EvidenceProf Blog

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

Thursday, August 27, 2009

Confronting Fear: Tenth Circuit Finds Excited Utterances Aren't Per Se Excluded From Scope Of Confrontation Clause

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. 

Meanwhile, the Confrontation Clause of the Sixth Amendment is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify regarding the hearsay at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. This begs the question of whether excited utterances under Rule 803(2) are per se excluded from the scope of the Confrontation Clause. In United States v. Pursley, 2009 WL 2568954 (10th Cir. 2009), the Tenth Circuit answered this question of first impression in the negative, contrary to the district court's conclusion.

In PursleyCarl William Pursley, Jr. was charged, along with three codefendants, with conspiring to retaliate against a witness  and (2) with retaliating against a witness in violation of and aiding and abetting the commission of this crime. That witness was Jessie Cluff, whom was brutally beaten in a courthouse cell after rendering testimony against Pursley in a tax fraud trial. Soon after being beaten, Cluff made statements to Deputy U.S. Marshal Motlzan implicating Pursley and a confederate in the attack.
At Pursley's ensuing trial, Cluff testified that he made statements to Moltzan after the attack, but he did not testify regarding the content of those statements. Thereafter, over Pursley's objection, the trial court found that Moltzan could testify regarding the contents of Cluff's statements because those statements constituted excited utterances under Federal Rule of Evidence 803(2). The trial court also rejected Pursley's argument that the admission of these statements violated his rights under the Confrontation Clause, concluding that excited utterances are per se excluded from the scope of the Confrontation Clause.  
On Pursley's subsequent appeal, the Tenth Circuit disagreed with the trial court's Confrontation Clause conclusion but nonetheless affirmed. The court noted that in Davis v. Washington, 547 U.S. 813 (2005), the Supreme Court had found statements admitted by Indiana courts as exceited utterances nonetheless violated the defendant's rights under the Confrontation Clause. Indeed, the court noted that "[o]ne of the lessons of Crawford and Davis...is that even if a statement qualifies for an exception to the hearsay doctrine-based upon judicially fashioned reliability principles-the statement's admission may violate the Sixth Amendment's mandate for 'confrontation' if it constitutes 'testimonial' hearsay."
The Tenth Circuit, however, found that even if Cluff's statements were testimonial hearsay, their admission did not violate Pursley's rights under the Confrontation Clause because Pursley was able to cross-examine Cluff even though Cluff did not testify regarding the content of his statements. Moreover, the court found that "Cluff remained available as a witness even after Mr. Moltzan testified" and that he "remain[ed] subject to recall for further testimony," giving Pursley a further chance to cross-examine him.


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