§ 33.05 Excited Utterances: FRE 803(2)
| Jurisdiction | United States |
The excited utterance exception had long been recognized by the common law, although rarely by that name; early cases treated such statements as res gestae,18 and the later cases used the term "spontaneous exclamations."19
Rationale. The reliability of excited utterances is based upon the declarant's lack of capacity to fabricate: "a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication."20 Reduced memory risk is a secondary justification. Nevertheless, the stress of an exciting event, especially if the declarant is a participant rather than merely an eyewitness, often enhances the risk of misperception.21
Rule 803(2) requires: (1) a startling event or condition, (2) a statement relating to that event, (3) made by a declarant with firsthand knowledge, and (4) made while the declarant was under the stress of the excitement caused by the event. The differences between this exception and the present sense impression exception are examined below. The trial court determines the admissibility of excited utterances under Rule 104(a).
[A] "Startling Event" Requirement
The "startling event" requirement follows from the theory underlying the exception—without a startling event, the declarant's capacity to reflect and fabricate will not be suspended. In other words, there must be some occurrence startling enough to halt reflective faculties.22 Merely being "upset" is not sufficient. Assaults and traffic accidents are typical examples.23 In some cases the revival of a memory of a traumatic event results in a stressful excitement.24 For example, in one case, a child-witness's return, three days later, to the scene where he witnessed his brother's murder "was a startling event which produced in him a nervous excitement and . . . t his nervous excitement stilled his reflective faculties."25 Similarly, in another case, viewing a photograph of a person that the declarant recognized as her husband committing a bank robbery was the startling event.26
Proof. Proof of the startling event may consist of extrinsic evidence of the event, including the condition and appearance of the declarant.27 In addition, the utterance itself may establish the existence of a startling event.28 Consideration of the statement for this purpose is permissible under Rule 104(a).29
[B] "Under Stress" Requirement
The statement must have been made while the declarant was under the stress of excitement caused by the event or condition. This requirement follows from the underlying theory of the exception; unless the declarant is speaking while under the influence of the event, her capacity to reflect and fabricate will not be suspended.30 The statement itself may indicate that the declarant was under the stress of excitement.31 Many courts apply a more expansive interpretation of the rule in child abuse cases.32 Several factors should be considered: "(1) The lapse of time between the event and the declarations; (2) the age of the declarant; (3) the physical and mental state of the declarant; (4) the characteristics of the event; (5) the subject matter of the statements."33
Time requirement. There is no explicit "time element" for the rule.34 The statement may be admissible even if not contemporaneous with its exciting cause.35 Statements made after substantial time has elapsed may be admissible so long as the declarant remained under the influence of the exciting event.36 "[A] period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited-utterance exception to the hearsay rule."37
Response to questioning. A statement made in response to a question may fit within the exception if made under the stress of the startling event.38 In one case, nods by a victim who was intubated and therefore unable to speak were held admissible.39 In some cases, however, questioning the victim in child abuse cases may be problematic.40
[C] Declarants; "Unidentified" Declarants
The declarant may be a participant in the event—for example, the victim of an assault or the driver in an automobile accident. The declarant may also be a bystander.41If the bystander-declarant is unidentified, admissibility of the statement requires close scrutiny.42 For example, the firsthand knowledge rule must be satisfied,43 although the opportunity to observe may be inferred from the circumstances. The federal drafters noted, "[W]hen declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient, a result which would under appropriate circumstances be consistent with the rule."44
This issue is sometimes known as the "phantom" witness problem. This term can be used in two different ways. It may cover situations where trial counsel is challenging the existence of a declarant, not just the declarant's identity. This is not a hearsay problem because counsel can cross-examine the witness who is claiming to be relating the hearsay statement. In other words, if counsel is attacking the credibility of the witness, not the declarant, there is no hearsay issue. The witness can be cross-examined.
[D] Subject Matter Requirement
Rule 803(2) requires that the statement "relate" to a startling event.45 This requirement simply refines the "under the stress of the excitement" rule discussed previously. Statements that do not "relate" to the startling event indicate that the declarant is no longer speaking while under the influence of the event. The D.C. Circuit explained the issue this way:
As soon as the excited utterance goes beyond description of the exciting event and deals with past facts or with the future it may tend to take on a reflective quality. In other words, the very fact that the utterance is not descriptive of the exciting event is one of the factors which the trial court must take into account in the evaluation of whether the statement is truly a spontaneous, impulsive expression excited by the event.46
[E] Present Sense Impressions Distinguished
Although present sense impressions and excited utterances often overlap, there are significant differences between the two exceptions. The reliability of present sense impressions rests upon the declarant's lack of time to fabricate, whereas the reliability of excited utterances is based upon the declarant's lack of capacity to fabricate. This difference in theory explains the disparate requirements for each exception. For example, a startling event is required for the excited utterance exception but not for the present sense impression exception. In addition, the time requirement is more stringent for present sense impressions than for excited utterances. An excited utterance could be made 30 minutes (sometimes hours) after the exciting event, so long as the declarant is under the influence of the excitement caused by the event at the time...
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