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Spontaneous Statements – From the Collection of Useful Hearsay Exceptions

Sometimes, one of the key pieces of evidence in your case is a hearsay statement. Maybe it’s an admission from the defendant or from the defendant’s agent. It might be testimony from another trial or hearing that squarely addresses an issue in your case. Whatever the situation, if you need to offer an out-of-court statement into evidence for the truth of the matter asserted in the statement itself, you have a problem on your hands.

But like getting a flat tire in the rain, it might not be in insurmountable problem. It is, however, a problem nonetheless, which means you need to plan your solution early enough to implement it. So when planning your case in chief, consider whether you might benefit from the spontaneous-statements hearsay exception. Let me give you an example.

The first case I ever tried to a jury was actually decided on a spontaneous statement of an unavailable hearsay declarant. I won that trial because I recognized my hearsay problem early enough to successfully implement my solution.

I was prosecuting a misdemeanor domestic-violence case. The defendant was a six foot five inch tall, 275 pound bruiser. The victim was his five foot tall, 90 pound wife. They were camping at the San Elijo Beach campground, and he cold-cocked her with a closed fist right cross straight to her eye socket, producing a conspicuous shiner.

The next morning, a park ranger came up to the couple. When he noticed the wife’s shiner, he asked her: “What happened?” Suddenly, she became visibly upset as though she were re-living the prior night’s events. Tears welled up in her eyes. Then, she pointed to her husband and dramatically blurted out: “He hit me!”

One of the social realities of trying domestic-violence cases is that the victims find themselves in a vicious conflict of interests. On the one hand, they want their abusers to be incarcerated so that they are free from the physical abuse. But on the other hand, they may be financially dependent on their abusers, and incarceration would therefore be extremely inconvenient for the household. They also fear retaliation. This leads to a phenomenon commonly known as “the recanting witness” or “the recalcitrant” or “absentee victim.”

Naturally, by the time the trial came around, the wife was “unavailable.” She ducked my subpoenas, slipped into the network of battered women and homeless shelters, and was gone. That meant that my star witness would be the park ranger who had to testify about what she said, which was plainly hearsay.

Enter the spontaneous statement – also known as the exited utterance.

Evidence Code §1240 states that a statement is not inadmissible hearsay if it “purports to narrate, describe, or explain an act, condition, or event perceived” and was made “spontaneously while the declarant was under the stress of excitement caused by such perception.”

Case law states that for the exception to apply, there must be (1) an occurrence sufficiently startling to produce “nervous excitement and render the utterance spontaneous and unreflecting;” (2) the utterance must have been made before there was time to “contrive and misrepresent,” i.e., while the nervous excitement still dominated the reflective powers; and (3) “the utterance must relate to the circumstances of the occurrence causing it.” People v. Poggi (1988) 45 Cal.3d 306, 318. The idea is that statements made in the heat of the moment are less likely to be false.

The admissibility of spontaneous statements is a matter within the discretion of the trial court. People v. Pearch (1991) 229 Cal.App. 3d 1282, 1290. Often, the main issue – as it was in my domestic-violence case – is a lapse in time between the event and the statement. But the key is that the statement must be made under the stress and excitement of the event “while the reflective powers were still in abeyance.” People v. Washington (1969) 71 Cal.2d 1170, 1176.

For example, the statements in Washington were made an hour after the event, but were nevertheless admissible. See also, People v. Raley (1992) 2 Cal.4th 870, 893 (18-hour gap in time); and In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 (2-day gap in time). However in one case, the court found that 13 hours between the startling event and the statement was too long for the exception to apply. Pearch, supra, 229 Cal.App.3d at 1290.

There is no bright-line rule about the timing of the event and the utterance. The distinction seems to be whether the declarant was still under the stress of the event. In my domestic-violence case, for example, the court was persuaded that the victim was under the stress of the battery because she welled up and seemed to be re-living the attack when she identified her husband as the attacker. He was also standing right behind her when the park ranger asked her “what happened?”

The spontaneous-utterance exception is not limited to verbal testimony. Affidavits or declarations can also contain hearsay made admissible by the exception. Mecchi v. Picchi (1966) 245 Cal.Ap.2d 470.

If you plan to introduce a spontaneous utterance at trial, be sure to have all necessary witnesses to lay your foundation. For example, be sure to call the person who heard the statement. Also, be sure to call the person who can testify as to the declarant’s state of mind, i.e., that the declarant was excited and under the stress of the event.

Finally, be sure to consider all other possible exceptions such as contemporaneous statements (Evid. Code §1241); statements relating to the infliction or threat of physical injury (Evid. Code §1370); statements by an elder or dependent-adult victim of abuse (Evid. Code §1380); admissions (Evid. Code §1220); dying declarations (Evid. Code §1242); statements of state of mind, emotion or physical sensation (Evid. Code §1250); declaration against interest (Evid. Code §1230); or prior inconsistent statements (Evid. Code §1235).

If you know that your case depends on a spontaneous statement – or any hearsay exception for that matter – plan early. Try to obtain your opponent’s stipulation as to admissibility, or else subpoena all foundational witnesses, request an Evidence Code §402 hearing and/or file motions in limine as necessary. Whatever the case, be proactive in getting your evidence admitted, especially if you can foresee an objection.

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