Tcl - Admissibility of Hearsay Under the Dying Declaration and Excited Utterance Exceptions - November 2005 - Evidence

• Publication year: 2005
• Pages: 89
• Citation: Vol. 34 No. 11 Pg. 89

34 Colo.Law. 89 Colorado Bar Journal 2005.

2005, November, Pg. 89. TCL - Admissibility of Hearsay Under The Dying Declaration and Excited Utterance Exceptions - November 2005 - Evidence

The Colorado Lawyer
November 2005
Vol. 34, No. 11 [Page 89]

Departments and More
Evidence
Admissibility of Hearsay Under The Dying Declaration and Excited Utterance Exceptions
by Jeffrey D. Whitney

Those interested in submitting an article for publication in the Evidence column should contact the editor, Lawrence M. Zavadil, at (303) 389-4644 or lzavadil@jcfkk.com.

This month's article was written by Jeffrey D. Whitney, Denver, an associate with Holme Roberts & Owen, LLP - (303) 861-7000, jeff.whitney@hro.com.

Q: Is hearsay evidence admissible under the dying declaration or excited utterance hearsay exceptions in a criminal prosecution?

A: Hearsay evidence that is considered "testimonial" is not admissible in a criminal prosecution unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. "Non-testimonial" hearsay is admissible under the dying declaration or excited utterance hearsay exception if the witness is unavailable.

Assumed Facts

As he was walking home from a soccer match, Vic Timm was attacked by Blade Wielder, a member of the opposing soccer team. Upset over a controversial goal Timm scored, Wielder assaulted and stabbed Timm. Hearing Timm's cries for help, Joe Passerby ran to Timm's aid. Hysterical from the attack, Timm told Passerby that he had been stabbed by Wielder and that he thought he was going to die. Passerby immediately called for an ambulance and also called the police.

Police Officer Farva rode in the ambulance with Timm and questioned Timm about the attack. Between hysterical screams of "I'm going to die!" Timm was able to tell Farva that he was stabbed by Wielder. Tragically, Timm died later that evening in the hospital.

At Wielder's trial, the prosecution seeks to introduce the statements made to Passerby and Officer Farva. Wielder objects that admission of Timm's statements would violate his right to be confronted with the witnesses against him. The prosecution argues that admission of Timm's statements would not violate the Confrontation Clause of the Sixth Amendment to the U.S. Constitution ("Confrontation Clause")1 because the statements fall within the "dying declaration" and "excited utterance" hearsay exceptions. The trial court...