EvidenceProf Blog

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

Friday, April 25, 2014

Rescue 911: Court of Appeals of South Carolina Grapples With Double Hearsay Issue

Similar to its federal counterpartSouth Carolina Rule of Evidence 805 provides that

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

So, assume that a daughter reports to her mother that she was sexually assaulted and that the mother then calls 911 and relays what her daughter told her. Should the 911 call be admitted? According to the Court of Appeals of South Carolina in State v. Hendricks, 2014 WL 1614844 (S.C.App. 2014), the answer is "no."

The facts in Hendricks, were as stated above. Specifically, the mother, Lisa Gilstrap,

testified she received a phone call from her daughter, who was crying and distraught. Her daughter told her Hendricks “had beaten her up and raped and sodomized her.” Gilstrap testified that when her daughter arrived at her house, she was shaking and crying, had injuries on her face and arms, and looked like she had been in a fight. Gilstrap explained they first put the children to bed because they were her daughter's “paramount concern.” Gilstrap then drove her daughter to the hospital because her daughter “was not able” to drive. Gilstrap called 911 on the way.

The Court of Appeals of South Carolina easily found that the daughter's statements qualified as excited utterances under South Carolina Rule of Evidence 803(2), which 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."

But what about the mother's subsequent statements during her 911 call, which were also admitted? The court found that these statements did not qualify as excited utterances for four reasons:

First, Gilstrap did not immediately call 911 when her daughter called and told her what happened. Instead, she waited for her daughter to arrive at her house, giving her time to reflect on what her daughter told her....Second, Gilstrap helped her daughter put the children to bed before calling 911. Third, Gilstrap testified she drove the car because her daughter “was not able.” Gilstrap was calm enough to drive, and her voice sounds calm on the audio recording of the 911 call.  

Finally, the statement itself indicates Gilstrap was not speaking spontaneously, and her process of reflective thought had not been suspended.



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