NEW YORK'S EXCITED UTTERANCE HEARSAY EXCEPTION: AVE ATQUE AND VALE?

• Author: Hutter, Michael J.

1. INTRODUCTION

   New York's common law "excited utterance" exception to the rule against hearsay allows into evidence out-of-court statements "about a startling or exciting event... provided the statement was made under the stress of nervous excitement resulting from the event and was not the product of studied reflection and possible fabrication." (1) Over the course of one hundred and forty years, the exception has evolved from the concept of res gestae, requiring the statement to accompany an act and tend to explain its character and quality, (2) to a statement made after an exciting event and within such time as precludes fabrication. (3) Despite the general prohibition on hearsay, the courts, since as early as the 1800s, had begun their recognition that certain exceptions to the ban were warranted when the out-of-court statement contained "sufficient indicia of reliability to deem them worthy of admission into evidence," (4) and one of these exceptions was the excited utterance exception. The theory was that a statement admitted under the exception was sufficiently reliable to be considered by a jury as the stress of excitement limits the ability of the declarant to utter a conscious and intentional fabrication. (5)

   Since the recognition of the excited utterance exception in New York, there have been no widespread or organized claims that unreliable hearsay is being regularly admitted under the exception at trials, leading to wrongful convictions or flawed liability verdicts. Rather, commentators have addressed matters dealing with the judicial interpretation and application of the exception, and potential issues in its use in certain types of cases. As to the former, commentators have noted the exception has been too strictly applied, excluding evidence that by all accounts is reliable, (6) and too liberally applied, leading to likely unreliable evidence being admitted. (7) With respect to the latter, commentators have urged use of the exception, albeit cautiously, in domestic violence cases. (8)

   However, in recent years the exception has come under attack by New York judges and commentators. Court of Appeals Associate Judge Jenny Rivera, in a concurring opinion, has argued that the conceptual underpinnings of the exception have been debunked by "[s]cience, fact, and common sense," which requires the exception to be abolished. (9) This view has been shared by three New York trial judges. (10) In Judge Rivera's opinion, the exception has been used to put forth inherently unreliable evidence (11) leading to wrongful convictions. Notably, Judge Rivera and other judges point to no recent empirical research supporting their contention, much less claims to that effect. Their attack is derived from academic commentary that questions the soundness of the exception's underlying rationale. (12)

   This article will address Judge Rivera's criticism and the soundness of the sources she relies upon, and assess the continued recognition of the excited utterance exception in New York. It will do so after a discussion of the emergence of the exception and its underlying rationale; the exception's foundation elements for admissibility and the determination thereof; the genesis of the present criticism; and the legitimacy of that criticism. The article will conclude by showing a case for the exception's abolition, or even modification, has not been made. The rule should remain as interpreted by the Court of Appeals.

2. EMERGENCEOFTHE EXCITEDUTTERANCEEXCEPTION INNEWYORK

   1. Origin of the Exception

      The origin of the excited utterance exception can be traced to an old English rule which permitted a hearsay statement to be admitted into evidence for its truth only if the statement was strictly contemporaneous in time to an event that it explains or characterizes. (13) No inquiry was made as to whether the statement carried indicia of reliability. (14) This rule was often referred to as the res gestae rule. (15)

      The early common law cases in New York consistently followed the English rule. (16) In 1884, the Court of Appeals decided Wadele v. New York Cent. and Hudson Riv. R.R. Co. (17) Wadele involved an action to recover damages for the alleged negligence of defendant railroad causing the death of plaintiff's intestate. (18) He had been found lying near a railroad track shortly after a freight train passed a street crossing on defendant's road, followed by an engine going backward. (19) No one saw the accident. (20) A witness for plaintiff was permitted to testify, over objection, to declarations made by plaintiff's intestate, a deaf-mute, by means of signs about thirty minutes after the accident to the effect that there was a long train, that he waited for it to go by, and was struck by an engine which followed. (21) The Court held that the declarations could not be treated as part of the res gestae, noting no authority in New York supported such a position as they "were not made at the same time, or so nearly contemporaneous with [the accident] as to characterize it, or throw any light upon [the accident]." (22) Having so concluded, the Court nonetheless noted criticism of the res gestae rule and as well the existence of a line of authority outside New York that admitted statements made shortly after an event, although clearly narrative, if the surrounding circumstances indicated some probability of truth. (23)

      It is notable that in Wadele the Court discussed at length the decision of the Supreme Judicial Court of Massachusetts in Commonwealth v. Hackett, (24) and did so favorably. (25) In Hackett, the prosecution offered evidence that Hackett stabbed the victim and then immediately ran away. (26) A witness for the prosecution testified that he heard the victim scream "I'm stabbed" (27) and when the witness approached the victim, the victim twenty seconds later said, "I'm stabbed--I'm gone--Dan Hackett has stabbed me." (28) Hackett argued that the statements were "mere narration of a past event," and thus fell outside the res gestae rule. (29) In rejecting the argument and holding the testimony was admissible, the Court held:

      If it was a narrative statement, wholly unconnected with any transaction or principal fact, it would be clearly inadmissible. But such was not its character. It was uttered immediately after the alleged homicidal act, in the hearing of a person who was present when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him after so brief an interval of time that the declaration or exclamation of the deceased may fairly be deemed a part of the same sentence as that which followed instantly after the stab with the knife was inflicted. It was not therefore an abstract or narrative statement of a past occurrence, depending for its force and effect solely on the credit of the deceased, unsupported by any principal fact, and receiving no credit or significance from the accompanying circumstances. But it was an exclamation or statement, contemporaneous with the main transaction, forming a natural and material part of it, and competent as being original evidence in the nature of res gestae. The true test of the competency of the evidence is not, as was urged by the counsel for the defendant, that it was made after the act was done, and in the absence of the defendant. These are important circumstances, entitled to great weight, and, if they stood alone, quite decisive. But they are outweighed by the other facts in proof, from which it appears that they were uttered after the lapse of so brief an interval, and in such connection with the principal transaction, as to form a legitimate part of it, and to receive credit and support as one of the circumstances which accompanied and illustrated the main fact, which was the subject of inquiry before the jury. (30) Excitement, however, was not mentioned as a factor in determining admissibility.

      In People v. Del Vermo, the Court of Appeals abandoned its adherence to the res gestae rule, and recognized a separate hearsay exception for "spontaneous exclamations" or declarations, terminology which has given way to "excited utterance." (31) In Del Vermo, the defendant was charged with murder in the first degree, committed by stabbing the victim with a knife. (32) A witness testified that he was walking with the defendant and the victim when the defendant started to run. (33) The victim then took four or five steps and fell to the ground. (34) The witness asked him, "What is the matter?" and he answered, "Del Vermo stabbed me with a knife." (35) The Court held the testimony was properly received under the exception to the general rule excluding hearsay evidence, which is treated by Professor Wigmore under the convenient term of "spontaneous exclamation." (36) The Court stated the exception as follows:

      Evidence is admissible of exclamatory statements declaratory of the circumstances of an injury, when uttered by the injured person immediately after the injury, provided that such exclamations be spontaneously expressive of the injured person's observation of the effects of a startling occurrence, and the utterance is made within such limit of time as presumably to preclude fabrication. It will be observed that this exception contemplates and permits proof of declarations by an injured person made after the event, so that it cannot fairly be said that the words spoken really constituted a part of the thing done. (37) Professor Wigmore was the first to categorize spontaneous declarations as an exception to the hearsay rule independent of the res gestae rule. (38) The key to this exception in his view was that "[t]here must be some shock, startling enough to produce [the] nervous excitement and render the utterance spontaneous and unreflecting." (39) The exception, he said, was

      based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the...