra note 65, at 138, 140; Francesca Gino et al., Unable to Resist Temptation: How Self-Control Depletion Promotes Unethical Behavior, 115 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 191, 199 (2011). 73. Christopher M. Barnes et al., Lack of Sleep and Unethical Conduct, 115 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 169, 177–78 (2011); Maryam Kouchaki & Isaac H. Smith, The Morning Morality Effect: The Influence of Time of Day on Unethical Behavior, 25 PSYCHOL. SCI. 95, 95, 100 (2014). LAU 6/6/2017 1:38 PM

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Other factors, beyond the costs and benefits of lying in a particular situation, also play a role. Both moral judgment and the desire to maintain a favorable self- image may motivate people to avoid lying.74 Lying appears to be more difficult when conducted in personal settings; for example, the decision to lie has been observed to take twice as much time when testing is conducted person-to-person instead of by computer.75 Likewise, the level of lying in experiments is higher in a laboratory setting than when receiving a phone call at home.76 The relationship between the liar and audience also plays a role. People may be less likely to lie to those with whom they are close, although research also suggests higher levels of lying to mothers and to non-spouse romantic partners.77 Training may play a role in influencing both the default response and any subsequent deliberation. For example, repetition may recondition a default response of truth-telling to one of lying.78 Likewise, the decision to lie may be made easier and faster with practice.79 On the other hand, habitual truth-telling might make lying more difficult.80 All of this research supports some of the assumptions in the notes to Rule 803 about the decision to lie in PSI scenarios.81 The logic flow essentially runs as follows: (1) the default behavior is a tendency to truth; (2) misrepresentation is “deliberate or conscious;” (3) “deliberate or conscious misrepresentation” is difficult or unlikely under the “substantial contemporaneity of event and statement;” and (4) PSI hearsay statements therefore reflect default, truthful behavior.

74. See Karim et al., supra note 69, at 205, 210; Urs Fischbacher & Franziska Föllmi- Heusi, Lies in Disguise: An Experimental Study on Cheating, 11 J. EUROPEAN ECON. ASS’N 525, 526 (2013). 75. Jeffrey J. Walczyk et al., Lying Person-to-Person About Life Events: A Cognitive Framework for Lie Detection, 58 PERSONNEL PSYCHOL. 141, 159–60 (2005) [hereinafter Walczyk et al., Lying Person-to-Person]. 76. Johannes Abeler et al., Representative Evidence on Lying Costs, 113 J. PUB. ECON. 96, 103 (2014). 77. Madeline E. Smith et al., supra note 63, 225; Bella M. DePaulo & Deborah A. Kashy, Everyday Lies in Close and Casual Relationships, 74 J. PERSONALITY & SOC. PSYCHOL. 63, 75, 77 (1998). 78. Verschuere et al., supra note 67, at 908–10. 79. B. Van Bockstaele et al., Learning to Lie: Effects of Practice on the Cognitive Cost of Lying, 3 FRONTIERS IN PSYCHOL. 1, 5 (2012); Xiaoqing Hu et al., A Repeated Lie Becomes a Truth? The Effect of Intentional Control and Training on Deception, 3 FRONTIERS IN PSYCHOL. 1, 2, 5 (2012). 80. Verschuere et al., supra note 67, at 909–10; see Jeffrey J. Walczyk et al., A Social- Cognitive Framework for Understanding Serious Lies: Activation-Decision-Construction- Action Theory, 34 NEW IDEAS IN PSYCHOL. 22, 32 (2014) [hereinafter Walczyk et al., A Social- Cognitive Framework]. 81. See FED. R. EVID. 803 notes of advisory committee on proposed rule. LAU 6/6/2017 1:38 PM

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The intuition of the existence of a default response appears to be supported by the literature. Similarly, research supports the belief that “deliberat[ion] or conscious [decision]”—or cognitive effort, in modern scientific language—is necessary to overcome this default behavior and that the exertion of cognitive effort is more difficult under time pressure. However, the assumption that the default response obtained through a PSI is more likely to be truthful is less supported. Research suggests that the default response—whether to tell the truth or to lie—may hinge on the existence of a motivation to lie. When the declarant has no motivation to lie, the resulting PSI likely reflects a default reaction of truth-telling. Likewise, when the advantage of lying is latent or not immediately obvious, the PSI also may stem from a default behavior of truth-telling. But where there is a benefit to lie readily perceptible to the declarant, he or she may be primed to lie. In this case, overcoming the default response to lie, so as to tell the truth, might actually require “deliberat[ion] or conscious [decision].” Accordingly, the question of whether a particular piece of PSI hearsay evidence may contain lies is context-sensitive and depends on both the circumstances during which the statement was made and the motivations the declarant may have had at the time. To the extent that the hearsay exceptions are formulated based on generalities, a proper evaluation of the exceptions would require balancing those statements made by neutral declarants, or made in such circumstances where the benefit [of] lying is difficult to detect against those statements made in circumstances where lying is obviously advantageous. No research appears to have directly addressed how frequently a motivation to lie exists within the circumstances under which the typical PSI hearsay is made. And it is possible that no experiment could feasibly arrive at an answer because of the highly personal nature of the motivation to lie in PSI scenarios. Even if experiments can be conducted to understand whether a set of declarants in a particular scenario would have a motivation to lie,82 they would not yield useful conclusions about whether other declarants in other scenarios would also have motivations to lie. In Solorio, for example, the Ninth Circuit noted that “an objective observer could reasonably believe that the undercover operation posed a safety threat to [the informant], and to the DEA agents on the scene where they found out.”83 The court stated that, “[b]y reporting their contemporaneous observations over the radio, the non-testifying agents enabled the testifying agents to monitor the operation, to stay ready to protect [the informant] and the on-the-scene agents

82. All indications from Solorio are that the subject PSI were truthful and that the undercover operation was skillfully and professionally executed by the DEA agents involved. 83. United States v. Solorio, 669 F.3d 943, 953 (9th Cir. 2012). LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 191 should it prove necessary.”84 In other words, the DEA agents making the subject PSI could have endangered their colleagues had they injected lies into the PSI. But there is no reason to think that employees of the federal government would generally wish to bring harm to their colleagues and thereby undermine the mission of their agencies.85 Any motivation to lie that may exist for the declarants in Solorio, such as animus or jealousy, would be based entirely on the specific circumstances and persons involved in the undercover operation. To that end, it is notable that some courts have intuited the strong role the motivation to lie may play and have therefore weighed a lack of motivation to falsify in determining admissibility of PSI hearsay,86 thus providing a potential safeguard against falsity in PSI hearsay.

3. Injecting Lies into a PSI

Even if one decides to lie, constructing that lie is a distinct mental step requiring additional time and cognitive resources.87 In lying, one must also perceive the truth of the situation and then mentally suppress the response to tell the truth in order to consciously lie.88 And for a lie to be submitted into evidence, it must be of a sufficient quality. The duty of candor to the tribunal forbids attorneys from offering evidence they know to be false.89 In sum, it is insufficient that the declarant only has the opportunity to lie and makes the decision to do so; he or she must, within the time frame permitted by the PSI hearsay exception, contrive a falsehood of sufficient quality that attorneys cannot recognize the falsity after investigation.90

84. Id. 85. Id. at 947–46. 86. See Edward J. Imwinkelried, The Need to Resurrect the Present Sense Impression Hearsay Exception: A Relapse in Hearsay Policy, 52 HOW. L.J. 319, 339 (2009) (providing citations to a number of cases where courts have looked to the motivation to lie). 87. Walczyk et al., Lying Person-to-Person, supra note 75, at 145; see Emma J. Williams et al., Telling Lies: The Irrepressible Truth?, 8 PLOS ONE 1, 12 (2013). 88. Walczyk et al., Cognitive Mechanisms, supra note 71, at 765; Debey et al., Lying Relies on the Truth, supra note 67, at 331; Christ et al., supra note 69, at 1558; Debey et al., From Junior to Senior Pinocchio, supra note 67, at 65–66. 89. See, e.g., MODEL RULES OF PROF’L CONDUCT r. 3.3 (AM. BAR ASS’N, Discussion Draft 1983). At the least, attorneys will avoid submitting such evidence when they believe the factfinder may catch the lies within. 90. It has been proposed that a lie in hearsay evidence ought to be capable of “withstand[ing] effective subsequent rebuttal by the other facts in the case.” Edward J. Imwinkelried, The Case for the Present Sense Impression Hearsay Exception: The Relevance of the Original Version of Federal Rule of Evidence 803 to Judge Posner’s Criticism of the Exception, 54 BRANDEIS L.J. 455, 477 (2016). This is more stringent than the requirement for quality proposed in this article and would be more difficult for a lying declarant to meet. LAU 6/6/2017 1:38 PM

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The difficulty of formulating a lie increases when there is a greater need to think through a lie; that is, a more complex lie or a more complex situation requires greater cognitive effort.91 For example, research finds that lying is more cognitively taxing and takes longer when multiple lies are plausible or when the lies are made in response to open-ended questions rather than yes/no questions.92 When a lie must fit within a narrative to advance an agenda, the liar needs to expend cognitive effort to keep the story straight.93 Maintaining a plausible and consistent narrative should be more difficult under situations that increase cognitive load, such as when a narrative must be told in reverse chronological order.94 To that end, lying by omitting information should be cognitively easier because, unlike more active forms of lying, it does not require assessing the truth, inhibiting an urge to tell the truth, and then creating a lie that counters the truth.95 Research suggests that lying by omission may be the most prevalent form of deception.96 Lying in response to an expected opportunity may also be easier because retrieval of rehearsed lies from memory takes less cognitive effort than the generation of spontaneous lies.97 But even when a lie has been prepared in advance, lying may still be more difficult than telling the truth because truthful knowledge may be encoded in a larger portion of the brain and is more readily retrieved.98

91. Walczyk et al., A Social-Cognitive Framework, supra note 80, at 33. 92. See Williams et al., supra note 87, at 12, 13; Walczyk et al., Lying Person-to- Person, supra note 75, at 160. 93. G. Ganis et al., Neural Correlates of Different Types of Deception: An fMRI Investigation, 13 CEREBRAL CORTEX 830, 831 (2003). 94. See Aldert Vrij et al., Increasing Cognitive Load to Facilitate Lie Detection: The Benefit of Recalling an Event in Reverse Order, 32 LAW HUM. BEHAV. 253, 254–55, 259–60, 262 (2008) [hereinafter Vrij et al., Increasing Cognitive Load] (increasing cognitive load by requesting a narrative in reverse order increased cues and thus detection of deception by police officers). 95. Timothy R. Levine et al., Self-Construal, Self and Other Benefit, and the Generation of Deceptive Messages, 31 J. INTERCULTURAL COMM. RES. 29, 34 (2002). 96. Id. at 34, 43. 97. See Lara Warmelink et al., The Effect of Question Expectedness and Experience on Lying about Intentions, 141 ACTA PSYCHOLOGICA 178, 182 (2012); Aldert Vrij et al., Saccadic Eye Movement Rate as a Cue to Deceit, 4 J. APPLIED RES. MEMORY & COGNITION 15, 18 (2015) [hereinafter Vrij et al., Saccadic Eye Movement Rate]; Ganis et al., supra note 93, at 835. 98. Ganis et al., supra note 93, at 835; see also Vrij et al., Saccadic Eye Movement Rate, supra note 97, at 15, 17–18 (saccadic eye movements, correlated with the search of long term memory, found to be higher in the telling of planned lies than in truth-telling, although the difference was not considered significant). LAU 6/6/2017 1:38 PM

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Furthermore, a successful liar must appear honest and credible, which motivates them to regulate their own behavior as well as to monitor the behavior of surrounding people.99 This behavioral monitoring may constitute an additional cognitive burden.100 In addition, the ability to construct a lie is, like the ability to decide to lie, also dependent on motivation to lie. Research suggests that the ability to construct lies is dependent on the motivation to lie because the motivation determines the amount of cognitive resources invested in lying.101 Accordingly, motivated liars are faster than unmotivated liars in constructing lies. The rationale underlying the PSI hearsay exception that misrepresentation is “deliberate or conscious” therefore finds some support in research which demonstrates that the construction and convincing delivery of lies requires cognitive resources and effort and the identification of motivation. The research findings further suggest that the construction of lies may be more difficult under the conditions in which the typical PSI is made.102 At the outset, the existence of PSI hearsay is itself a guarantee that the declarant did not resort to the easiest lie: silence. According to research, lying by omission may be less cognitively demanding than lying by fabrication because the former does not require generating additional information. And unless a declarant is prompted or required to describe an event or situation, he or she does not actually have to provide a PSI. For example, if the declarant in Polidore wished to conceal the drug deal, he could simply have elected not to call law enforcement and ignore the entire incident. The research literature does not speak to how frequently liars who intend to lie about an event or situation do so by silence. But given the prevalence of omission among the various means of deception,103 there may actually be no PSI at all in a significant portion of the times when would-be declarants encounter an appropriate event or condition for lying. Even if the declarant chooses or is compelled to generate some spoken lie, such lies are easier when they involve responses to closed-ended yes/no questions or when the possible lies are limited. But it is unlikely that PSI hearsay

99. Vrij et al., Increasing Cognitive Load, supra note 94, at 259; Kamila E. Sip et al., When Pinocchio’s Nose Does Not Grow: Belief Regarding Lie-Detectability Modulates Production of Deception, 7 FRONTIERS IN HUM. NEUROSCIENCE 1, 9 (2013); Bella M. DePaulo et al., Cues to Deception, 129 PSYCHOL. BULL. 74, 103 (2003). 100. Vrij et al., Increasing Cognitive Load, supra note 94, at 259; see Sip et al., supra note 99, at 9. 101. Suchotzki et al., supra note 68, at 443. 102. A literature review by scholars in 2002, which does not have the benefit of subsequent research cited within this article, has come to substantially similar conclusions. Myers et al., supra note 19, at 6–8. 103. See Levine et al., supra note 95, at 40. LAU 6/6/2017 1:38 PM

194 GONZAGA LAW REVIEW Vol. 52:2 evidence is made in many circumstances that constrict the universe of potential lies in such a way. None of the four appellate cases cited involve close-ended lies;all involved open-ended statements. Thus, to falsify a PSI that would be introduced into court, a declarant must make a lie of greater sophistication. He or she must process the facts as he or she observes them and adjust the truth, all the while keeping the falsification plausible within a coherent narrative. And to the extent that liars perform poorly in situations where their prepared lies are narrated in reverse,104 it is probable that liars who are forced to adjust to events as they unfold would perform poorly as well, in that both situations would demand extra cognitive resources to keep the narrative straight. The need to convince and avoid detection further increases the cognitive burden. Lies may be made easier with preparation and rehearsal. But PSI hearsay evidence seems unlikely to involve expected situations, rendering it difficult to employ rehearsed lies. And if a PSI declarant predicted the event or condition he or she intended to lie about, it would still be necessary to tailor the prepared statement to fit the events as they actually unfold. Though the possible increased difficulty of lying under the circumstances of the typical PSI does not necessarily mean a reduction in the incidence of lying, which is the assumption upon which the hearsay exceptions rely, humans are generally cognitive misers. That is, they tend toward the simplest cognitive mechanisms.105 It is quite plausible that, under cognitively demanding conditions, potential declarants will take the path of least resistance and either not lie or stay silent. The research finding that the ability to lie is positively affected by the strength of the motivation to lie does add a complication to the puzzle. If the typical PSI scenario presents strong motivation to lie, then PSI hearsay evidence, as a whole, may contain quality lies and therefore be less reliable. And it may not be possible to experimentally determine the strength of the motivation to lie in the typical PSI scenario. The section above already explained why it is difficult to study the presence of the motivation to lie. The strength of the motivation to lie, which is even more particular to a given set of circumstances and specific to the particular declarant, would be even more challenging to test with experiments. However, as stated above, some courts have looked to a lack of motivation to falsify in determining admissibility of PSI hearsay. It is apparent then that there is skepticism towards self-serving PSI hearsay statements, although it is

104. Vrij et al., Increasing Cognitive Load, supra note 94, at 259–60, 262. 105. See, e.g., Maggie E. Toplak, Richard F. West, & Keith E. Stanovich, Assessing Miserly Information Processing: An Expansion of the Cognitive Reflection Test, 20 THINKING & REASONING 147, 148 (2014). LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 195 not clear how many courts or jurors harbor such views. Still, that factfinders may mentally discount the credibility of PSI hearsay evidence made in cases where there is an incentive to lie may help combat, in an indirect way, the possibility that the ability to lie enhanced by a strong motivation to lie can overcome the barriers against lying in PSI scenarios. It may be useful to conclude this section with an analysis of the facts of Ibisevic, where, compared to the other four cases cited in this article, the declarant most clearly stands to gain by injecting lies into the subject PSI.106 Even though the declarant had a clear motivation to lie, the task of constructing a lie is not trivial. He must first realize and remember that there is an intent element to the statute criminalizing the smuggling of cash.107 Second, he must realize that his mother’s testimony about his mistranslation of the CBP agent’s question would subsequently be useful to establish a lack of intent.108 Third, he must construct a plausible mistranslation. This is a task that would probably be demanding even for a trained lawyer familiar with the relevant currency statutes and evidence law, not to mention for someone who, according to the available evidence, had extremely limited abilities in speaking and understanding English.109 If the declarant indeed had the presence of mind and the legal education to execute such a clever lie, he would have realized that the CBP would not have collected duty on his money and that he could have saved himself from criminal prosecution and potential forfeiture by simply declaring it.110

4. Judge Posner’s Critique of the PSI Hearsay Exception

The research findings summarized above do not yield firm and unequivocal conclusions about the resistance of PSI hearsay evidence to the negative effects of fabrication and coaching. It would not be correct to assume that PSI hearsay evidence is incapable of being tainted by lies. Still, Judge Posner’s assertion that the PSI exception is “not even good folk psychology” is also problematic.111 To that end, it is worthwhile to consider Judge Posner’s concerns about the exceptions, which are primarily focused on the ease of lying, in view of the scientific literature.112

106. United States v. Ibisevic, 675 F.3d 342, 344–45 (4th Cir. 2012). 107. See id. at 345. 108. Id. at 347, 350. 109. Id. at 348. 110. Currency / Monetary Instruments - Duty on Money, Checks, etc., U.S. CUSTOMS & BORDER PROTECTION, https://help.cbp.gov/app/answers/detail/a_id/447/ (last visited March 13, 2017). 111. United States v. Boyce, 742 F.3d 792, 801 (7th Cir. 2014) (Posner, J., concurring). 112. Id. at 800. LAU 6/6/2017 1:38 PM

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Judge Posner wrote that “real immediacy is not a guarantor of truthfulness” because “[i]t’s not true that people can’t make up a lie in a short period of time.”113 In support of his statement, he relies on a law article by Douglas McFarland, which in turn cites a number of social science studies, to support the proposition that “old and new studies agree that less than one second is required to fabricate a lie.”114 Real immediacy indeed does not guarantee truthfulness, but the statement that “less than one second is required to fabricate a lie” is more problematic. It is one thing to analyze the PSI hearsay exception using the general findings and observed trends from social science studies, which are actually quite consistent.115 However, the actual values from the studies about lying should not be taken out of the context of how those measurements were taken without an analysis of whether those results can meaningfully apply to real-world PSI statements.116 It is instructive to consider the experimental paradigm of Greene et al., one of the studies chiefly relied upon by McFarland:

[A]fter the participants were provided the list of questions, the experimenter told the participants that the purpose of the study was to determine the effects of reporting various self-disclosures on th [sic] subsequent conversation. The experimenter asked the participants if they could “help us out” by being confederates in the study and that the experimenter wanted them to report a false favorite vacation spot to their partners. All participants who were asked agreed to be confederates in the study.

The experimenter then presented a list of ten vacation areas from which to select a false “favorite vacation spot.” The list . . . included: the Colorado mountains, Hawaii, Los Angeles, Orlando, New Orleans, New York City, San Diego, San Francisco, Puerto Rico, and the Virgin Islands. The topic “vacation area” was selected as a deception topic because it was easy to construct “spontaneous” follow-up questions

113. Id. 114. Id. at 801 (quoting Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004) (quoting Douglas D. McFarland, Present Sense Impressions Cannot Live in the Past, 28 FLA. ST. U. L. REV. 907, 916 (2001))). Judge Posner also cites other law articles, but it does not appear those law articles provide support for the contention that “less than one second is required to fabricate a lie.” This article therefore focuses its attention on McFarland. 115. For example, Greene et al., cited by McFarland, concluded that it is more difficult to spontaneously create a lie than to tell the truth. Douglas D. McFarland, Present Sense Impressions Cannot Live in the Past, 28 FLA. ST. U. L. REV. 907, 916–17 & n.50 (2001). 116. There is no explanation provided by either McFarland or Judge Posner’s opinion about the external validity of the cited social science studies. See generally McFarland, supra note 115, at 916–17; Boyce, 742 F.3d at 800–01 (Posner, J., concurring). LAU 6/6/2017 1:38 PM

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about the topic that made the spontaneous lies cognitively difficult, yet still allowing the types of follow-up questions to seem plausible. A fabricated vacation area was selected for each person . . . on the basis of several tosses of a coin . . . .

Each participant was left in a waiting room for over 10 minutes with the list of questions, during which time the participant was led to believe the experimenter was giving instructions to the partner. The participant was then led down a corridor to the experimental room and introduced to the true confederate. The experimenter gave the list of questions to the true confederate and told her to start the questioning. The experimenter told the participant that she would return in one half hour, thanked the subject for coming and left the room. The true confederate asked questions on the list and, immediately after receiving the answer to the prepared critical question (“What is your most favorite vacation spot?”), the true confederate looked up at the participant and said, “Oh, really? What did you do there?” After receiving an answer to this question, the confederate returned to the list of questions. After the last question on the list was asked, the confederate looked up again and asked, “Listen, you said you went to ______. What were the people there like?” After this last question was answered, the confederate announced, “That’s all the questions I have,” and handed the list of questions over to the participant. At this time the experimenter entered the room and announced that the experiment was over, led the participant to a waiting room for debriefing and confirmed that the participants followed their respective instructions.117

The conclusion of McFarland and, by extension, Judge Posner that lies can be constructed in a matter of seconds are based on the response latencies measured by Greene et al. in response to the question, “what were the people [at the false favorite vacation spot] like?” which is 1.48 seconds for truth-tellers and 2.967 seconds for the liars.118 These experimental conditions of Greene et al. are not in any way comparable to that of the typical PSI situation. First, the situational barriers to lying in a PSI discussed in Section IV.A.1 are absent by design of the

117. John O. Greene et al., Planning and Control of Behavior During Deception, 11 HUM. COMM. RES. 335, 348–49 (1985). 118. McFarland, supra note 115, at 916–17. It should be noted that McFarland has confused the data of Greene et al. in his article. See Greene et al., supra note 117, at 351–53. The figure of 2.967 seconds for spontaneous lying should not be benchmarked against the figure of 1.6556 seconds for truth-telling; the figure of 1.6556 seconds is obtained in the measurement for a different question. The proper number to use is the figure of 1.48 seconds, and it is notable that telling the spontaneous lies takes a little more than twice as long as truth- telling. LAU 6/6/2017 1:38 PM

198 GONZAGA LAW REVIEW Vol. 52:2 experiment.119 The lying participants do not have any uncertainty about the presence of a witness to their lies; they are after all lying while in an ongoing dialogue with the true confederate.120 The participants are also assured of the fact that their lies cannot be put by the true confederate to immediate test.121 After all, the true confederate cannot immediately visit the false favorite vacation spot to verify what the people there were like. Second, as discussed in Section IV.A.2, actual PSI declarants must make the decision to lie.122 In the experiments of Greene et al., the decision to lie is already made for the participants ahead of time.123 Once they committed to lie about the favorite vacation spot, they have to continue lying about the favorite vacation spot.124 The experiments of Greene et al. do not measure how long it takes for declarants to make the decision to lie, much less whether declarants can and will make the decision to lie under the pressure inherent to the typical PSI scenario.125 Certainly, the participants in the Greene et al. experiments do not have or need to discover any personal motive to lie, which should add to the time needed to lie.126 Third, as discussed in Section IV.A.3, lies within PSI’s actually have to be of a certain quality for the lie to enter into evidence in court. The experiment of Greene et al. does not impose any requirement on the quality of the lies, and indeed, the lies that were obtained in the experiments are unlikely to be of a quality that would be useful as PSI hearsay evidence. Greene et al. observed that the lies were, on average, 18.3371 seconds long.127 Even with a generous assumption that these liars were able to speak at the average rate of speech of 150 words per minute,128 these lies are still less than 50 words long.129 Little content is communicated in these lies;130 the first two sentences of this paragraph alone contain more than 50 words. Furthermore, the liars in the experiment do not have to account for events that are presently unfolding as declarants of a PSI

119. Greene et al., supra note 117, at 348. 120. Id. at 349. 121. Id. at 348. 122. Debey et al., Lying and Executive Control, supra note 65, at 133. 123. Greene et al., supra note 117, at 348. 124. See id. at 348–49. 125. See id. at 348. 126. See id. 127. Greene et al., supra note 117, at 355. 128. Voice Qualities, NAT’L CTR. FOR VOICE & SPEECH, http://www.ncvs.org/ncvs /tutorials/voiceprod/tutorial/quality.html (last visited Mar. 15, 2017). 129. Greene et al., supra note 117, at 353–54. 130. Id. at 341–42. LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 199 must do.131 It is also impossible for the participants to be caught lying because “what the people there were like” is inherently subjective.132 It is much easier to for these participants to construct good lies for the experiment than for PSI declarants to construct good lies for their PSI. Accordingly, the numbers that McFarland cited in his article that were subsequently relied upon by Judge Posner are numbers that reflect the experimental paradigm, but may not reflect the realities of PSI scenarios. It is also instructive to consider the hypothetical posited by Judge Posner:

Suppose I run into an acquaintance on the street and he has a new dog with him—a little yappy thing—and he asks me, “Isn’t he beautiful”? I answer yes, though I’m a cat person and consider his dog hideous.133

One can imagine that most persons could and will successfully lie in such a situation. However, the hypothetical white lie about the dog’s appearance is in sharp contrast with the archetypical PSI hearsay that would be admitted in court. First, it is more likely that the person in Judge Posner’s hypothetical can quickly formulate a lie about the dog than the typical declarant can in injecting lies into a PSI. The lie about the dog concerns a response to a yes/no question. As discussed above, a quick reply to a yes/no question requires less cognitive effort than creating a narrative and can more readily lead to a lie when such motivation exists.134 Second, the lie about the dog is not necessarily spontaneous and unrehearsed. The situation involves a white lie, which one in a polite society is more or less trained and expected to make.135 There is clearly a socially correct answer to compliment a person or their pet, just as most people have an immediate, rehearsed response to the standard greeting of “how are you?”136 Indeed, researchers have distinguished serious lies and white lies and have explicitly expressed the need for different research paradigms for studying the two situations.137 It is difficult to see any similarity between lying in a chance

131. See id. at 348–49. 132. See id. at 347–49. 133. United States v. Boyce, 742 F.3d 792, 801 (7th Cir. 2014) (Posner, J., concurring). 134. Williams et. al, supra note 87, at 2. 135. See Abe et al., supra note 69, at 41–42. 136. Id. at 41–42. 137. See, e.g., DePaulo et al., supra note 99, at 993; Abe et al., supra note 70, at 41 (finding different neurocognitive mechanisms underlying helpful “white lies” and harmful lies). LAU 6/6/2017 1:38 PM

200 GONZAGA LAW REVIEW Vol. 52:2 encounter with an acquaintance in the street and lying about an ongoing drug deal, as in Polidore and Solorio.138 Also, the PSI hearsay that attorneys would seek to enter into evidence are for facts that build a case and often involve the existence, or lack thereof, of a risk to human life. Lies of this type could require more planning and, thus, more cognitive effort on the part of the liar; the sort of white lies that reflect social niceties require significantly less of a deliberation or conscious decision than a PSI. While further research is required on the capacity to lie in even the quickest, most cognitively taxing situations, the answer to the question of whether PSI hearsay evidence is susceptible to lies is more complex than Judge Posner’s critique suggests.

B. Confabulation

Confabulation139 is the emergence of memories of events, experiences, or details which never took place.140 Confabulators do not know that they are not being truthful.141 Thus, the section below discusses not the intentionality of lying

138. See generally United States v. Solorio, 669 F.3d 943 (9th Cir. 2012); United States v. Polidore, 690 F.3d 705 (5th Cir. 2012). 139. This article uses a narrow, technical understanding of confabulation that is based on psychological or neurological disorders as in Dresser. Dresser v. Colvin, No. 12-CV-253- CJP, 2013 WL 791158, at *7 (S.D. Ill. Mar. 4, 2013) (“The ALJ evidently did not understand that confabulation is a term of art in the practice of psychology. It means ‘confusion of imagination with actual memories, or the formation of false memories, due to a psychological or neurological disorder.’) (citation omitted). However, confabulation can also be more broadly interpreted to encompass deception in general. See, e.g., Thorogood v. Sears, Roebuck & Co., 678 F.3d 546, 549 (7th Cir. 2012) (“Consumers whose preference for stainless steel was unrelated to an anxiety about rust stains (almost certainly the vast majority) would not be upset to discover that an inconspicuous portion of the drum [of a clothes dryer] had been made of a different kind of steel that anyway was coated with ceramic and hence was rust-proof. One would have to have a neurotic obsession with rust stains (or be a highly imaginative class action lawyer) to worry about Sears’ drum. We said that, judging from the record and the argument of his lawyer, the concerns expressed by Thorogood [about the rust stains] were a confabulation.”) (citation omitted). The narrow usage is adopted here because the broad usage essentially encompasses intentional deception; for example, the use of the word “confabulation” by the Thorogood court is essentially a direct accusation of deliberate lying. See Thorogood, 678 F.3d at 549. 140. Nahum et al., supra note 44, at 2524. Confabulation shares similarities with and yet is often viewed as distinct from delusion, which pertains to the formation of false beliefs. Kopelman, supra note 44, at 15, 25; Asaf Gilboa & Mieke Verfaellie, Telling It Like It Isn’t: The Cognitive Neuroscience of Confabulation, 16 J. INT’L NEUROPSYCHOLOGICAL SOC’Y 961, 961–62 (2010). 141. Brown et al., supra note 44, at 2. LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 201 and the cognitive efforts required but rather the possibility that confabulations are present within PSI hearsay evidence. No known research directly examines whether PSI hearsay evidence is susceptible to confabulation. Nonetheless, existing research suggests that PSI hearsay is unlikely to be susceptible to the deleterious effects of confabulations.142 Scholars have identified some mechanisms underlying this phenomenon. This article classifies confabulations as either “spontaneous” or “provoked,” as proposed by Kopelman.143 Provoked confabulation, also known as intrusion, is a fleeting memory error that occurs when the memory is challenged.144 It is most commonly observed when a person, in recalling a list of words, reports words that were not included in the list.145 Although intrusions are more frequent among patients suffering from brain damage, healthy persons are not immune.146 This type of confabulation is thought to occur when the mind is challenged to retrieve more information from memory than is actually available.147 Intrusion errors may be made by healthy individuals and occur when weak memories are tested.148 But the typical PSI hearsay evidence is unlikely to involve such a memory challenge. None of the four cited cases resemble a test that requires recitation of a memorized list of words, a research paradigm in which intrusions are most frequently observed.149 Spontaneous confabulation is the persistent creation of false memories without the need for provocation.150 In one case, a patient would get out of bed every day and dress in formal clothes, convinced he had been called to a meeting

142. See McFarland, supra note 115, at 915 (explaining that memory is not involved when a declarant “makes a statement while perceiving an event.”). 143. See Kopelman, supra note 44, at 15, 20. The literature disagrees as to how confabulations should be classified. See Gilboa & Verfaellie, supra note 140, at 961–62 (noting various perspectives in the literature). But see Esther Lorente-Rovira et al., Confabulations (I): Concept, Classification, and Neuropathology, 39 ACTAS ESPAÑOLAS DE PSIQUIATRÍA 251, 253 (2011) (criticizing the Kopelman classification). The choice of Kopelman’s scheme does not materially affect the discussion about the susceptibility of PSI hearsay evidence to confabulation, but is intended as a framework for discussion. 144. Kopelman, supra note 44, at 15. 145. Chris McVittie et al., The Dog that Didn’t Growl: The Interactional Negotiation of Momentary Confabulations, 22 MEMORY 824, 825–26 (2014). 146. Sabine Borsutzky et al., Confabulations in Alcoholic Korsakoff Patients, 46 NEUROPSYCHOLOGIA 3133, 3141 (2008); Nahum et al., supra note 44, at 2531. 147. Nahum et al., supra note 44, at 2531; see Kopelman, supra note 44, at 15, 20–21. 148. Kopelman, supra note 44, at 21. 149. See supra Section III. 150. Kopelman, supra note 44, at 15. LAU 6/6/2017 1:38 PM

202 GONZAGA LAW REVIEW Vol. 52:2 the night before.151 It is a consequence of brain damage and is suffered by those with conditions such as Korsakoff’s syndrome or amnesia, for example.152 Attorneys are unlikely to introduce statements made by declarants known to suffer from brain damage as PSI hearsay evidence. It also seems unlikely, absent strong corroborating evidence, that jurors would credit such evidence. PSI hearsay may be susceptible to this type of confabulation in a case where the declarant is unknown, but, as Justice Scalia pointed out in his dissenting opinion in Navarette v. California, a PSI made by unknown declarants may not even be admissible from the outset.153 Kopelman acknowledges other types of confabulation; of these, false confessions and recovery of false memories may be important to the discussion of evidentiary reliability.154 False confessions may be intentional lies, such as those volunteered by persons who want to shield the true culprits.155 Alternatively, there is a species of false confessions in which innocent persons under coercive, interrogative settings gradually accept guilt and develop false memories to support the belief of guilt.156 A similar process occurs in the development and recovery of false memories.157 Common to both types of confabulation are lengthy questioning and pressure to accept narratives advanced by the questioners.158 While PSI hearsay evidence appears to be, with some frequency, statements made by declarants in their interactions with law enforcement, as in the four cases cited above, such statements do not often appear to be made under the type

151. McVittie et al., supra note 145, at 826. 152. Kopelman, supra note 44, at 18, 31; Nahum et al., supra note 44, at 2525, 2531– 32. 153. Navarette v. California, 134 S. Ct. 1683, 1693–94 (2014) (Scalia, J., dissenting). 154. Kopelman, supra note 44, at 21–24. Kopelman recognizes three other categories of false memories: false recognition syndrome; confabulations in schizophrenic patients; and pseudologia fantastica. Id. at 22–24. The first two are products of brain damage or mental disease. Id. Patients who suffer from pseudologia fantastica generate fantasies and lies compulsively. Id. As explained in the above section, it is unlikely that statements from victims of brain damage will often be introduced as PSI hearsay evidence. See supra text accompanying note 153. The same reasoning leads to the conclusion that these three types of false memories are unlikely to threaten the reliability of PSI hearsay evidence. 155. Saul M. Kassin, False Confessions: Causes, Consequences, and Implications for Reform, 17 CURRENT DIRECTIONS PSYCHOL. SCI. 249, 249 (2008). 156. Id. at 249; Kopelman, supra note 44, at 23–24; Gisli Hannes Gudjonsson et al., The Role of Memory Distrust in Cases of Internalised False Confession, 28 APPLIED COGNITIVE PSYCHOL. 336, 337 (2014). 157. Gudjonsson et al., supra note 156, at 337; Elizabeth F. Loftus, Planting Misinformation in the Human Mind: A 30-Year Investigation of the Malleability of Memory, 12 LEARNING & MEMORY361, 362 (2005). 158. McVittie et al., supra note 145, at 825–26. LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 203 of pressured questioning typically involved in the formation of false confessions or the recovery of false memories.159 Furthermore, in order for a piece of hearsay evidence to be corrupted by such confabulations, it would be necessary for law enforcement to develop and force a narrative about the relevant event or condition onto the declarant, for the declarant to accept the narrative, and generate false memories to support the narrative. The entire process requires some amount of time that is unlikely to fit within the window permitted by the PSI hearsay exception.160 Overall, confabulations do not appear to present much of a threat to the reliability of PSI hearsay evidence.

V. ACCURACY OF OBSERVATION UNDERLYING PSI HEARSAY EVIDENCE

The fact that a declarant honestly makes a PSI is no guarantee that the resulting hearsay is reliable. An honest declarant still must accurately observe the event or condition to generate reliable evidence. Without considering the effect of emotion, research suggests that attention generally facilitates accurate perception.161 For example, the accuracy and speed of the perception of objects is greatest within the area where one’s attention is directed.162 This enhanced effect of attention on perception is most pronounced

159. See United States v. Ibisevic, 675 F.3d 342, 346 (4th Cir. 2012) (interaction with airport security); United States v. Solorio, 669 F.3d 943, 947, 949 (9th Cir. 2012) (interaction between undercover DEA agents over the radio); United States v. Polidore, 690 F.3d 705, 708–09 (5th Cir. 2012) (interaction between 911 operator and police); United States v. Orm Hieng, 679 F.3d 1131, 1136 (9th Cir. 2012) (interaction between police counting contraband and reporting contraband to other officer). 160. See Ohio v. Clark, 135 S. Ct. 2173, 2178–81 (2015) (stating the Confrontation Clause may further restrict the admission of such hearsay). 161. William Prinzmetal et al., Voluntary and Involuntary Attention Have Different Consequences: The Effect of Perceptual Difficulty, 62 Q.J. EXPERIMENTAL PSYCHOL. 352, 355, 364 (2009). ”Attention” as used here refers to “voluntary attention.” Voluntary attention is the allocation of perceptual resources to the spatial location important to task goals. Id. It is distinct from “involuntary attention,” which is the involuntary capture of attention by a stimulus unrelated to the goal-directed activity. Id. Voluntary attention is by definition the type of attention implicated within the PSI hearsay exception. This is because a PSI declarant has the task goal of “describing or explaining an event or condition,” and his or her perceptual resources are directed to the “event or condition.” Id. at 352. 162. William Prinzmetal et al., Attention: Reaction Time and Accuracy Reveal Different Mechanisms, 134 J. EXPERIMENTAL PSYCHOL. GEN. 73, 81–82, 84, 88 (2005). LAU 6/6/2017 1:38 PM

204 GONZAGA LAW REVIEW Vol. 52:2 when the difficulty of perception is highest.163 Attention also results in a better ability to notice change164 and helps to improve the encoding of memories.165 Accordingly, it does not seem surprising that the rules of evidence would value PSI hearsay. A PSI—that is, “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it”166—generally should be supported by the force of attention. PSI hearsay evidence may therefore benefit from the enhanced perception due to the attention paid to the subject event or condition. Furthermore, a PSI is contemporaneous with the event or condition, and, unlike courtroom testimony, is less subjected to the deleterious effects of time on memories. As the Ninth Circuit noted in Orm Hieng:

The reason present sense impressions are considered inherently reliable is because statements contemporaneously describing an event are unlikely to reflect memory loss or provide an opportunity to lie.167

VI. CONCLUSIONS ABOUT THE PSI HEARSAY EXCEPTION

The federal courts have established two ways to evaluate hearsay reliability: (1) the susceptibility to fabrication, coaching, or confabulation; and (2) the accuracy of the underlying observation. However, they have not given guidance as to their relative importance, and it is often difficult to conclude whether a particular type of hearsay is sufficiently reliable to warrant an exception to the hearsay rule. This section re-summarizes research that speaks to the susceptibility of both PSI hearsay evidence to fabrication, coaching, or confabulation and to the probable accuracy of the underlying observations. It then presents some thoughts about how to view the PSI hearsay exception based on the collective teachings of these studies.

163. Prinzmetal et al., supra note 161, at 364. 164. Graham Davies & Sarah Hine, Change Blindness and Eyewitness Testimony, 141 J. PSYCHOL. 423, 431 (2007); Maurizio Corbetta et al., Selective and Divided Attention during Visual Discriminations of Shape, Color, and Speed: Functional Anatomy by Positron Emission Tomography, 11 J. NEUROSCIENCE 2383, 2397 (1991); see also Deborah Davis et al., ‘Unconscious Transference’ Can Be an Instance of ‘Change Blindness,’ 22 APPLIED COGNITIVE PSYCHOL. 605, 618–19 (2008) (diverted attention results in higher likelihood of failure to notice changes). 165. Marvin M. Chun & Nicholas B. Turk-Browne, Interactions Between Attention and Memory, 17 CURRENT OPINION NEUROBIOLOGY 177, 177 (2007). 166. FED. R. EVID. 803(1). 167. United States v. Orm Hieng, 679 F.3d 1131, 1147 (9th Cir. 2012) (Berzon, J., concurring) (emphasis added). LAU 6/6/2017 1:38 PM

2016/17 PRESENT SENSE IMPRESSIONS 205

Fabrication and coaching both reflect intentional lying. The intentional falsification of a PSI can be analyzed in three stages. First, the event or condition that is the subject of the PSI must be amenable to being lied about. This article identifies three characteristics of such an event or condition that may present some barrier to lying. Second, the declarant must, within the time period permitted by the PSI hearsay exception, make the decision to lie. The literature suggests that humans have a default response when presented with an opportunity to lie. This response hinges on the presence of a motivation to lie. Generally, when there is a motivation to lie, the default response is to lie, and when there is no motivation to lie, the default response is to tell the truth. Cognitive effort and time are necessary to overcome this response pattern. To that end, whether PSI hearsay evidence is generally free from lies is a question of whether declarants can quickly perceive any advantage to lying. Existing research is largely silent on whether PSI declarants have or could easily detect a motivation to lie, and it is unlikely that the question can be answered by future experimental research because experiments cannot probe the highly personal and situational motivation to lie. Third, lies inserted into a PSI must be of sufficient quality for the hearsay to be moved into evidence. The literature suggests that it is generally more difficult to create a lie than to tell the truth. The constraints attendant to the generation of PSI hearsay evidence—time pressure and the need for coherent narratives— render the task of lying even more cognitively taxing. However, simply because a task is difficult does not mean it is impossible. Existing research is not conclusive but does suggest that the difficulty of crafting good lies in PSI scenarios may reduce the incidence of lying. Confabulations are false memories which often result from brain damage or mental disease. While healthy persons may also confabulate, they generally do so during memory tests or lengthy and pressured questioning. Confabulations do not appear to present much threat to the PSI hearsay exception. As previously discussed, the accuracy of observation underlying a type of hearsay statement is another measure of reliability. The research literature makes clear that attention tends to improve the accuracy of observation. To the extent that a PSI about an event or condition reflects attention to that event or condition, the PSI may be of heightened reliability. In sum, there is some support for the idea that PSI statements, at least, those that are not colored by emotion and that do not qualify as EU, may be reliable. While the Advisory Committee’s rationale as to why those types of evidence are reliable may benefit from an update in view of modern research, it is supported by some research. Still, the research is not conclusive, and some of the preliminary questions may not even be possible or practical to answer. It may LAU 6/6/2017 1:38 PM

206 GONZAGA LAW REVIEW Vol. 52:2 well be that there will always be a cloud as to the reliability of PSI statements. And if experiments must be done, it is important for researchers to create experimental paradigms that better reflect not only the timing elements required for PSI hearsay statements but also capture the typical situations involved as best as can be manipulated in an experimental setting. The author urges researchers to perform these important studies to confirm the broader results discussed throughout the article in a more generalizable hearsay context. Nonetheless, based on the teachings of the existing studies, should PSI’s deserve a hearsay exception? What the reader thinks about this question is in large part dependent on whether s/he is more or less willing to sense a motivation to lie. On one extreme is the cynic who can identify, behind any statement, a motivation to lie. Under this view, there is no such thing as a neutral observer. The accuracy of observation matters little to the cynic because no one can be counted on to honestly state what is observed, accurate or not. What is important to him or her is a particular hearsay statement’s susceptibility to intentional lies. Along those lines, the cynic thinks little of the barriers to lying in PSI scenarios. After all, the presence of motivation to lie, assumed to always exist, governs the default decision to lie, and, as a result, a PSI will be free of lies only when it is in the self-interest of the declarant not to lie. The cynic is likely to conclude that the PSI hearsay exception should be scrapped. On the other extreme is the totally trusting person who hesitates to ever find a motivation to lie. This person will value the accuracy of observation over the susceptibility of lying because s/he does not think that lying is much of a problem. To that end, s/he will give particular weight to the research findings that, in the case of PSI’s, the accuracy of observation may be enhanced. And even if s/he concedes the possibility of the existence of lies, s/he thinks that the motivation to lie is often absent and that few will make the decision to lie in the typical PSI scenario. Such a person will consider PSI hearsay evidence as generally reliable and will likely be in favor of keeping the hearsay exception. Whether the PSI exception should be kept or scrapped is a difficult question to which there actually may neither be a right nor a wrong answer.