Monday, December 30, 2019
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.
As Rule 803 makes clear, excited utterances and other statements satisfying a Rule 803 hearsay exception are admissible regardless of whether the declarant is available. So, for instance imagine that Ed is on his cell phone with his friend Fred and shouts, "Oh my God! Dan just shot Vince." Even if Ed is unavailable (e.g., he has passed away before trial), Fred can testify about his excited utterance. But what happens when the declarant is unidentified?
In Mitchell v. Target Corporation, 2019 WL 5309624 (D.Md. 2019), Ellen and James Mitchell sued Target, claiming that, "due to the negligence of Target, Ms. Mitchell sustained serious injuries on July 31, 2015, when she slipped and fell while shopping at a Target store in Salisbury, Maryland." According to the plaintiffs,
"within seconds, 30 seconds, when the fall occurred," a couple walked around the corner, because they heard Ms. Mitchell scream.... Ms. Mitchell and [her daughter] Karrsin both described the man as a white male dressed in a navy-blue shirt with the insignia of a volunteer fire department....The man asked if plaintiff was “all right” and if she “need[ed] help.”...Karrsin said that her mother slipped....Karrsin testified that, in response, the man said: “My wife had just slipped in a spot and I had just talked with an associate, or whoever, someone at the front of the store who worked there, that there was something on their floors."
The plaintiffs were never able to identify this man but still sought to admit his statement as an excited utterance. According to the court, one problem with this argument is that "the record cannot support the conclusion that the man’s statements were made “ ‘while under the stress or excitement of that event or condition, not from reflection,'"...so as to satisfy FRE 803(2).
Moreover, the court noted that
The fact that the declarant is not just unavailable but unidentified further militates against admitting the statements as excited utterances. Fed.R.Evid. 803(2) does not categorically exclude statements by unidentified declarants....However, where the declarant is both unavailable and unidentified, the "party seeking to introduce such a statement carries a burden heavier than where the declarant is identified to demonstrate the statement’s circumstantial trustworthiness.:...Indeed, the advisory committee’s notes to Fed.R.Evid. 803 provide: "[W]hen declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient, a result which would under appropriate circumstances be consistent with the rule."
he record does not contain circumstantial indicia of reliability. The man’s statements that his wife almost fell and that he told Target about the slippery floors were heard only by Ms. Mitchell, a party, and her daughter. None of the reports created by Target employees after the incident mention any witnesses, besides Karrsin and Hanahsin....Giles testified that he had no recollection of a man assisting Ms. Mitchell, and he stated that had he seen someone helping her, he would have interviewed the person.... Further, Ms. Mitchell’s testimony that the man spoke with Giles...is directly contradicted by Karrsin, who testified that the man did not interact with Giles.