The excited utterance exception to the rule against hearsay “rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to consider ancient dogmas.” — Judge Posner, 7th Cir.
According to ancient dogmas, the stress of a startling event so completely paralyzes “the reflective capacity” as to make the person incapable of fibbing about it immediately afterwards. The judicial habit is accordingly to find that “impulsive and unreflecting responses possess a high degree of trustworthiness,” and are therefore admissible as proof of the truth of the matter uttered.
Thus, courts will consider an exclamation such as, “By Jove! I just saw Killer Joe shoot Big Dog Smith, with intent to cause death or serious physical injury, using a firearm possessed outside his home or place of business!” to be so highly trustworthy that the utterer need not even testify, let alone be cross-examined. His impulsive and unreflecting response may be proffered through anyone who heard it, and the jury may be assured that since it’s excited, it must be true.
Courts have not only been incurious about whether the excited utterance exception makes any sense, they’ve made it as elastic as a bungee cord depending on how sympathetic they are to the “victim.” Accusations of sexual misconduct, no matter how long ago the alleged event, are frequently admitted as excited utterances. When a child tells her mother that Uncle Harvey touched her poopoo last summer, and the mother calls the cops, who call the sexual assault detective, who calls a doctor, a court may apply the exception to permit all of them to testify to what the child told them. The question-begging rationale is that a sex offense ipso facto wipes out the reflective capacity for as long as it takes to get around to telling someone.
It should go without saying that the excited utterer has to have seen the startling event. But in a recent case of a street shooting, the defendant was convicted based on a faintly heard, unidentified voice in the background of a 911 call saying, “Yo, it was Twanek, man!” With typical prosecutorial logic, the People argued that the owner of the voice must have seen Twanek do the shooting, or else he wouldn’t have made the statement. The First Department duly swallowed this and found it admissible as an excited utterance.
The Court of Appeals reversed. The majority noted that, considering the number of people on the street at the time, there was no way of knowing whether this unknown voice had seen the shooter or was just repeating a crowd rumor.
Judge Jenny Rivera added that the excited utterance exception should be scrapped in the light of “advances in psychology and neuroscience.” Scrupulously substituting “they” as a singular pronoun for “he” when quoting from other decisions, so as not to exclude any possible gender, she concluded in sum and substance that when a person is under stress, they is perfectly capable of thinking up a lie, or at least getting the facts wrong. Unfortunately, since Twanek’s lawyers had neglected to make this argument, she was forestalled from reversing “on the basis that the exception should be rejected whole cloth.”
So next time the People claim that an out-of-court statement by a non-testifying witness is admissible as an excited utterance, be sure to tell the judge to abandon their habitual incuriosity and reluctance to reconsider ancient dogmas. And if they responds with the usual enthusiasm judges have for advances in psychology and neuroscience helpful to criminal defendants, tell them Judge Jenny has promised a reversal.