Evidence – Excited Utterance Exception

The Law

Certain developments in the law of evidence in Missouri have made it somewhat easier in recent years to prosecute domestic violence cases. One of those developments is the use of the "excited utterance" exception to the hearsay rule to allow into evidence statements made by a domestic violence victim during a 911 call, even when she has turned uncooperative with the prosecution and is not available to testify at the trial of her abuser.

Under the traditional law of hearsay, out of court statements made by a person may not generally be received into evidence; rather, the person must testify in person. Thus, when a domestic violence victim would change her mind and refuse to testify against her abuser, a prosecutor often could not prove the case in court simply by having the police officer tell the judge or jury what the victim had previously told him had happened. As a result, many cases would be lost despite the prosecutor’s best intentions to vigorously enforce domestic violence laws.

On August 22, 2000, the Missouri Court of Appeals decided the case of State v. Edwards, ___ S.W.3d ___ (Mo. App. W.D. 2000). In a unanimous decision written by Judge Laura Denvir Stith, the Court held that in a situation where a domestic violence victim was unavailable to testify at trial (in this case she refused, asserting a Fifth Amendment privilege), the prosecutor could admit into evidence the 911 call the police department had received, in which the victim, who had been stabbed by her boyfriend, participated in the following conversation:

Victim: "I need the, I need the police at 3924 Forest. I need an ambulance!"

911 Operator: "What’s going on?"

Victim: "I’ve been cut!"

911 Operator: "Who cut you?"

Victim: "Uh, Hosea Edwards."

911 Operator: "Okay. Is he still there?"

Victim: "Yes, he is."

911 Operator: "Okay, what does he look like?"

Victim: "He’s about 5'8", 5'9"."

911 Operator: "What’s he wearing?"

Victim: "Right now he’s wearing underwear. And uh . . ."

911 Operator: "Okay, what’s your name, ma’am?"

Victim: "Lily Haney."

911 Operator: "Okay. Is that a house or an apartment?"

Victim: "It’s a house. [Gives address]

911 Operator: "Okay. What’s your phone number there?"

Victim: [Gives phone number]

911 Operator: "Okay. We’ll get officers and paramedics out there."

The Court held that the transcript and tape-recording of the 911 call were admissible under the excited utterance exception to the hearsay rule. Under this exception, hearsay testimony is admissible if the "excited utterance was made under circumstances as to indicate it is trustworthy. The rationale of this exception to the hearsay rule is that, if the statement is made under the immediate and uncontrolled dominion of the senses as a result of the shock produced by an event, the utterance may be taken as expressing the true belief of the declarant." In other words, a person who is blurting out something while extremely excited during a stressful event is unlikely to be deliberately fabricating what she is saying in order to create evidence for court. Thus, the comments are reliable.

The Court ruled that the evidence was admissible, noting that the call occurred shortly after the knifing, and while the caller was still in a state of excitement as a result of being wounded. The tape itself showed that the caller was not calm, but rather was catching her breath and speaking with emotion. Also, an officer arrived within 3 minutes of the call and noticed that the wounds appeared to be fresh. Without the admission of the 911 tape, the prosecution could not have won its case.

The Cape Girardeau County Prosecutor’s Office will attempt to use the excited utterance exception when possible to strengthen its cases, even when a victim has become uncooperative.