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FreeQuick bite 01.05.09 · Library 01 · Evidence Fundamentals & Hearsay

Excited utterance and the spontaneous statement

The spontaneous statement

Evid. Code § 1240 · FRE 803(2)

The exception runs on stress, not on elapsed time. Argue the declarant’s state, never the stopwatch.

THE EVENT UNDER THE STRESS OF EXCITEMENT Ninety seconds “He ran the light!” IN Twenty minutes Still shaking, to the officer THE FIGHT That evening Composed, to a lawyer OUT The test is not the clock. It is whether the capacity for reflection has come back. Which is why a statement four hours later can qualify, and one at four minutes can fail.

Scroll the diagram sideways →

Plate 01.05.09 The band, not the clock. The band is the declarant’s excitement. While it holds, the statement comes in; once reflection returns, it does not.
搂 The two texts, and where they part
ElementFederal 路 803(2)California 路 搂 1240
SubjectWhat the statement must be about.
Federal 路 803(2)
A statement relating to a startling event or condition
California 路 搂 1240
Must narrate, describe, or explain the act, condition or event. Narrower in form
PerceptionWhose senses.
Federal 路 803(2)
Not stated in the rule; supplied by the personal-knowledge requirement
California 路 搂 1240
Expressly an event perceived by the declarant
ConditionThe state the declarant is in.
Federal 路 803(2)
Made while under the stress of excitement that it caused
California 路 搂 1240
Made spontaneously while under the stress caused by that perception
In the courtroom
Neighboring exception§ 1241 · FRE 803(1)Do not confuse them. California’s contemporaneous statement is far narrower than the federal present sense impression: it must explain the declarant’s own conduct, made while engaged in it.
AvailabilityNeither rule requires the declarant to be unavailable, or to be a witness, or to be identified.
Application

The exception exists because a person in the grip of a startling event has not yet had the chance to construct anything. That is the entire rationale, and it is also the entire argument. Everything you say about admissibility should be about the declarant’s condition.

So the proof is sensory. Who heard it, and what did the declarant sound like. Was she crying, out of breath, bleeding, repeating herself. Was the statement volunteered or pulled out by a question, because a considered answer to a considered question is the opposite of spontaneous. Get that testimony from the listener before you ever offer the statement.

How it sounds

The foundation, through the listener“How long after the crash did she say that? What was she doing? How did she sound? Did anyone ask her a question first?”

The offer“Spontaneous statement, Your Honor. Section 1240. She was still under the stress of what she had just watched.”

Three traps
  • Arguing minutes.The other side will too, and the record will not support either of you. Argue the condition.
  • The answered question.A statement given in response to detailed questioning is the hardest version of this to win, because it looks like reflection.
  • Forgetting the second level.If the excited declarant is repeating what somebody else told her, the exception gets her statement in and leaves his exposed.
Where to go deeper
Quick bite 01.02.01Foundation

The three questions, on the listener.

CourseEvidence 101

The four hearsay groups in order.

Quick bite 01.05.01Party admissions

The other high-traffic exception.

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