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Univ. of South Carolina School of Law

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Thursday, July 21, 2011

A Shock To The System: TN Court Finds No Problem With Admission Of Excited Utterance Following Subsequent Startling Event

Like its federal counterpartTennessee 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.

So, let's say that a child is allegedly sexually abused, and the next day her mother tells her to urinate before taking a bath. Instead of complying, the child cries and screams out that she was sexually abused by her uncle. Does this qualify as an excited utterance under Rule 803(2)? According to the Court of Criminal Appeals of Tennessee in its recent opinion in State v. Taylor, 2011 WL 2767032 (Tenn.Crim.App. 2011), the answer is "yes."

In Taylor, the facts were at stated above.  The mother testified that after she told her child to urinate before taking a bath,

She started screaming. I mean, she was crying. Tears were just rolling down her face crying, no Nana, no. Don't wash my goose. Don't touch my goose, Nana. She said, ow. She said he lost his ring in it and he put a hole in my goose. And I went, what? She said, he couldn't find his ring, Nana, so he stuck his finger up my butt. I said, what do you mean? She said, Uncle Al. She said, he put his ring up in my goose and then he put his finger in and couldn't find it so then he put his finger up my butt.

After he was convicted, the uncle appealed, claiming that the child's statement was inadmissible hearsay and did not qualify as an excited utterance. The Court of Criminal Appeals of Tennessee disagreed, concluding that

In this case, the trial court concluded that the victim's statement to Ms. Tate implicating the defendant met the requirements for admission because the victim made it while still experiencing physical pain caused by the defendant's digitally penetrating her.

The record supports the ruling of the trial court. The victim's statement to her grandmother came about as a spontaneous reaction to her physical pain and the fear of the pain she might experience in the bath. The statement clearly relates to a startling event, the defendant's placing his finger in the victim's vagina, because it explains the genesis of the pain in her genital area. Despite the temporal distance between the event and the statement, the continued pain caused by the offense clearly placed the victim under stress at the time she made her revelation. Moreover, the victim's age militates against any finding of fabrication and supports a finding of spontaneity. Accordingly, based upon a de novo application of the law to the factual findings of the trial court, we conclude that the trial court did not err by admitting the victim's hearsay statement.

I agree, but not just based upon the age of the child and her continuing pain. A parent could attack a child, and the child could still feel the pain of her bruises a week later, but I don't think that anyone would say that a statement made at that point could qualify as an excited utterance. I'm not even sure that a statement the day after a sexual assault could qualify as an excited utterance, unless there were a subsequent startling occurrence. But there was such an occurrence as the child in Taylor was told to urinate and made her statement while facing the prospect of new pain. And, as I noted in my article, A Shock to the System:  Analyzing the Conflict Among Courts Over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49 (2005), such statements should qualify as excited utterances.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/07/eu-state-v-taylorslip-copy-2011-wl-2767032tenncrimapp2011.html

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