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  General Practice, Solo & Small Firm DivisionMagazine

 
VOLUME 19, NUMBER 2 MARCH 2002

TRIAL PRACTICE

Excited Utterances and Family Violence

By Stephen A. Saltzburg

Federal Rule of Evidence 803(2) and Minnesota Rule of Evidence 803(2) contain identical language. They create a well-known, common law hearsay exception for excited utterances. This article considers the role of the trial judge in determining whether a statement qualifies as an excited utterance in the context of domestic violence cases.
Are there principles that can guide judges in reaching a fair resolution of excited utterance issues in these cases? The judge is a fact finder under Rule 104(a) if there is a dispute about facts when a statement is offered as an excited utterance. The fact finding role of the judge is easily confused, however. When the judge sits as a fact finder for purposes of deciding whether or not a statement is an excited utterance, the judge is not expected to determine whether the excited statement is true or false. That's the purpose of a trial.
An example should make the line between proper and improper judicial roles clear. Assume a police officer testifies at a pretrial evidentiary hearing that, upon his arrival at the scene of a 911 call, a woman came to the door trembling and crying and said that her husband had just beat her. At the same hearing, the woman testifies that when the officer arrived she was calm but angry at her husband and made up a story. The judge must decide under Rule 104(a) whether to believe the officer or the wife on one critical fact: Was the wife trembling and crying or was she calm? If the judge believes the officer, the judge probably will find that the wife had made an excited statement admissible under Rule 803(2). Although the statement is admissible, at trial the trier of fact might accept the wife's testimony and acquit the defendant. The decision whether to believe an excited utterance is not the Rule 104(a) decision; the decision under Rule 104(a) is whether an excited statement was made.
The proponent of an excited utterance must show by a preponderance of the evidence that it is an excited utterance. The standard burden of persuasion on a Rule 104(a) issue is the preponderance of the evidence. The beyond-a-reasonable-doubt standard is almost never imposed, even in criminal cases.
The fact that the unavailability of the declarant is immaterial sends a powerful message about excited utterances. Excited utterances, unlike some hearsay exceptions, do not require a showing of unavailability on the part of the declarant, because drafters of evidence rules recognize that excited utterances may be better evidence than trial testimony. Statements made right after an event, before there is time to fabricate or contemplate, may benefit from the spontaneous outpouring of truth before the declarant has time to decide how much truth to tell. There is no rule in the law of evidence or in substantive criminal law to suggest that recanted trial testimony should be preferable to excited utterances. Both excited utterances and recanted testimony stand equal in their admissibility and potential value.
Tape-recorded statements may provide independent evidence of excitement. Because law enforcement officers can anticipate disputes about whether a person was really excited when a statement was made, a tape recording can provide independent evidence of the manner in which a declarant spoke, the tone of voice, and even the level of spontaneity. A judge can benefit immensely by being able to hear the declarant make the statement.
Corroborative evidence is helpful in deciding whether there truly was a startling event. In domestic dispute cases, evidence of bruises helps to corroborate a claim of an attack. Evidence that property was damaged may help to corroborate the claim of a fight.
It can be difficult to establish whether the stress of an exciting event is a continuing factor. There is no magic cutoff for an excited utterance. The more startling an event, the longer it may take for the stress to wear off. The burden, remember, is on the proponent of a statement to show that it was made while the stress of excitement continued. Evidence that the declarant was crying, shaking, or screaming may be useful in showing stress when a statement was made. That a statement was made in response to a police inquiry should not disqualify it, because police usually try to speak to assault victims and witnesses. The fact that a conversation takes place does not mean that victims or declarants are not excited. However, the longer the break between an exciting event and a statement, the more skeptical a court is likely to be about whether the stress of the event caused the statement. Any intervening event that might provide an opportunity for reflection, counseling, or consulting is likely to cast doubt on the statement's bona fides as an excited utterance.
Although questions are not disqualifying, evasive answers or inconsistent statements may suggest that the stress of excitement has given way to contemplative answers. A witness who picks and chooses the information to provide to the police appears to be making conscious and contemplative statements, not excited ones. Similarly, a witness who says inconsistent things as questions are asked may cast doubt on whether excitement continues.
Statements must be examined in light of all circumstances. There is no time period, corroboration, or other test that will provide clear notice in cases of alleged family violence to prosecutors and defense counsel as to statements that will qualify as excited utterances and those that will not.
Not all statements to police following 911 or similar calls will be excited utterances. In some domestic disputes, the people are angry at each other, yelling, pushing and pulling, and unable to resolve the dispute. The fact that one of them calls the police does not mean that, when the police arrive, statements made by the caller will automatically be excited utterances. There is a fine line between a statement made out of anger and one that is the product of a startling event. If an argument is two-sided and both individuals have been equal participants, nothing may qualify as a startling event. One participant's claim that the other engaged in some physical conduct may be countered with a denial by the other, or by a claim that the complaining party initiated the physical conduct. In such cases, neither party's statements may qualify as excited utterances. A judge must find one party able to prove by a preponderance of the evidence that a startling event produced a statement. Physical evidence may be sufficient to enable the proponent of a statement to prove that something happened that would qualify as a startling event. But without convincing physical evidence, it is doubtful that a proponent of a statement can prove it is an excited utterance simply by showing that it was made as part of or following an argument.
It is also possible that both parties to an event may make excited utterances. If a couple has a fight in which both parties strike and grab the other, the fight may be a startling event. If so, statements by both parties may be admissible, even though the statements contradict each other. This possibility defines the role of the trial judge: If the two parties to a dispute are excited, statements by both may be admissible. This does not mean that both will be believed. Admissibility involves the decision whether a statement qualifies as an excited utterance. Deciding whether to credit an excited utterance is a task entrusted to the trier of fact at trial.

Stephen A. Saltzburg is the Howery Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University Law School in Washington, D.C.

This article is an abridged and edited version of one that originally appeared on page 39 of Criminal Justice, Winter 2001 (15:4).