What’s an Excited Utterance?
“As with much of the folk psychology of evidence,
it is difficult to take this rationale entirely seriously”
- Lust v. Sealy, 383 F.3d 580 (7th Cir. 2004) (Posner, J.)
As we’ve written before, the Federal Rules of Evidence are younger than many lawyers currently practicing law. While they’ve been supplemented and tweaked since their 1975 adoption, most of the rules were drafted together by a single committee of attorneys and academics in the late 1960s. But while the rules contain hints of the modern, rational thinking that was building skyscrapers and sending men to the moon, there was an atavistic character to the project, and many of the rules seem like something copied down from the annals of the common law without an awful lot of serious study.
Perhaps the best example an “ancient but dubious” evidence rule is the excited utterance doctrine that appears in Fed. R. Evid. R. 803(2). While under normal circumstances the hearsay rule prohibits a witness from testifying as to what another person told them outside of court, there is an exception for so called “excited utterances:”
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
…
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
In essence, if a person is sufficiently freaked out by something, another witness can testify about what the freaked-out person said, provided that the freaked-out person was talking specifically about the thing that freaked them out. Or as the late Irving Younger put it:
How do you recognize an excited utterance? I can tell you. If hearsay is offered and it begins with ‘My God,’ and ends with an exclamation point, it is an excited utterance [1]
While this is a broadly correct statement of principle, the precise legal formulation of the test varies somewhat from court to court. In the First, Seventh, and Tenth Circuits, a party seeking to invoke the exception must show “(1) a startling event, (2) the declarant made the statement under the stress of the event's excitement, and (3) a nexus exists between the content of the statement and the event.” [2]
In contrast, the Fourth Circuit has only two elements, that the speaker “(1) have experienced a startling event or condition and (2) reacted while under the stress or excitement of that event and not from reflection and fabrication.” [3]
The Sixth Circuit also uses a three-part test (but a somewhat different one), requiring a proponent to show that “(1) the event was startling enough to cause nervous excitement; (2) the statement was made before there is time to contrive or misrepresent; and (3) the statement was made while the person is under the stress of the excitement caused by the event.” [4]
And the Eighth Circuit, taking a “more is more” approach considers a six non-exclusive factors, including “(1) the lapse of time between the startling event and the statement, (2) whether the statement was made in response to an inquiry, (3) the age of the declarant, (4) the physical and mental condition of the declarant, (5) the characteristics of the event, and (6) the subject matter of the statement.” [5]
How are these tests substantively different? One key issue is the temporal separation between the “startling event” and the statement. Some courts require a fairly tight connection between the two, primarily admitting statements of the “Hey, did you see that?” variety. Others allow for statements made some time thereafter, provided that a witness remains sufficiently “excited.” This is even more striking with respect to some state law formulations of the rule, under which statements made even days or weeks after a startling event have been admitted as “excited utterances.” [6] Indeed, while the rule refers to an “utterance,” courts have even admitted written documents prepared by an excited individual, allowing for an “excited email” exception to the hearsay rule. [7]
But why exactly do we allow excited utterances? And should we? The excited utterance exception is approximately as old as the hearsay prohibition itself and examples can be found dating back to the early 1700s. Dean Wigmore, a notable proponent of the doctrine, characterized the rationale as follows:
[U]nder certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken to be particularly trustworthy… [8]
While Wigmore was not always the most careful historian, it certainly appears to have been the case that judges in the 18th and 19th century genuinely believed that witnesses who were suffering “nervous shock” from a wild event were somehow physically incapable of lying.
But does this actually make sense? There is good reason to question whether this “ancient wisdom” is really “ancient folly.” Many judges operating in continent Europe during the medieval period also believed that witnesses could not lie under torture. And as Professor Williams from Florida Coastal University has argued, the same individuals who believed that an “excited” person could not lie also believed (based on the same logic of rational impairment that Wigmore repeats) that a drunken individual could not lie. [9] Yet we do not have a “drunken utterance” rule of evidence.
And everyday experience provides many examples of “excited” statements that are not necessarily honest. As any parent who has caught a child red-handed in misbehaver will tell you, often the first instinct of a startled individual is to lie, sometimes in a comically implausible fashion (“my baby brother ate the cookies!”).
Indeed, it is not clear whether the courts continuing to apply the rule genuinely believe in the inherent credibility of excited statements. To the contrary, courts have admitted excited utterances into evidence even while acknowledging that at least part of the statement is untrue.
For example, in People v. Simpson, [10] the victim of a sexual assault called 911 shortly after the incident, while her friends were chasing away the assailant. The government sought to introduce her 911 call during which she claimed to have been threatened with a gun. In testimony, the victim admitted that no gun had been used, and acknowledged lying to the operator in hopes that the police would respond faster if a firearm was involved. The government sought to introduce the statement as an excited utterance. On review, a divided panel of New York’s Appellate Division upheld the introduction of the 911 call, even though the admitted lie established that the victim “did not lack the reflective capacity essential for fabrication.” [11]
And even if an “excited” individual were somehow incapable of telling lies, that would not necessarily eliminate the problem inherent in allowing hearsay testimony. Hearsay is generally prohibited because it cannot be effectively cross-examined. We don’t allow Abe to testify that Bob told him something because we want any testimony that a jury gets from Bob to come from Bob directly. This is partially so that Bob’s truthfulness can be evaluated – while Abe may appear credible to a jury, Bob may be a craven liar that nobody would believe. We don’t want testimony from dishonest witnesses to be “laundered” through honest ones.
But we also cross examine for reasons other than dishonesty. Maybe Bob only heard the story from someone else. Maybe Bob is mistaken or forgetful. Maybe Bob had a terrible view of the event that he described to Abe. Even witnesses who are perfectly honest can have the credibility of their testimony undermined by effective cross examination. So even if an “excited” individual could not lie, that would not mean that a second or third hand version of “excited” testimony is inherently reliable.
Because of this, some legal commentators have questioned whether the rule should be retained. [12] Judge Posner in particular, has repeatedly spoken against the rule, describing it as “folk psychology” that contradicts modern medical knowledge. In a lengthy concurrence in United States v. Boyce, he wrote that “the exception for excited utterances rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas” and suggested doing away with it entirely. [13] In its place, Posner suggested a reliability based test that would replace many of the existing exceptions, allowing admission of hearsay “when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.” [14]
Thus far, there have been few takers for the rule change and the excited utterance exception remains the law in the Federal system and in most states. Perhaps someday there will be an effort to conform the rules of evidence to support rational and reliable factfinding. But until that day, the excited utterance remains a rule to be memorized and applied by advocates, even if its logical authority is deeply suspect.
[1] People v. Johnson, 1 N.Y.3d 302, 306 (2003).
[2] United States v. Magnan, 863 F.3d 1284, 1292 (10th Cir. 2017); see also
[3] Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir. 1988)
[4] United States v. Roberts, 84 F.4th 659, 668 (6th Cir. 2023).
[5] United States v. Graves, 756 F.3d 602, 605 (8th Cir. 2014)
[6] Consider In re C.C., 2007 WL 1366431 (Ohio App. 2007) (admitted excited utterance even though 27 days had passed since the event).
[7] United States v. Johnson, 117 F.4th 28, 47 (2d Cir. 2024) (“we conclude that the district court did not abuse its discretion by admitting the email as an excited utterance”).
[8] 6 John Henry Wigmore, Evidence in Trials at Common Law § 1750 [1976].
[9] Alan G. Williams, Abolishing the Excited Utterance Exception to the Rule Against Hearsay, 63 U. Kan. L. Rev. 717, n.53 (2015).
[10] People v. Simpson, 238 A.D.2d 611 (2d Dep’t 1997)
[11] Id. at 613.
[12] See Alan G. Williams, Abolishing the Excited Utterance Exception to the Rule Against Hearsay, 63 U. Kan. L. Rev. 717. (2015).
[13] United States v. Boyce, 742 F.3d 792, 802 (7th Cir. 2014) (Posner, J concurring).
[14] Id.
