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Hearsay—“Oh My God!” it’s an Excited Utterance

July 3, 2011

As always, we start with the text of the rule:

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though 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 caused by the event or condition.

To study the foundation for the admissibility of an excited utterance, let’s consider United States v. Beverly, 369 F.3d 516 (6th Cir. 2004).  Johnny Crocket was one of three men on trial for bank robbery.  The following passage from the opinion describes the facts, and shows how the government was able to lay the foundation for the admissibility of excited utterances under Rule 803(2):

Following Crockett’s arrest in July 1999, FBI Agent Trombitas went to Crockett’s home in order to interview Crockett’s wife, Mrs. Parks. Trombitas first informed Mrs. Parks that her husband had been arrested earlier in the day for his involvement in several bank robberies. Agent Trombitas then showed her a photograph that was taken during the bank robbery at the Security National Bank, which occurred on May 18, 1995, approximately two years before Crockett and Mrs. Parks were married, but nevertheless during their acquaintance. Mrs. Parks identified the man that Trombitas pointed to in the photograph as her husband.

The government sought to admit this pretrial identification at trial and Crockett filed a motion to suppress. As a result, Judge Graham held a pretrial hearing on the admissibility of Mrs. Parks’s identification. At the pretrial hearing, Trombitas testified as to the circumstances under which the identification was made. Trombitas explained that he took out the photograph, placed it in front of her and asked, “do you recognize that person there?” According to Trombitas, Mrs. Parks picked up the photograph, and with one hand on her mouth, said “oh, my God, that looks like Johnny.” At that point, Trombitas noticed her eyes tearing up and asked her to reaffirm the identification, saying: “so that looks like Johnny?” Ibid. Mrs. Parks responded “yes, it does, it’s him, and I’m not going to lie for him.” Ibid. At this point, Mrs. Parks began to cry. Upon Trombitas’s request, Mrs. Parks turned over the photograph and placed her name, the date, and Crockett’s name on the back of the photograph. Judge Graham ruled that, based upon the totality of the circumstances, the photographic identification procedure was sufficiently reliable to permit the witness to testify.

The Sixth Circuit analyzed the admissibility of the statements in terms of the elements of the foundation:

The district court separately analyzed the question of whether Agent Trombitas would be allowed to testify about the statements made by Mrs. Parks during his interview, in which she identified Crockett as one of the men in the bank surveillance photo. It is undisputed that Trombitas’s testimony with regard to Mrs. Parks’s identification of Crockett was hearsay; what is disputed is whether the comments were “excited utterances” and therefore within an exception to the hearsay rule. Federal Rule of Evidence 803(2) provides that “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not barred by the hearsay rule. The excited utterance rule requires that 1) there be an event startling enough to cause nervous excitement; 2) the statement be made before there is an opportunity to contrive or misrepresent; and 3) the statement be made while the person in under the stress of the excitement caused by the event.

369 F.3d at 539-40.

Discussing whether this second element was satisfied, the Sixth Circuit noted the words “oh, my God,” indicate the statement was made “before she could have had an opportunity to ‘contrive or misrepresent.’”  The “oh, my God,” preface to any comment indicates spontaneity, which is what the Advisory Committee says is at the core of the exception:

The theory of Exception [paragraph] (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. 6 Wigmore § 1747, p. 135. Spontaneity is the key factor … .

The elements of the foundation for an excited utterance are described slightly differently under the South Carolina Rules of Evidence.  In State v. Ladner, 373 S.C. 103, 644 S.E.2d 684 (2007), our supreme court examined Rule 803(2) to determine the elements:

Looking at the rule, there are three elements that must be met to find a statement to be an excited utterance: (1) the statement must relate to a startling event or condition; (2) the statement must have been made while the declarant was under the stress of excitement; and (3) the stress of excitement must be caused by the startling event or condition.

373 S.C. at 116, 644 S.E.2d at 691.

In State v. Washington, 379 S.C. 120, 665 S.E.2d 602 (2008), our supreme court applied those three elements as including a “spontaneity” requirement.  The State claimed a statement given by a murder witness was admissible as an excited utterance.  The court held the State failed to satisfy the elements of the foundation, and the statement should not have been admitted.

Cropper’s statement to police does not qualify as excited utterance. Cropper made her statements in a formal interview with law enforcement at police headquarters almost ninety minutes after the events. These statements were made in response to the Officer’s questions. None of the statements were independent assertions or exclamations regarding the events. Indeed, it is apparent that the Officer was seeking detailed answers regarding the specific facts of the incident as opposed to emotional, unprompted, or inherent responses.  …  While we have no doubt that Cropper was certainly upset as a result of the stabbing, the trial court’s finding that statements made in a formal interview or interrogation to be excited utterances greatly expands the scope of the exception.

We note that this Court has found statements made to law enforcement qualify as an excited utterance under other circumstances. See Burdette; Harrison, Quillien, … . However, an important distinction between Burdette, Harrison, and Quillien and the instant case is the fact that Cropper’s statements were responses made in a formal police interview. In this way, Cropper’s out-of-court statements are fundamentally different from the off-the-cuff, volunteered responses to law enforcement that the Court has allowed under the excited utterance exception. See State v. McHoney, 344 S.C. 85, 94, 544 S.E.2d 30, 34 (2001) (observing that an excited utterance expresses the real belief of the speaker because the utterance is made under the immediate and uncontrolled domination of the senses, rather than under reason and reflection).

379 S.C. at 124-25, 665 S.E.2d at 604.

The admissibility of hearsay statements as exceptions to Rule 802 depends on whether the proponent can lay the foundation, and whether the opponent can defeat the foundation.  The elements of the foundation can be described differently and both descriptions be correct, as we see comparing Beverly to Ladner and Washington.  In any event, examining the existence of those elements is critical to admissibility.  We’re going to focus on “elements of foundation” for the rest of the summer, and you will do well to bring that focus to the exam.

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