EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, June 15, 2009

(In)Competently Put?: Court Of Appeals Of Mississippi Rejects Competency Challenge To Excited Utterance

It is well established in the American court system that only competent witnesses may testify in open court, If an individual cannot understand the difference between right and wrong, respond intelligibly to cross-examination, etc., he cannot render testimony before a jury. And, understandably, the same generally applies to hearsay declarants. If a witness cannot take the stand because he is incompetent, surely his out-of-court-statements cannot be introduced through the testimony of another witness. But, while this is the general rule, many courts, such as the Court of Appeals of Mississippi in its recent opinion in Eubanks v. State, 2009 WL 1520108 (Miss.App. 2008), find that there is an exception for excited utterances.
In EubanksDarrius Eubanks was convicted of capital murder, with the underlying felony of felonious child abuse. That conviction was based upon alleged acts that Eubanks committed against the children of his girlfriend, four-year-old Daviyon Johnson ("Doc") and two-year, eleven-month-old Inecia McNeil, who referred to Eubanks as "Daddy." The facts adduced at trial indicated that Eubanks' girlfriend, returned from visiting her sick grandmother one day and 
found Daviyon lying on the floor with Eubanks standing beside him. Inecia was standing against a wall, not moving, and she appeared "scared." Johnson asked Eubanks what was wrong, and he replied that he did not know. Johnson moved into her bedroom and called for her son to get up. When Daviyon failed to respond, Johnson went back into the children's bedroom. Eubanks picked Daviyon up, and Johnson described the child as limp "like a little Raggedy Ann doll." Johnson testified she took Daviyon into the bathroom, where she observed that "the whole side of [his] face was just black and blue and red." Johnson testified she asked Eubanks what had happened. He again told her that he did not know, but he added that the children had both reverted from their toilet training and soiled their clothing. Johnson also testified that Eubanks told her that Inecia had hit her older brother in the head with a stick that had been used to secure the apartment's patio door.

Johnson then went to a neighbor's apartment to telephone her mother and aunt. She asked them to come to get her and Daviyon and take them to CMMC. She then returned to the apartment, where she undressed Daviyon, washed him thoroughly, wrapped him in a blanket, and threw on a coat to meet her mother at the door. Johnson then took her daughter to an upstairs neighbor, Emma Robinson. When her mother arrived, Johnson testified that Eubanks said he would stay and clean up the apartment; Johnson was surprised he did not accompany them to the hospital. Johnson, Daviyon, her mother, and her aunt then left for the nearby CMMC.

CMMC could not stabilize Daviyon, and about an hour later, Daviyon was sent by ambulance to the University of Mississippi Medical Center (UMMC). Johnson returned to the apartment to pick up her daughter before continuing on to UMMC. Johnson testified that during the ride to UMMC, Inecia appeared "[q]uiet, scared. Like she was terrified." Johnson observed that ordinarily Inecia "never stopped talking," but she had been silent since Johnson returned home. In the car, Johnson asked the child, "Raja[,] what happened?" Johnson testified, over the objection of the defense, that Inecia responded, "[D]addy hit Doc with the stick in the head a lot of times[,] and he hit me too. Then Doc started crying[,] and [D]addy wouldn't stop hitting him. And then Doc stopped crying[,] and he didn't move no [sic] more."

The trial judge overruled the defense's objection because it found Inecia's statement to be admissible as an excited utterance under Mississippi Rule of Evidence 803(3) as it was "[a] statement relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition." And after Eubanks was convicted, he appealed claiming, inter alia, "that the trial court should have held a competency hearing to determine whether Inecia was competent to testify." The Court of Appeals of Mississippi, however, rejected this argument, concluding that "an excited utterance is admissible notwithstanding the availability of the declarant at trial."  

Indeed, this was not an anomalous opinion. As the Court of Appeals of Nebraska held in State v. Stithem, 1993 WL 500607 (Neb.App. 1993), 

[i]n litigation involving children, there is an exceedingly important exception to the rule that a hearsay declarant be competent at the time of an out-of-court statement. The great majority of decisions hold that an excited utterance is admissible despite the fact that the declarant is incompetent when the out-of-court statement is made. The rationale for this exception is that excited utterances draw their reliability from the circumstances in which they are uttered, not from the trustworthiness of the declarant.

I disagree with the vast majority of decisions for two reasons. First, I don't see how the above analysis distinguished excited utterances from statements falling under any other hearsay exceptions. Second, there are reasons to doubt the reliability of excited utterances. As David Crump noted in The Case foe Selective Abolition of the Rules of Evidence, 35 Hofstra L. Rev. 585, 615 (2006),

the exception for an "excited utterance' admits hearsay if it is spoken while under the stress of an exciting event.The theory is that the required element of stress reduces the sincerity risk, because a person under stress does not have the time or presence of mind to make up a false story. In the first place, we do not know whether this is so, or whether it is true to some degree only. In the second place, and more importantly, stress does not guarantee against defects in perceptivity, qualification, expression, or bias. In fact, the psychology of perception under conditions of stress points in precisely the opposite direction from this exception, indicating that hearsay of this kind is distinctly unreliable. The experiments show that stress results in distorted perception and reporting--it produces lesser accuracy, not greater. The ironic result of this exception for excited utterances, however, is that a court would be much more likely to admit evidence of Leake's son's hearsay statement if he had made it under stress--if it had been uttered right after the accident, for example, or in response to a shocking revelation by the insurance investigator--even though we would then have less reason to credit the statement, and even though the statement as actually uttered, which the rules excluded, had greater indicia of truth.

Nonetheless, the decision by the Court of Appeals of Mississippi appears to be the law of the land in most courts and one that is unlikely to change in the near future.



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