708.3Excited Utterance [Rule 803(2)]
- A spontaneous statement relating to a startling event or condition, made while the declarant was still under the stress of excitement caused by it, is not barred by the hearsay rules.
- The stress of excitement caused by such an occurrence is usually short-lived, but it may persist for longer periods of time for children, or where intervening events have sustained the stress.
- Statements made in response to questions may still qualify under this exception, as long at the other requirements are met.
The Basic Rule
Rule 803(2) – Excited Utterance
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
G.S. 8C-803(2). The rationale for this exception is that the “startling” nature of the event or condition “may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.” G.S. 8C- 803(2), Official Commentary.
The excited utterance exception is similar to a present sense impression, discussed in the preceding entry, and the Official Commentary notes that “in considerable measure these two examples overlap,” but “the most significant practical difference will lie in the time lapse allowable between event and statement.” Id.
In one sense, excited utterance is narrower than present sense impression, because the window of time in which excited utterance applies is generally shorter. But in another sense, excited utterance is broader because it allows any statement “relating to” the event or condition, while present sense impression only allows statements that “describe or explain” the matter. See G.S. 8C-803(2), Official Commentary (excited utterance allows a “broader scope of subject matter coverage” than what is allowed under present sense impression). See, e.g., State v. Anthony, 354 N.C. 372 (2001) (victim’s statement, “take care of my boys,” after she was mortally wounded was admissible as an excited utterance).
Requirements for Admissibility
There are two key requirements for a statement to be admissible under the excited utterance exception: “there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.” State v. Smith, 315 N.C. 76 (1985).
Under the first requirement, the statement must relate to a “startling event or condition,” as viewed from the perspective of the declarant. G.S. 8C-803(2); State v. Smith, 315 N.C. 76 (1985). Common examples of a startling event or condition may include witnessing or being the victim of a crime, suffering an injury, receiving surprising information, or being confronted by law enforcement, such as during the execution of a search warrant or when being placed under arrest. See, e.g., State v. Boyd, 177 N.C. App. 165 (2006); State v. Wright, 151 N.C. App. 493 (2002); State v. Guice, 141 N.C. App. 177 (2001); State v. Pickens, 346 N.C. 628 (1997); State v. McLemore, 343 N.C. 240 (1996); State v. Littlejohn, 340 N.C. 750 (1995); State v. Beaver, 317 N.C. 643 (1986).
The second requirement is that the statement must have been made spontaneously, while the declarant was still under the “stress of excitement” caused by the startling event or condition, so that the declarant’s ability to engage in reflective thought before speaking was suspended. See, e.g., State v. Guice, 141 N.C. App. 177 (2001) (victim made statement after being dragged out of house by defendant and was so frightened she had trouble breathing); State v. Thomas, 119 N.C. App. 708 (1995) (declarant was crying and upset); State v. Murphy, 321 N.C. 72 (1987) (admitting declarant’s statement about rape, made 10 minutes after defendant left crime scene, and victim was “crying and extremely upset”). Cf. State v. Little, 191 N.C. App. 655 (2008) (witness’s statement made hours after the event, while seated in officer’s vehicle, was not an excited utterance).
By its nature, the “stress of excitement” required under this prong of the exception is unlikely to last for a long period of time. See G.S. 8C-803(2), Official Commentary (for an excited utterance, “the standard of measurement is the duration of the state of excitement”). However, there are no “pat answers” to exactly how long a state of excitement may persist, and “the character of the transaction or event will largely determine the significance of the time factor” Id.; see, e.g., State v. Allen, 162 N.C. App. 587 (2004), remanded on confrontation grounds, 358 N.C. 546 (2004), reversed on remand, 171 N.C. App. 71 (2005) (statements given 20 minutes after the crime were excited utterances – witnesses had been crying and were still upset at the time of the statement, and the later arrival of a Spanish-speaking officer was their first opportunity to tell what happened); State v. Coria, 131 N.C. App. 449 (1998) (admitting excited utterance of assault victim who fled her house and had to cross through a wooded ravine before encountering witness and telling him what happened – record did not indicate how long the delay was, but victim was still visibly upset, scared, and out of breath); State v. Kerley, 87 N.C. App. 240 (1987) (witness’s statement made 15 minutes after escaping from arson fire was an excited utterance – witness was still “very upset and excited”). Cf. State v. Safrit, 145 N.C. App. 541 (2001) (defendant’s statement to his sister 25 minutes after assault were not an excited utterance – defendant’s actions during that time period indicated a lack of spontaneity and an opportunity to reflect and manufacture his statement).
Document the Details
When the state seeks to introduce a statement as an excited utterance, the prosecutor should elicit information from the testifying witness to support the argument that the declarant was still “under the stress of excitement” caused by the “startling” event. In addition to explaining the startling nature of the event itself, the testifying witness should be asked to describe any other details or behaviors that show the declarant was not yet in a deliberative and reflective state of mind, such as the fact that the declarant was out of breath, scared, crying, sweaty, flustered, angry, or anxious.
Answers to Questions
The fact that the statement was made in response to a question (e.g., “What happened?” “That guy just robbed me!”) does not preclude the statement from qualifying as an excited utterance, as long as the circumstances surrounding the statement otherwise satisfy the requirements for applying the exception. See, e.g., In re J.S.B., 183 N.C. App. 192 (2007) (finding child’s responses to questions about abuse were admissible as exited utterances), quoting State v. Lowe, 154 N.C. App. 607 (2002) (“our case law is clear that statements made in response to a posed question do not necessarily lack spontaneity”); accord, State v. Wright, 151 N.C. App. 493 (2002); State v. Boczkowski, 130 N.C. App. 702 (1998).
Children as Declarants
Cases considering the length of delay between a startling event and a subsequent excited utterance have allowed greater leeway in cases involving children, because a child’s stress from a traumatic event such as witnessing a crime or experiencing an assault may still be present hours (or even days) later. See, e.g., State v. Perkins, 345 N.C. 254 (1997); State v. Burgess, 181 N.C. App. 27 (2007); State v. Lowe, 154 N.C. App. 607 (2002); State v. Rogers, 109 N.C. App. 491 (1993); State v. Thomas, 119 N.C. App. 708 (1995). But see State v. Carter, 216 N.C. App. 453 (2011), rev’d on other grounds, 366 N.C. 496 (2013) (child’s statements during a subsequent “play therapy” session was not an excited utterance as there was no evidence child was still upset or under stress at time of statement).
For a more detailed discussion of relevant hearsay exceptions and other evidentiary issues involving child witnesses, see Jessica Smith, “Evidence Issues in Criminal Cases Involving Child Victims and Child Witnesses,” N.C Superior Court Judges’ Benchbook, December 2008. See also Jessica Smith, “Child Victims and the Medical Diagnosis and Treatment Hearsay Exception,” N.C. Criminal Law Blog, April 30, 2012.