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Excited Utterance
10
Excited Utterance
Professor Ledwon
Evidence
Espeut, Exposito, Tobon
Rule 803
Rule 803. Exceptions to the Rule Against Hearsay
Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
First Prerequisite
First Prerequisite
Statements are excited utterances if they (a) relate to a startling event, and (b) the declarant spoke while still feeling the stress of that event. Statements that meet these conditions are admitted for the truth of the matters they assert.
- The exceptions rest on the assumption that declarants making these types of statements do not have the time or mental capacity to reflect on the situation and formulate a lie about what happened; thus, they are more reliable than other types of hearsay.
- The judge determines whether the factual conditions for these exceptions are met. In making close factual calls, such as about the immediacy of a statement, the judge will refer to the policy underlying these exceptions. Statements made under circumstances that suggest little opportunity for fabrication are more likely to meet the factual predicates.
Second Prerequisite
Second Prerequisite
An excited utterance must "relat[e] to" the startling event. The required statement must describe or explain the event.
- An excited utterance may move beyond description by analyzing or interpreting the event. But the utterance still must relate to the provoking event.
- Unrelated comments are not admissible under this exception, even if the declarant makes them while still excited.
- Rule 803(2) does not limit excited utterances to statements that occur during the startling event or “immediately after.” Instead, the declarant must speak while still in an excited state. The duration of this excited period depends on the characteristics of the declarant, as well as of the startling event.
Why is an excited utterance permitted in court?
Rationale
The Rules of Evidence permit parties to introduce excited utterances because these statements have special indicia of reliability; as a class, these types of statements are more reliable than the usual out-of-court statement.
A person responding to a startling event has little opportunity to concoct falsehoods.
In the words of the Advisory Committee, the “condition of excitement … temporarily stills the capacity for reflection and produces utterances free of conscious fabrication.”
Can Written Statements Be Admissible as an Excited Utterance?
Question
A. Yes
B. No
Explanation
The fact that a statement was written usually weighs against admission as an excited utterance; the act of writing implies that there was “time and opportunity for reflective thought.”
But other factors may persuade the judge that a declarant was sufficiently excited when she wrote a statement.
Written excited utterances will probably become more common in the age of social media and texting. These media outlets generate many more instances of real-time writing than occurred in the age of handwritten notes and typewritten letters.
There is no absolute bar against admitting written statements as excited utterances. The judge will examine the facts that surround the writing, just as with oral statements.
Explanation
Casey Anthony: 911 call
911 Call
Tot's grandmother to 911: Dead body in the car
Statements from 911 calls can be admissible under the hearsay exception of excited utterance if:
(i) The presence of a serious occurrence causes a state of nervous excitement or physical shock in the declarant
(ii) the declaration was made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it
(iii) There is presence of the circumstances, which in their totality suggest spontaneity and sincerity of the remark
U.S. v. Graves: Hypothetical
After receiving a 911 call from a neighbor reporting gunshots being fired, Officer Hubert arrived approximately 20 minutes later at the residence of W.D. the location of the incident. When asked by Officer Hubert, “What is going on here?” W.D. responded frantically stating, “He pointed his shotgun at me and threatened to shoot me!” At trial, W.D. testified that she had lied about the entire incident because she was angry at the defendant and that he had never threatened her with his shotgun.
In the case at hand, would W.D.’s statement to Officer Hubert be deemed admissible?
A. No, because she testified to lying about the statement and so it should not be admitted.
B. No, W.D.’s statement is inadmissible hearsay.
C. Yes, it would be admissible under the excited utterance exception.
D. Yes, it would be admissible under the present sense impression exception.
United States v. Graves, 756 F.3d 602 (8th Cir. 2014)
Answer Explained
Answer Explained
C. Is the correct answer because under the holding of United States v. Graves, the statement given by W.D. is admissible under FRE 803(2) Excited Utterance. As explained in this case, the rationale behind this particular exception derives from the teaching of experience that the stress of nervous excitement or physical shock stills the reflective faculties, thus removing an impediment to truthfulness. The rapidity of W.D.’s statement to Officer Hubert did not give her time to reflect on her response. Her obvious frantic state made it clear that the shock of the situation had not ceased to exist in the 20 minutes it took Officer Hubert to arrive on the scene. Therefore W.D.’s statement bore a “guarantee of trustworthiness” and was admissible as an excited utterance.