Excited Utterances
The excited utterance exception lets in a hearsay statement that relates to a startling event or condition, made while the declarant was still under the stress of excitement t
12. Admissibility of Excited Utterances
A hearsay statement is admissible if it is one “relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Fed. R. Evid. 803(2).
- This exception differs from the one for present-sense impressions.
- This exception admits opinions and analyses (not just descriptions) if they meet the “excitement” condition.
- Excited utterances need not be made while perceiving the exciting event or immediately thereafter, as long as the declarant was still excited by the event or condition.
- Statements are admissible as excited utterances only if the declarant was genuinely excited when the statement was made.
- This is a subjective test focused on the declarant’s own state of excitement.
- Excitement may be shown through evidence of the inciting event, the appearance or manner of the declarant, the words of the utterance, and any other relevant information.
The excited utterance exception admits a hearsay statement relating to a startling event, made while the declarant was still under the stress of excitement the event caused. The controlling test is the declarant's own state.
The excited utterance exception lets in a hearsay statement that relates to a startling event or condition, made while the declarant was still under the stress of excitement that the event caused. Notice three things, because each one is a place the exam likes to test.
- 1Content: this exception is more generous than the one for present sense impressions, which admits only a description or explanation. An excited utterance admits opinions and analyses too, as long as the excitement condition is satisfied. So a statement like "that other driver was driving like a maniac" can come in even though it is an opinion that would fail as a present sense impression.
- 2Timing: an excited utterance does not have to be contemporaneous or come immediately after the event, and the declarant need not even still be perceiving the event. It qualifies as long as the declarant was still excited when speaking, even if some time has passed. Delay alone does not defeat the exception.
- 3The test is subjective and focused on the declarant's own state. The statement is admissible only if the declarant was genuinely excited at the moment of speaking.
The court looks at the inciting event, the declarant's appearance and manner, the words of the utterance, and any other relevant information to decide whether the declarant was actually under the stress of excitement. If the declarant had calmed down, reflected, or grown composed before speaking, the exception fails even though the event was startling and even though little time passed.
startling event, still under the stress.
The engine is the declarant's own excitement at the moment of speaking, a subjective test.
Two facts that look fatal but are not: "it was an opinion, not a description" (opinions are fine here, unlike a present sense impression) and "some time had passed" (delay is fine if the declarant was still excited).
The fact that actually kills it: the declarant had calmed down, composed themselves, or reflected.
a statement about a startling event, made while the declarant was still genuinely excited, comes in even if it is an opinion and even if it was delayed; if the declarant was calm, it is out.
A bystander watches two cars collide at a busy intersection. Roughly twenty minutes later, still shaking and breathing hard, the bystander grabs a police officer's arm and blurts, "The blue car ran the red light, that driver was completely reckless." The statement is offered to prove the blue car ran the light.
Suppose that by the time the bystander spoke, an hour had passed, the bystander was calm and composed, and was simply answering questions in a measured way. Now the declarant was not under the stress of excitement, the subjective test fails, and the same words do not qualify as an excited utterance even though the crash was startling.
An option imports a present sense impression requirement, either that the statement must describe rather than opine, or that it must be made while perceiving the event or immediately after.
This exception admits opinions and analyses and does not require contemporaneity; the only question is whether the declarant was still under the stress of excitement.An option phrases the excitement test as objective, asking whether a reasonable person would still have been excited rather than asking about this declarant's own state.
The test is subjective and focused on the declarant's genuine excitement at the moment the statement was made.An option treats the passage of time (twenty minutes, forty minutes, a day) or a short interval as automatically deciding admissibility.
Delay alone is not fatal and speed alone is not sufficient; admissibility turns on whether the declarant was actually under the stress of excitement when speaking.A "Yes" answer keyed on the event being startling, the statement being spontaneous, or the declarant perceiving the event firsthand, rather than on the declarant being genuinely excited when speaking.
Name the operative reason: the declarant was still under the stress of excitement. A startling event, spontaneity, and firsthand perception are not the controlling element.the stem hands you an out-of-court statement about something startling (a crash, an attack, a fire, a fall, a sudden discovery) and then loads the facts with one of three tells.
Tell one: the statement is an opinion or characterization ("he was driving like a maniac," "that was reckless") rather than a flat description, which looks like it should fail but does not, because this exception admits opinions.
Tell two: some time has passed before the declarant spoke, which looks like it should fail but does not, as long as the declarant was still excited.
Tell three, the dispositive one: the facts describe the declarant's state when speaking, either still shaking, crying, frantic (still excited, in) or calm, composed, collected, answering questions evenly (not excited, out).
The instant you spot a startling-event statement, ignore the bait about opinions and delay and run the one real check: was this declarant genuinely, subjectively still under the stress of excitement when the words came out?
If yes, it comes in; if the declarant had calmed down, it stays out.
A bystander was standing on a sidewalk when a delivery van suddenly jumped the curb and crashed into a storefront a few feet away. Seconds later, still wide-eyed and trembling, the bystander cried out to a passerby that the van had come barreling through the crosswalk against the light. At a later trial arising from the crash, a party offered the bystander's statement to prove the van entered against the light.
Is the statement admissible as an excited utterance?
A passenger was riding in a car when another vehicle clipped it and sped off, sending the car spinning before it stopped. Still frantic and short of breath moments later, the passenger turned to the driver and exclaimed that the other driver had been weaving recklessly and driving like a complete lunatic the whole way down the road. At a later trial, a party offered the passenger's statement to show the other driver had been driving recklessly. The opposing party objected that the statement was an opinion rather than a description of what the passenger saw.
May the statement be admitted under the excited utterance exception?
A homeowner came home to find the house ransacked and a window smashed. About forty minutes passed while the homeowner waited for help, and throughout that time the homeowner remained visibly shaken, pacing and crying. When a neighbor arrived, the homeowner, still in that agitated state, blurted out a detailed account of the scene and said it had to be the man who had been lurking in the yard the day before. At a later trial, a party offered the homeowner's statement.
Is the statement admissible as an excited utterance despite the time that passed?
A witness saw a violent altercation outside a bar in which one man struck another with a bottle. The witness left, went home, and slept. The next morning, calm and composed over coffee, the witness telephoned a friend and described the fight in a measured, matter-of-fact way, stating which man had thrown the first punch. At a later trial, a party offered the witness's telephone statement to prove who started the fight.
Is the statement admissible as an excited utterance?
A caller dialed an emergency line just after a small kitchen fire that had startled everyone in the apartment. By the time the caller connected, the fire was already out and the caller spoke in a deliberate, even tone, calmly answering the dispatcher's questions and explaining in a composed way that a neighbor's faulty space heater had sparked the blaze. At a later trial, a party offered the caller's statement to prove the space heater started the fire. A different witness testified that the caller had appeared completely settled and unbothered during the call.
Should the statement be admitted as an excited utterance?