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THE HEARSAY RULE – And Its Excited Utterance Exception

June 15th, 1998

MICHIGAN LAWYERS WEEKLY

By: Imhoff & Associates, P.C. Criminal Defense Attorney

Attorneys often grapple with the evidentiary issues of the exceptions to the hearsay rule. In the fast pace and pressure of a trial, attorneys need to know the limits of the hearsay exceptions.

What is Hearsay?

Hearsay is an out-of-court statement, made by one other than the declarant, while testifying at a trial or hearing, offered as evidence to prove the truth of the matter asserted.

Michigan law recognizes exceptions to the hearsay rule which are admissible at the trial or hearing. One such exception frequently encountered by attorneys is the excited utterance exception.

An excited utterance is a statement relating to a startling event or condition made while under the stress of excitement caused by the event or condition.

Michigan Requirements for Hearsay

Michigan courts require that three criteria be met in order for a statement to be considered an excited utterance. The statement must: 1) arise out of a startling occasion; 2) be made before there is time to contrive and misrepresent and 3) relate to the circumstances of the startling occasion. The purpose of these criteria is to ensure that the statement is not the result of deliberate reflection by the declarant.

The amount of time that a person may remain under the stress of the event depends entirely on the particular situation and the individual’s reaction to the event. Unfortunately, there is not fixed time frame for determining whether a declaration comes within the excited utterance exception.

The crucial factor is the ability of the victim to fabricate the story. A statement made contemporaneously with, or immediately after, a startling event provides a higher degree of reliability as an excited utterance. Alternatively, a statement given in response to a question, or one given some time after the said event has occurred, provides a lower degree of reliability as an excited utterance.

Physical Factors Determining Hearsay

Physical factors, such as shock, unconsciousness or pain, are examined by courts in determining if the statement was made while the declarant was still under the excitement of the event. Courts closely examine self-serving statements, as well as statements made in response to an inquiry, as both are likely to elicit a response made only after reflection.

Several Michigan Supreme Court and Court of Appeals cases have offered some guidance on how to treat the factual situation where a statement is elicited following an inquiry or leading question to the declarant concerning admissibility as an excited utterance.

The cases agree that a statement given in response to a question is not automatically excluded as being spontaneous. It is however considered as a factor militating against it.

Another factor courts consider is whether the question requires an answer beyond a simple “yes” or “no”. Such a question naturally requires some degree of reflection by the declarant. Thus, such answer is more prone to be excluded as an excited utterance.

Though few Michigan courts have clarified the extent to which leading questions bear on the admissibility of the elicited response, current case law considers whether a response to a question has to originate in the mind of the declarant. The question then becomes: Was the response spontaneous and unreflecting, and made before there was time to misrepresent?

In regard to leading questions, it is accepted that such answers should be weighed even more heavily against admissibility. Responses to leading questions are considered in conjunction with the condition of the declarant. Thus, a statement by a superficially injured person in response to a leading question is more likely to be invalidated than one by a more seriously injured person.

Unfortunately, there are no set guidelines regarding how far a witness may lead a declarant without destroying the inherent reliability and spontaneity of the statement.

In order to have a more definite standard to follow, the Court of Appeals or Supreme Court of Michigan will hopefully address the issue.


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