Saturday, March 31, 2012
Right Here, Right Now?: 3rd Circuit Finds Unidentified Declarants Can't Give Admissible Excited Utterances
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 that it caused.
And, like all Rule 803 hearsay exceptions, this excited utterance exception applies "regardless of whether the declarant is available as a witness...." But what if the declarant is unidentified? Well, then we have a problem, according to the recent opinion of the Third Circuit in Canton v. Kmart Corp., 2012 WL 1035527 (3rd Cir. 2012).In Canton, Patrice Canton
filed a personal injury action against Kmart to recover economic damages resulting from her physical injuries received during a slip and fall accident. While shopping in the Kmart store at the Sunny Isle Shopping Center in St. Croix, Virgin Islands, Canton slipped on a clear, liquid substance on the floor in one of the aisles and was physically injured.
Canton thereafter appealed, claiming, inter alia, that the district court erred by deeming testimony by a second Kmart customer, Carolyn Roberts, inadmissible.
Roberts stated that she overheard a Kmart employee saying "someone did tell me something's on the floor. But I didn't go right away to see what it was."...Roberts described the employee as a slim, dark-skinned, short woman, but did not know the woman's name.
The district court deemed this statement as an employee admission, holding that "because the identity of the employee was not known, it was not possible to determine if the statement was made by the woman within the scope of her employment.
On appeal, Canton claimed that the district court should have deemed the statement admissible as an excited utterance under Federal Rule of Evidence 803(2). The Third CIrcuit disagreed, concluding that
We have stated that "utterance[s] of [an] unidentified declarant [are] not admissible under Rule 803(2)."..."At minimum, when the declarant of an excited utterance is unidentified, it becomes more difficult to satisfy the established case law requirements for admission of a statement under Fed.R.Evid. 803(2)."...Those requirements are defined as "(1) a startling occasion, (2) a statement relating to the circumstances of the startling occasion, (3) a declarant who appears to have had opportunity to observe personally the events, and (4) a statement made before there has been time to reflect and fabricate."...
In the instant case, the issue involves a statement made by an unidentified person thought to be a Kmart employee. We find it curious that after voluminous discovery, including numerous depositions, the employee who purportedly made this damning statement was never found. The inability to identify the speaker of the statements Ms. Roberts alludes to undermines any notion that this hearsay statement is reliable.
I agree that it is difficult to satisfy the requirements of Rule 803(2) when the declarant is unidentified, but I don't think that it is impossible. Imagine for example Witness standing next to Declarant at an intersection as a blue car runs a red light and violently crashes into a black car. Immediately, Declarant shouts out, "Oh my God! That blue car just ran the red light!" Declarant then leaves the scene of the accident and is never heard from again. At trial, a party wants to call Witness to relay Declarant's statement to the jury. In this case, even though Declarant is unidentified, I think that the party could make a strong enough showing under elements 1-4 to allow for the admission of the statement as an excited utterance.