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Greater Lowell Bar Association

Excited Utterances

When critical eyewitnesses to alleged crimes refuse to testify at defendants’ trials (or fail to show up for the trial altogether), the Commonwealth can sometimes still prosecute the defendant. One weapon prosecutors use to obtain convictions is excited utterances. Ordinarily, an out-of-court statement is not admissible in court because it constitutes hearsay. An excited utterance is an exception to the hearsay rule. If a witness (declarant) is under the influence of an exciting event and makes statements about the exciting event shortly after it happens, the statements qualify as excited utterances and are not subject to the rule prohibiting hearsay. Excited utterances are found most often in domestic violence cases – the alleged victim calls 911 to report she is the victim of an assault and makes statements to the dispatcher and the responding police officers, often while visibly upset and crying.

The reason hearsay statements are usually excluded at trial is because there is no way to test the reliability of the statements by cross-examining the declarant. With an excited utterance, because the declarant theoretically did not have time to fabricate the statement, it is deemed to be inherently reliable. Until recently, the only question for trial judges was whether the statement qualified as an excited utterance. If so, it was admissible. However, in 2004, the United States Supreme Court created chaos in excited utterance jurisprudence by ruling that “testimonial” hearsay – including excited utterances – is inadmissible against criminal defendants unless defendants have previously been given an opportunity to cross-examine the declarant (for example, at a pretrial hearing). The problem with the Supreme Court’s decision is it did not clearly define “testimonial” hearsay.

Are excited utterances “testimonial?” As with most legal questions, the answer is, “it depends.” The Supreme Court said in a later case that statements are nontestimonial when they are made to enable police officers to address an ongoing emergency. Statements are testimonial when the emergency has passed and the declarant is attempting to assist a police investigation.

The Massachusetts Supreme Judicial Court has addressed the admissibility of excited utterances in criminal cases several times since 2004. The SJC has concluded there are two types of testimonial statements: testimonial per se and testimonial in fact.

Testimonial per se statements include statements made in a deposition, an affidavit, or a written statement. They also include the testimony of witnesses at preliminary hearings or before the grand jury. Finally, they include statements witnesses make in response to law enforcement agents’ questions unless the questions were intended to secure a volatile crime scene or establish the need for (or provide) medical care.

Statements are testimonial in fact if a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.

All testimonial statements, whether per se or in fact, are inadmissible at criminal trials unless the defendant was previously afforded the opportunity to cross-examine the declarant.

In Massachusetts, alleged victims of domestic violence often refuse to testify at trial. If the Commonwealth asserts an alleged victim made an admissible excited utterance, the judge will hold a hearing prior to the trial to determine: (1) if the statement qualifies as an excited utterance; and (2) if the statement is nontestimonial. The statement will be admissible only if it qualifies as a nontestimonial excited utterance. Prosecutors always argue the statements made by the alleged victim were in furtherance of securing a volatile crime scene while defense attorneys always argue the statements were in response to law enforcement officers’ investigatory questions. The judge’s ruling on the admissibility of excited utterances is crucial, because if the statements are inadmissible, the case will usually be dismissed.

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