Availability Immaterial- Excited Utterance [FRE 803(2)]

Question 1

FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial

Answer 1

The following are not excluded by the hearsay rule, even though 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 caused by the event or condition.

Question 2

FRE 803

A. Requirements for Excited Utterance (FRE 803(2))

Answer 2

1. An External Stimulus
2. An Excited Reaction
3. A Statement that Relates to the Stimulus

    a. The statement need not describe or depict the event or condition

Question 3

B. Rationale for Excited Utterance Exception [FRE 803(2)]

Answer 3

1. Delcarant is too shocked to lie
2. Spontaneity (lack of “fabrication lag”), assures sincerity [this is premised on a strong left leg of Tribe’s
   triangle, that we don’t need to worry about “sincerity,” of course, memory and perception may be problematic]

Question 4

FRE 803:

Who Decides?

Answer 4

JUDGE DECIDES (under FRE 104(a))

Question 5

Cases:

Houson Oxygen Co. v. Davis

Answer 5

1. Houson Oxygen Co. v. Davis
2. Here, a woman was in a car as another car blew by it. The woman inside the car commented “they must be
   drunk. We’ll find them crashed.”
3. Appellate court says that it was reversible error to not let this statement in!
4. The court found that the statement was made while perceiving the event, and thus could be admissible on this
   basis