EvidenceProf Blog

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

Saturday, September 18, 2021

Supreme Court of Wyoming Finds Statements on Bodycam Footage Were Admissible as Excited Utterances

Similar to its federal counterpart, Wyoming 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.

As the recent opinion of the Supreme Court of Wyoming in Jackson v. State, 492 P.3d 911 (Wyo. 2021), makes clear, the court applies a five factor test for determining whether a statement qualified as an "excited utterance" under this exception.

In Jackson, A jury convicted Bradley Jackson of strangulation of a household member: K.W. At trial, the prosecution introduced bodycam footage that included statements by K.W. in the aftermath of the strangulation. In deciding whether those statements were admissible as "excited utterances," the court noted that it had "identified five factors courts should consider when applying the excited utterance exception: '(1) the nature of the startling event; (2) the declarant's physical manifestation of excitement; (3) the declarant's age; (4) the lapse of time between the event and the hearsay statement; and (5) whether the statement was made in response to an inquiry.'"

The court then concluded that

Review of the bodycam footage reveals that the first factor weighs in favor of admission. K.W. was the victim of a violent crime that took place in her own home. Mr. Jackson asserts the second factor weighs against admission because K.W. shows little emotion for the first four to five minutes of the video. However, K.W. visibly exhibits more emotion as her discussion with Corporal Krinkee continues and she tells him more about the full scope of the altercation with Mr. Jackson. By the time she explains the strangulation, K.W. is crying and rocking on the sofa. Thus, the second factor weighs toward admission. The third factor is neutral....The fourth factor also weighs toward admission. While it is unclear how much time passed between when Mr. Jackson strangled K.W. and her statement to Corporal Krinkee, it is undisputed that the altercation between K.W. and Mr. Jackson was ongoing and only stopped when Corporal Krinkee knocked on the door....
The fifth factor weighs against admission. K.W. made her full statement only after extended questioning from Corporal Krinkee, when he made it clear he did not believe K.W.’s initial statements. When K.W. finally told her full story, she described what Mr. Jackson did, but did not say she could not breathe until Corporal Krinkee suggested it with a leading question. Further, it was Corporal Krinkee, not K.W., who described Mr. Jackson's actions as “strangulation.” This is different than the open-ended questioning in other cases and more akin to “detailed interrogation-style questioning that might negate the use of the excited utterance exception.”...
Here, though the fifth factor weighs against admission, the first, second, and fourth factors weigh in its favor. Further, while the factors are a helpful tool, the ultimate inquiry "remains whether the ‘declarant's condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.'"...The video shows that K.W. was very upset when she responded to Corporal Krinkee's questions. While her answers occurred in response to his questioning, they appear spontaneous rather than the result of reflection. The district court could reasonably find the statement was an excited utterance. Therefore, it did not abuse its discretion.



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This one seems fairly debatable.

For instance, it's unclear whether the first and second factors really weigh in favor of admission, given the fifth factor analysis noting how the officer elicited the statements on strangulation. So you could argue the statements weren't prompted by "the startling event" itself but rather drawn out by the officer's questioning. Likewise any "physical manifestation of excitement" could be viewed as in response to the pointed questions, not the underlying event.

Finally, the sum total of the analysis for whether K.W. made spontaneous statements was: "they appear spontaneous." That seems woefully insufficient. And I wouldn't usually consider answers to questions designed to elicit a specific response as "spontaneous."

But, in the end, maybe this one can squeak by under abuse of discretion. It's definitely a close call though.

Posted by: kotodama | Sep 19, 2021 11:03:03 AM

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