In Washington domestic violence cases, the prosecution or defense may want to present evidence of what one of the involved parties said about the events. Hearsay evidence is generally not allowed, so such statements must fall within an exception to the hearsay rule to be admissible. A Washington appeals court recently considered whether a victim’s statement to a police officer was appropriately admitted into evidence.
The couple lived together in the woman’s home at the time of the incident. They got into an argument and the woman reached to take back a cell phone she had given the defendant. According to the court’s opinion, the defendant wrapped his arm around her neck and strangled her for about 10 seconds.
The woman called 911. When the deputies arrived, the woman described these events to one of them.
The defendant was charged with second degree assault by strangulation. He moved to exclude the woman’s statement to the deputy. The woman’s testimony at trial was consistent with her statement to the deputy. She also testified that she had called her mother after the incident and her mother came and got her children. The court allowed the deputy to testify. The defendant also testified and denied assaulting the woman.
The jury found the defendant guilty of fourth degree assault – domestic violence. The defendant appealed, arguing the trial court erred in allowing the deputy to testify about the woman’s statement. He argued the statements did not qualify as an “excited utterance” exception to hearsay.
Excited utterances are an exception to the hearsay exclusion rule because of the rationale that the declarant will not have an opportunity to misrepresent or consciously fabricate what happened while still under the stress from the event. To show that a hearsay statement was an excited utterance, the party must show there was a startling event or condition. The statement must have been made while the speaker was still under the stress of excitement from the event or condition. Finally, the statement must relate to the event or condition. Courts consider how much time passed between the event and the statement and the observable amount of stress of the declarant. If significant time has passed, the party will need to show that the declarant did not engage in reflective thought.
The woman spoke to the deputy about 20 to 30 minutes after the incident. The appeals court found this was not an “overly long” amount of time, so the prosecution did not have to show the woman had not engaged in reflective thought. When she spoke to the deputy, the woman was “hysterical” and had to stop several times to sob.
The defendant argued the woman was not still under the stress of the event. He argued she had left the basement where the event had occurred, called 911, and took care of her children. The appeals court disagreed, finding that the woman’s actions in calling 911 and her mother and putting the children in her mother’s care were actions to provide safety for herself and her children and not evidence of reflective thought. The appeals court found the woman was still within the stress of the event at the time of her statement and the statement was therefore admissible.
In some cases, a statement made to a police officer responding to a domestic violence call will be within the excited utterance exception, but that is not always the case. In this case, the police were called and arrived fairly quickly. However, when more time elapses between the event and the statement or if the speaker does not appear visibly distressed, a court may find that the excited utterance exception does not apply. If you are facing domestic violence charges, a Washington criminal defense attorney can help protect your rights. Call Blair & Kim, PLLC at (206) 622-6562 to discuss your case.
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