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April 11, 2009
Ford Tough?: Sixth Circuit Reverses Excited Utterance Ruling Against Ford Based Upon Odd Test
The recent opinion, Maggard v. Ford Motor Company, 2009 WL 928604 (6th Cir. 2009), makes it clear that the Sixth Circuit has added one foundation factor to the excited utterance exception to the rule against hearsay and subtracted another. In looking at the way in which that court analyzes excited utterances, however, I would characterize the result more as strange than unsettling.
appealed from a jury verdict finding the company strictly liable for injuries suffered by Dawn Maggard after her leg was trapped under her Ford Windstar
van as it unexpectedly began to roll backwards out of her driveway
. In reaching this verdict, the jury apparently relied upon the version of events relayed to them through Dawn and her ten-year old daughter Holly (via deposition) that the Ford Windstar
van began moving while the gearshift was in the park position
. And they really had no choice. No alternate version of events was presented because the trial judge precluded Ford
from presenting into evidence the report of a responding officer whom spoke with Holly 30-40 minutes after the accident and wrote:
[T]he witness, the driver's ten-year-old daughter...stated her mother was going to drive her and her little sister to Walgreens. Witness stated her mother was getting in the driver's seat while she and her sister walked around to the passenger side. Witness stated her mother was halfway in the van when she slipped. Witness stated her mother grabbed the gearshift [sic] as she slipped and the van went into reverse. The van was parked at the top of driver's inclined driveway and began rolling backwards. Witness stated her mother could not keep up to get in and, as she struggled, the van turned and the driver's leg was pulled under the front and dragged...and victim fell out of the van and was trapped under the van as it came to rest in the ditch across the street.
In the report, the officer also provided the following description of Holly's demeanor at the time that she spoke with him:
“I don't recall her being very upset and having difficulty talking to me, I mean, other than naturally being upset about what had just happened. And I do kind of recall thinking that she probably didn't really know at the time the seriousness of it."
Holly was initially named as a plaintiff but was later voluntarily dismissed because the elder Maggards (or their attorney) presumably realized that it she were a plaintiff, her statements to the officer would have been admissible under Federal Rule of Evidence 801(d)(2)(A) as the admission of a party opponent. And the strategy worked, at least in the short term, because the district judge also found that Holly's statements to the officer were not admissible as present sense impressions under Federal Rule of Evidence 803(1) or excited utterances under Federal Rule of Evidence 803(2). While the Sixth Circuit agreed on the former exception, it disagreed on the latter and thus reversed. Initially, the court noted that Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for "[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." The Sixth Circuit then noted that an "excited utterance" is admissible under this exception only if three foundation factors are fulfilled:
(1) there [is] an event startling enough to cause nervous excitement;
(2) the statement [is] made before there is an opportunity to contrive or misrepresent; and
(3) the statement [is] made while the person [is] under the stress of the excitement caused by the event.
There are two problems with this conclusion. First, the text of the rule makes it apparent that the "requirement" that the statement at issue be "made before there is an opportunity to contrive or represent" is not in fact a requirement under the excited utterance exception. Instead, what matters is that the proponent prove that the statement was made while the person was still under the stress of the startling event/condition (the third element), which then leads to the conclusion that it was reliable. Second, the text of the rule clearly requires that the subject statement be related to the startling event/condition, yet the Sixth Circuit does not list this requirement as a foundation factor.
So, why did I say above that the Sixth Circuit's test is more strange than unsettling? Well, it seems as if that court does basically the same analysis under factor two as it does under factor three. In finding that factor two supported admission in Maggard, the court considered the "passage of time" and the "circumstances of the event," including the substance of Holly's statements and the fact that nobody had counseled her before she spoke with the officer. Similarly, in finding that factor three supported admission in Maggard, the court considered
“(1) the lapse of time between the event and the declarations; (2) the age of the declarant; (3) the physical and mental state of the declarant; (4) the characteristics of the event; and (5) the subject matter of the statements."
In other words, the Sixth Circuit's second factor seems merely duplicative of its third factor and thus meaningless. Moreover, as noted, the Sixth Circuit considered the "substance of Holly's statements," finding that "[w]hen the subject matter of the statement involves the startling event itself, the subject matter supports a finding that the declarant was still under the stress of the statement." I interpret this as the Sixth Circuit reading the requirement that the subject statement be related to the startling event/condition into its foundation factors. It thus seems to me that while the Sixth Circuit's test for the admissions of excited utterances is confusing, it is not (that) different from the test called for by Federal Rule of Evidence 803(2).
April 11, 2009 | Permalink
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Interesting post, Professor. Looking at the cited precedent, it appears that the test comes out of the court's decision in Haggins v. Warden, 715 F.2d 1050 (6th Cir. 1983). In that case, it appears that the court brought in the second factor (not in the text of the rule, as you point out) to look at a purported excited utterance not only as an exception to the hearsay rule, but also to get past Sixth Amendment confrontation concerns. See, Haggins, in 1983, was applying the Ohio v. Roberts indicia-of-reliability test for the confrontation clause, and prong two, is an attempt to ensure that! Id. at 1057 ("The excited utterance exception is based on the belief that the statement is reliable because it is made while the declarant is under the stress of excitement. It is unlikely that the statement is contrived or the product of reflection. Thus, in general, statements falling within the excited utterance exception do not contravene the policies of the confrontation clause.")
Judge McKeague, in this case, then, erred in applying the test because: (1) this is not a criminal case with Sixth Amendment concerns; and (2) the Crawford framework controls which calls into question the test generally. But as you point out, it's all the same in the judgment because you can just fold prongs 2 and 3 together. But it does make for confusing law.
Posted by: Thirteen | Apr 11, 2009 7:58:39 AM
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