Section 16.17 Present Sense Impression and Excited Utterance

• Library: Evidence 2017

C. (§16.17) Present Sense Impression and Excited Utterance

The present sense impression and excited utterance exceptions both allow the admission of statements made at or near the occurrence of the act or event about which the statement is made. The statements are considered trustworthy because they are made before the declarant has an opportunity to reflect on the event—and possibly fabricate a statement—or (in the case of the excited utterance) while the declarant is still under the influence of the event causing the excitement. The use of the term “res gestae” to articulate the legal reason for admission of the evidence has been criticized by the Supreme Court of Missouri. Bynote v. Nat’l Super Mkts., Inc., 891 S.W.2d 117, 121 (Mo. banc 1995) (the use of the term res gestae is “virtually meaningless” to determine why the evidence was admitted). But seeState v. Smoot, 363 S.W.3d 108 (Mo. App. E.D. 2011) (a recording on the answering machine was admissible as part of the res gestate of forcible rape and sodomy).

The primary difference between the present sense impression and the excited utterance is timing. The present sense impression applies to statements made simultaneously, or almost simultaneously, with the occurrence or the act. SeeState v. Ise, 460 S.W.3d 448 (Mo. App. W.D. 2015) (motorists’ calls to 911 met the hearsay exception for present sense impression and were nontestimonial); Lindsay v. Mazzio’s Corp., 136 S.W.3d 915, 923 (Mo. App. S.D. 2004) (a statement about the wet floor was an excited utterance and a prior inconsistent statement). There may be a greater lapse of time between the occurrence and the excited utterance—as long as the “exciting” event continues to wield its influence over the declarant’s mind. The hearsay exception is illustrated in the following cases:

· State v. Dunn, 821 S.W.2d 512 (Mo. App. W.D. 1991) (CB transmissions regarding a vehicle traveling in the wrong lanes of a divided highway were admissible as excited utterances)

· United States v. Cain, 587 F.2d 678 (5^th Cir. 1979) (CB transmissions 45 minutes after an accident were not present sense impressions)

· State v. Chapman, 724 S.W.2d 713 (Mo. App. S.D. 1987) (statements to an officer arriving at the scene almost 30 minutes after the accident were not excited utterances)

The excited utterance exception allows the admission of a statement made as a spontaneous reaction to a startling event. These statements are considered trustworthy because the nature of the...