Simplifying the Excited Utterance Exception to Hearsay

The basics of the Excited Utterance exception.

The Excited Utterance exception applies to statements made outside of a courtroom by a declarant who was overpowered by their emotions and, as a result, did not have time to think about the effects of the statement. Excited Utterance can be found under Rule 803(2) of the Federal Rules of Evidence.

Yes, that's quite the definition to the Excited Utterance exception. But don't worry, we'll simplify everything in this post.

Quick note: to properly understand the Excited Utterance exception to the rule against hearsay, you must first understand the basics of hearsay. Therefore, if you're new to hearsay, check out this Guide to Hearsay before reading on. 

Let's dive in!

Where are the hearsay exceptions?

The hearsay exceptions can be found in Rules 803 and 804 under the Federal Rules of Evidence.

Fundamentally, when you analyze hearsay exceptions, you need to remember to follow the 7-Step Process for Analyzing Hearsay. Part of this means that the statement should be relevant (Rule 402), satisfy Rule 403, and is actually hearsay (i.e., not non-hearsay). 

Once you determine that these three elements are satisfied, then you should first look to Rule 803 to determine whether a hearsay exception applies. Unlike Rule 804, Rule 803 applies regardless of whether the declarant is available to testify (making Rule 804 more difficult to satisfy).

When does the Excited Utterance exception apply?

The elements for the Excited Utterance exception fall under FRE Rule 803.

Boiled down, this exception applies to a statement made during the stress of a "startling event or condition."

Like the Present Sense Impression exception, Excited Utterance falls under the spontaneous category of hearsay exceptions. This means that excited utterances are spontaneous statements made without any thought to the effect of the statement.

As a result, a spontaneous statement (like an excited utterance) is usually seen as more trustworthy because the declarant did not have the time to strategically make the statement in their best interest.

With Excited Utterance, the focus is whether the declarant's statement was made while the declarant was under the stress of a startling event. 

Was the declarant being controlled by the excitement?

Or did the declarant have control of their reaction and thereby have enough time to consider their statement?

This distinction is critical. 

Let's go through an example of the Excited Utterance exception to fully master this concept. 

Example of the Excited Utterance exception. 

You are a Plaintiff's attorney representing a car-accident victim. Your goal is to demonstrate that the Defendant ran a red light, which caused the wreck and your client's injuries. There is only one Witness to the whole incident. 

In the aftermath of the accident, the Witness approaches the Defendant. The Defendant immediately threatens the Witness by telling her that she would face some horrific consequence if she talked to the police. The Witness, concerned about her safety, goes home.

The police arrived at the Witness's house 24 hours later. As she answers the door, the police ask if she could provide her side of the story about the accident.

The Witness tells them the entire story, including how the Defendant threatened her. By making an out-of-court statement, the Witness has now become a Declarant to those statements. 

Fast forward to the trial. 

As the Plaintiff's lawyer, you are hoping to call the Witness to the stand. Unfortunately, she's unable to make it to trial (for whatever reason). In response, you call the officer that interviewed the Witness to get the Witness's statements introduced into evidence. 

The defense counsel objects to the statement as hearsay. If you respond by stating that these out-of-court statements by the Declarant (aka the Witness) satisfy the Excited Utterance exception, should the judge overrule the objection?

In a typical lawyer fashion, the answer is maybe.

We need to take things a step further. 

Reasons for the Excited Utterance exception to apply here.

At this point, the opposing counsel may argue that the facts do not suggest the Witness made her statements while under the stress of a "startling event or condition."

In fact, the opposing counsel is likely going to argue that 24 hours is plenty of time for the necessary stress to wear off and for the Witness to gain control of her emotions. 

In response, you should tell the court of any facts surrounding the Witness's statements that show the Witness was still under the stress of a "startling event or condition."

Let's assume that the following facts surrounding the Witness's statements are true:

• The police asked open-ended questions to the Witness so she could fully explain herself
• She didn't appear to be caring for herself over the last 24 hours
• Her house was in disarray
• She was still concerned about her safety
• She was trembling and sobbing while making her statement

Although 24 hours passed from the "startling event" to the Witness's statement, the above facts suggest that the Witness was still under the stress of the event. All of these facts indicate that the Witness's emotions and stress were in control at the time of the statement. 

As a result, you can make a very strong argument in support of the Excited Utterance exception.

Quick note about Motion in Limine

If you are the defense lawyer in the above scenario, then the last thing you want is to have the jury hear Witness's statements and subsequent arguments. 

Even if your hearsay objection prevails, the damage is already done. The jury heard the statements and may still hold them against your client. 

You can head off this issue by filing your Motion in Limine. 

Conclusion

The Excited Utterance exception applies when the declarant was still overpowered by their emotions at the time of statement. This makes the Excited Utterance exception dependent on the facts surrounding the statement itself. 

The more evidence you have showing that the declarant was still under the stress of a startling event, the more likely the Excited Utterance exception will apply.

If it turns out that the Excited Utterance exception does not apply, then don't panic. Law Venture's blog is a great resource for learning other hearsay exceptions!