Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 5, #1©

Issue: Excited utterance exception and the constitutional right of confrontation.

The parties to a criminal case normally present their cases by the in-court testimony of live witnesses, under oath and subject to cross-examination. If the foundation is properly laid, hearsay may be admissible as well. In order for the prosecution to use hearsay, both evidentiary foundation and constitutional requirements may need to be satisfied.

One hearsay exception that has been examined of late is the "excited utterance" rule. Among the types of statements offered under this exception are communications to medical personnel, to a police officer arriving at a crime scene, and tapes of 911 phone calls. An excited utterance is one "made under stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication." People v Johnson __ NY2d __, 2003 WL 22989706 (2003). The assumption is that a person under the influence of the excitement caused by an external startling event will lack the effective capacity essential for fabrication, and that any utterance will be spontaneous and trustworthy. See People v Edwards, 47 NY2d 493, 419 NYS2d 45 (1979). "The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance." People v Brown, 70 NY2d 513, 518 , 522 NYS2d 837 (1987). See also, People v Cordero, 272 AD2d 924, 708 NYS2d 657 (4th Dept 2000); People v Harris, 276 AD2d 562, 714 NYS2d 244 (2d Dept 2000).

In People v Johnson, supra, the Court of Appeals considered the admissibility of an injured man's statement to the police while at the hospital. The statement was made a full hour after the event, in narrative form, and in response to police prompting. Medical records showed that he was awake, alert and oriented. The hospital statement was found by the trial court and Appellate Division to be an excited utterance. The Court of Appeals found that it failed to meet the foundational requirements. People v Johnson __ NY2d __, 2003 WL 22989706 (2003). The conviction in Johnson was affirmed by a divided court, the majority finding the error to be harmless, applying the constitutional harmless standard.

Judge Smith's dissent noted the importance of the right of confrontation and of cross-examination: "A Confrontation Clause violation may also constitute a violation of the right of due process and fair trial . . .." Hearsay may be where the evidence falls within a firmly rooted hearsay exception. However, with certain exceptions, the statements must be so trustworthy that little could be added by cross examination. In such a situation, evidence must be excluded absent a showing of particularized guarantee of trustworthiness. An excited utterance is a firmly rooted hearsay exception. However, the statement being offered must be so trustworthy that little could be added by cross-examination. Idaho v Wright, 497 US 805, 820, 110 S Ct 3139, 111 L Ed 2d 638 (1990). Judge Smith argued that the hearsay evidence had insufficient indications of trustworthiness; the error was not harmless beyond a reasonable doubt, according to the dissent.

The Second Circuit also recently weighed in with an opinion addressing the same issues: excited utterance, confrontation, and harmless error analysis. In a federal habeas corpus proceeding that reviewed a state conviction for aggravated assault, the federal appeals court found constitutional error to be not harmless, and granted the writ. "Ordinarily, a witness's account may be received only when given in open court, under oath, and subject to cross-examination." Brown v Keane, __ F3d __, 2004 WL 35993 (2d Cir 2004). In order for an out-of-court statement to be admitted for the truth of the matter asserted under this hearsay exception, the declarant's factual assertion must rest on personal knowledge. "Mere excitement,  however, not coupled with knowledge of the event described, adds nothing to reliability." Ibid.

In Brown v Keane, a 911 phone call from an anonymous source, containing statements regarding criminal activity, was found not to be an excited utterance. There was no showing that the declarant had personal knowledge of the information reported. Brown v Keane, __ F3d __, 2004 WL 35993 (2d Cir 2004). Where the defense disputes the introduction of such evidence, both the evidence objection on confrontation as well as evidentiary grounds should be raised. See People v Alvarado, 294 AD2d 155, 744 NYS2d 662 (1st Dept 2002).

But man, proud man,
Drest in a little brief authority,
Most ignorant of what he's most assur'd,
His glassy essence, like an angry ape,
Plays such fantastic tricks before high heaven
As make the angels weep.
Shakespeare, Measure for Measure

Dry conspiracy
A drug conspiracy case in which no drugs are recovered in the course of the investigation, as opposed to a "wet conspiracy." US v Walker, 160 F3d 1078 (6th Cir 1998); People v Samuels, 99 NY2d 20, 750 NYS2d 828 (2002).


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