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Hearsay—Excited Utterances Must “Relate to the Startling Event or Condition”

July 5, 2011

One of my students raised an interesting point today about United States v. Marrowbone, 211 F.3d 452 (8th Cir. 2000) which warrants a brief discussion.  In Marrowbone, the young victim told his mother he had gotten drunk, and then was raped by the defendant.  His mother called the police asking that her son be arrested for unlawful intoxication.  When the police did not show for two hours, she again called and made the same request, saying nothing to the police about the rape.  When the police finally arrived and took the young victim into custody for intoxication, he made statements to an officer about the rape.  The trial judge allowed the officer to testify as to the victim’s statements, ruling the statements were excited utterances. 

The Eighth Circuit reversed, holding the statements, which were made more than three hours after the rape, did not meet the second element we discussed before, “the statement [must] be made before there is an opportunity to contrive or misrepresent.”  United States v. Beverly, 369 F.3d 516, 540 (6th Cir. 2004).  The court went on to explain that the victim had a particular “reason to fabricate because making a charge of molestation might enable him to avoid a night in jail for being intoxicated.”  The student’s comment in class today follows up on this point made by the Marrowbone court.  The comment was that perhaps the young victim’s statement was made under the stress caused by being arrested and having to spend a night in jail, not under the stress caused by the rape.  The comment points out an element of the foundation for the admission of an excited utterance that often is overlooked, one not mentioned by the Sixth Circuit in Beverly.  As the rule clearly states, the statement must be one “relating to a startling event or condition,” meaning the subject matter of the statement must relate to the event or condition that caused the stress, not some unrelated event.

So, let’s consider another version of the elements for the admissibility of an excited utterance, this one from Miller v. Keating, 754 F.2d 507 (3d Cir. 1985) (Our Book at 729).  The Miller court called the elements “the established case law requirements for admission of a statement under Fed. R. Evid. 803(2),” and then said:

Wigmore defines these requirements as: (1) a startling occasion, (2) a statement relating to the circumstances of the startling occasion, (3) a declarant who appears to have had opportunity to observe personally the events, and (4) a statement made before there has been time to reflect and fabricate.

This also gives us a chance to think about another point.  While the startling event must be one to which the statement is related, the startling event need not be the crime or event out of which the litigation arises.  This is shown by the facts of Beverly itself.  The startling event was Mrs. Parks seeing a photo of her husband robbing a bank four years earlier.  Her statement, however, was one “relating to [the] startling event” of seeing the photograph.  Beverly was discussed in the “Oh, my God” blog on July 3.

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