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Excited Utterance – 803(2) Hearsay Exception

An excited utterance may be hearsay, but it’s admissible in court if the proper foundation has been laid.

Hearsay at trial - Rule 803(2)

Rule 803 – Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

See the code: Fed. R. Evid. 803 | Colorado R. Evid. 803

What does “excited utterance” mean in court?

Excited utterance is one of the common exceptions to the rule against hearsay in a court of law.

Excited utterances are spontaneous statements made by someone under the stress or excitement of an event. They are spoken as a reaction, almost without conscious thought.

803(2) excited utterances are admissible hearsay. If a person is shouting or exclaiming surprise or shock, they are reacting quickly without time to create a lie. The exception was recognized in common law and codified in the Federal Rules of Evidence. It is also found in state rules of evidence.

TL;DR on hearsay: Hearsay is any out of court statement offered in court to prove the truth of the matter asserted. Fed. R. Evid. 801; Colo. R. Evid. 801.

In court, witnesses are supposed to testify about what they know, not what they heard someone else say. But when the out of court statement has certain factors that make the statement more reliable (“indicias of reliability” in legalese), you may be able to use an exception to the rule against hearsay. 

How to prove something is an excited utterance

When you draft your direct examination questions, identify the answers that may draw a hearsay objection. If an answer falls under the excited utterance exception, make sure you build the foundation you need to use the exception.

With the proper foundation at the beginning, you are less likely to face an objection. If you do draw an objection, you can quickly respond “803(2) excited utterance” and give the court an opportunity to let you move on with your questioning.

How do you lay the foundation? Here are the main parts you need to show:

  1. A startling or unusual event happened. Usually, this event is at the heart of the case.
  2. The declarant had personal knowledge of the event. This could be as a participant or a witness to the event.
  3. The statement is spontaneous, almost without conscious thought. Answering questions and writing down statements are not usually spontaneous.
  4. Time hasn’t passed between the event and the statement, and the speaker was still in the rush of emotions from the event. The emotional state is one of extreme excitement, and the person’s unusual demeanor should be clear to witnesses. Statements made 30 minutes or more after the event rarely qualify.
  5. The statement is about the startling event. The statement can describe the current event or explain it, even if the statement also refers to past events.

Example in a Criminal Case

In a criminal case, prosecutors use the excited utterance exception to allow a police officer to retell a witness’s statement.

Officer Conrad responded to a crime scene minutes after a shooting. She saw a person sitting on the stretcher of an ambulance with blood on his shirt. The apparent victim Jose had tears streaming down his face. His arms were trembling, and his eyes bloodshot. Conrad asked Jose what happened. Jose responded in a shaky voice: “Ian started waiving a gun around, then he ran after me. He shot after me as I was running away.”

If the prosecutor uses Conrad to admit Jose’s statement, the facts in this paragraph may be used to show that the statement was an excited utterance. Jose is still shaken up by the shooting from minutes earlier. His statement is about the shooting and was not prompted by any back and forth questioning of Conrad. Further, Jose is trembling and is still under the stress of the shooting.
Of course, any hearsay statement must also be admissible under the Confrontation Clause. But that’s another issue for another day.

Excited Utterance vs Present Sense Impression

“Excited utterance” and “present sense impression” are both “spontaneous utterance” hearsay exceptions. The line between them can easily be blurred, especially in the high-pressure situation when your key witness is on the stand in a big trial. 

Excited utterances are trustworthy because the declarant is still under the stress of the event. So, stress is an important part to prove:

  • The statement is about a startling event or condition.
  • The declarant is under the stress or excitement of the event or condition.

Present sense impressions are trustworthy because they are made during the event. So, the timing is an important part to prove:

  • The statement describing the event has to be made during or immediately after the declarant perceived the event.

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