See also: ADMISSIONS; DYING DECLARATIONS; PRESENT SENSE IMPRESSIONS
STATEMENTS AGAINST INTEREST.

§ 1.  Generally

An exception to the hearsay rule exists for spontaneous statements made contemporaneously with and caused by an exciting utterance.{footnote}FRE 803(2).
Cal. Evid. Code § 1240.  {/footnote}  The declarant need not be unavailable at trial.  The Supreme Court of the United States explained the rationale of this exception in Idaho v. Wright:{footnote}497 U.S. ___ (1990){/footnote}

The basis for the ‘excited utterance’ exception * * * is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous.{footnote}Id. at ___.{/footnote}

§ 2.  Occurrences Satisfying the Exception

Whether a particular occurrence is sufficiently exciting or startling to satisfy this hearsay exception is a subjective issue–the court must consider its effect upon the declarant.{footnote} United States v. Napier, 518 F2d 316 (9th Cir), cert denied, 423 U.S. 895 (1975) (victim’s declaration, "[h]e killed me, he killed me," upon viewing photograph of defendant in newspaper weeks after attack).
State v. Carlson, 808 P.2d 1002, 1011 (Ore. 1991) (applying Ore. Evid. C. 803(2).

Louisell & Mueller at 495, § 439; Rice, Evidence: Common Law and Federal Rules of Evidence 517 (2d ed 1990);
{/footnote}

§ 3.  Independent Evidence of the Occurrence

An allegedly excited utterance is not sufficient by itself to establish that an exciting occurrence actually took place.  There must be some independent corroboration that the occurrence took place in order for this exception to be satisfied.

§ 4.  What Is "Contemporaneous"?

To be admissible under this exception, a statement must have been made during or immediately after the exciting occurrence to which it relates, and must not be the product of deliberation.{footnote}Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995); Swearinger v. Klinger, 91 Ill. App. 2d 251, 234 N.E.2d 60 (3d Dist. 1968) (statement made by motorist immediately after accident inadmissible because during conversation with witness).{/footnote}  Under exceptional circumstances, however, statements made hours or even days after an occurrence will be admitted,{footnote}United States v. Napier, 518 F2d 316 (9th Cir), cert denied, 423 U.S. 895 (1975) (victim’s declaration, after being released from seven weeks in the hospital, "[h]e killed me, he killed me," upon viewing photograph of defendant in newspaper weeks after attack).
Mangan v. F.C. Pilgrim & Co., 336 N.E.2d 374 (Ill. Ct. App. 1975) (statement made by elderly woman two hours after fall); Wilson v. State, 26 A.2d 770, 772 (Md. 1942) (admissibility determined “not by closeness in time, but by [causal] connection"); State v. Martineau, 324 A.2d 718 (N.H. 1974); Johnson v. Ohls, 457 P.2d 194 (Wash. 1969) (one hour after injury to infant).
C. McCORMICK, § 297, at 706.
Check McCundy v. Greyhound Corp., 346 F.2d 224 (3d Cir. 1965).{/footnote} such as where the statement is made immediately after the declarant emerges from a period of unconsciousness.{footnote}Cestero v. Ferrara, 273 A.2d 761 (N.J. 1971) (made upon regaining consciousness after undetermined amount of time).

See also Pau v. Yosemite Park and Curry Co., 928 F.2d 880, appeal after remand 39 F.3d 1187 (9th Cir. 1991) (bicyclist’s statement "the brakes failed" after emerging from coma for two days might fall within exception if made under stress of excitement caused by accident).{/footnote}  In cases of child abuse, statements of the child may be admitted long after the alleged incident of abuse.  See CHILDREN § 2(a)(1).  The Excited Utterance Exception.

§ 5.  Content of Utterance

The excited utterance must relate to the exciting occurrence.{footnote}FRE 803(2); Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995); Anders v. Nash, 180 S.E.2d 878 (S.C. 1971).  Check Murphy Auto Parts Co. v. Ball, 249 F.2d 508 (D.C. Cir. 1958).  {/footnote}  Statements of opinion are held by some courts to be outside this exception, especially where they are as to the ultimate question of responsibility for an event.{footnote}Annot., 53 A.L.R. 2d 1287.
Check Montesi v. State, 417 S.W.2d 554 (Tenn. 1967) .{/footnote}  A statement may be self-serving and be admitted under his exception.

§ 6.  Type of Declarant

The declarant need not have been a competent witness at the time of the utterance,{footnote}Moore v. State, 338 A.2d 344, 347 (Md. Ct. App. 1975).
6 J. Wigmore, § 1751.
{/footnote} but it is required that they had personal knowledge.{footnote}Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995); Carney v. Pennsylvania R.R., 240 A.2d 71 (Pa. 1968); Annot., 83 ALR 2d 1368.

{/footnote}  It is also unnecessary to establish the declarant’s identity in order to render the utterance admissible.   See also CHILDREN–Child Abuse.

Bibliography