Chapter 11 - § 11.4 • EXCITED UTTERANCES

• Jurisdiction: Colorado

§ 11.4 • EXCITED UTTERANCES

§ 11.4.1—Introduction

An excited utterance is 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." CRE 803(2). There are three requirements for admission of an excited utterance as an exception to the hearsay rule, which applies regardless of the declarant's availability to testify: (1) there is an occurrence or event "sufficiently startling to render inoperative the normal reflective thought processes of the observer," (2) the declarant's statement was "a spontaneous reaction to the occurrence or event and not the result of reflective thought," and (3) direct or circumstantial evidence supports an inference that the declarant had the opportunity to observe the startling event. Compan v. People, 121 P.3d 876, 882 (Colo. 2005), overruled on other grounds by Nicholls v. People, 396 P.3d 675 (Colo. 2017); People v. Dement, 661 P.2d 675 (Colo. 1983), abrogated on other grounds by People v. Fry, 92 P.3d 234 (Colo. App. 2005); People v. Geisick, 411 P.3d 186, 189 (Colo. App. 2016) (finding "little in the record" suggested officer's statement was an excited utterance because "everything had calmed down" but finding any error harmless). The excited utterance exception "has been liberally interpreted so as to extend to statements made following a lapse of time from the startling event itself." People v. Stephenson, 56 P.3d 1112, 1116 (Colo. App. 2001). However, in Stephenson, the court of appeals held that a statement made three hours after a shooting was not a spontaneous excited utterance. Id. A case-by-case analysis is required and there is no bright-line time limitation "because the duration of stress will obviously vary with the intensity of the experience and the emotional endowment of the individual." Id.

The key to this exception is spontaneity. The statement need not have been made contemporaneously with the event, but it must have been made before there was time for fabrication. The rationale supporting the excited utterance exception is that statements made under the stress of excitement are generally reliable because of a lack of time to fabricate. W.C.L. v. People, 685 P.2d 176, 179 (Colo. 1984) (reversing and holding statements made by child in response to aunt's reaction were not excited utterances). The exception recognizes that "circumstances may produce a condition of excitement which temporarily stills the capacity of...