Sunday, April 1, 2012
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.
So, let's say that a mother comes home and finds her son's pregnant girlfriend beaten and bloodied. If she calls 911 and describes the girlfriend's condition and the son's whereabouts, do her statements qualify as excited utterances? According to the recent opinion of the Ninth Circuit in United States v. Gomez, 2012 WL 1026066 (9th Cir. 2012), the answer is "yes."
In Gomez, the facts were as stated above, with Phillip Gomez being the son/defendant charged with assault and kidnapping. At trial, the prosecution introduced the 911 conversation. After he was convicted, Gomez appealed, claiming, inter alia, that the conversation did not qualify as an excited utterance and that its admission violated the Confrontation Clause because his mother did not testify.
With regard to the hearsay argument, the Ninth Circuit found that he mother's
statements to the 911 dispatcher, made almost immediately after [she] first saw [the girlfriend] in a beaten and bloody state, were properly admitted under the excited utterance exception. See Fed.R.Evid. 803(2). Although [the mother] did not witness the assault, the "event" continued until [the girlfriend] received emergency care, and [the girlfriend]'s "condition" no doubt caused [the mother] great stress as reflected in her 911 call. Accordingly, admitting her statements under Rule 803(2) was not an abuse of discretion.
And with regard to the Confrontation Clause argument, the court found that the mother's statement was nontestimonial because
She was not describing an event in the past but rather seeking help to alleviate an ongoing emergency. [The girlfriend] required air evacuation to a hospital where she remained for treatment for a week. Moreover, the dispatcher's questions were aimed at soliciting information on [the girlfriend]'s condition, providing directions on how to help her, and identifying the name and possible location of the assailant. Thus, the admission of these nontestimonial statements was proper.