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Excited Utterances May Be Admissible in Washington Even If Partly Untrue

Many people are aware of the general rule that hearsay is inadmissible.  Washington criminal defense attorneys know that a court may admit hearsay evidence if it meets one of a number of exceptions to that general rule.  A Washington appeals court recently reviewed a case involving the excited utterance exception to the hearsay rule.

phone receiverThe defendant’s girlfriend had been drinking during the evening of the incident.  She left the home for a while after an argument, but she subsequently returned.  About 45 minutes later, she called her 16-year-old daughter.  According to the daughter, the woman was crying and hysterical and spoke at a high volume.  The daughter testified she had trouble understanding her mother.  The woman described an assault and told her daughter she had been shot.

The girl gave the phone to her father.  The woman’s ex-husband testified that she was hysterical, crying, and very scared.  She described an assault and told him the defendant had shot her.  The ex-husband called the police.

The woman was still hysterical when the police arrived and had difficulty answering them.  She gave the police similar details of the assault.

The defendant was ultimately charged with assault in the second degree with a firearm enhancement, two counts of unlawful possession of a firearm in the first degree, counts of tampering with a witness, and nine counts of violation of a protection order.

At trial, the woman testified that she did not remember what she said to her daughter.  She stated, “I guess I had told her some things that weren’t true.”  She said she remembered “bits and pieces” and her ex-husband screaming and telling her to calm down.

The defendant objected to the introduction at trial of the statements the woman made to her daughter and ex-husband.  He argued too much time passed between the alleged assault and the statements for them to qualify as excited utterances.  The trial court admitted the statements, finding the time alone did not disqualify them as excited utterances.

The defendant was found guilty of all of the charges and sentenced to 120 months’ total confinement.  He appealed.

The appeals court considered whether the statements were admissible.  Hearsay is a statement not made under testimony at the trial or hearing that is offered to prove the truth of the matter asserted.  One of the exceptions to the general rule that hearsay is not admissible is an “excited utterance.”   There are three elements that must be satisfied for a statement to qualify as an excited utterance.  First, there must have been a startling event or condition.  Second, the statement must be made while the person is still under the stress of the startling event or condition.  Finally, the statement must be related to the startling event or condition.  The court may consider the spontaneity of the statement, how much time passed between the event and the statement, the person’s emotional state, and the opportunity to reflect or fabricate a story.

The appeals court found the argument between the defendant and the woman was a startling event.  She was still under the stress of the event because she was upset, crying, and loud when she made the statements.  The statements were related to the event because they were her account of the argument and altercation.  The appeals court found the statements met the elements of excited utterances, and the trial court therefore did not abuse its discretion in admitting them.

The defendant also argued the statements should not have been admitted because the woman acknowledged fabricating portions of the statements.  The appeals court, however, rejected the characterization of the woman’s testimony as fabricated.  The record did not show that she acknowledged fabricating part of her statements.  She had testified that she did not remember making the statements, but some of the things she was told she said were false.  The appeals court noted that there was no evidence in the record that she had consciously fabricated the statements.  The appeals court found no abuse of discretion in the admission of the statements.

The defendant also argued the statements should not have been admitted due to the passage of time between the alleged assault and the statements.  The appeals court noted that passage of time is just one factor to be considered.  Time alone will not preclude the admission of a statement if the person is still under the stress of the event.  The trial court found that the woman was still under the stress of the event and still upset when she made the statements.  Time had not alleviated the stress, so the appeals court found the trial court had not abused its discretion.

This case is interesting because it shows a statement may be admitted as an excited utterance even if it is partially untrue.  Showing a statement is not true may not be sufficient to get it excluded if it otherwise qualifies as an excited utterance.  A defendant may need to show intentional fabrication to get the statement excluded.

If you are facing criminal charges, a skilled Washington criminal defense attorney can help you.  Contact Blair & Kim, PLLC by phone at (206) 622-6562 or through our website to discuss your case.

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Image: FreeImages.com / Steve Carboni