Excited Utterance

Confession of the day: I watch Judge Judy. No, it’s not because I revel in seeing poor unfortunate souls succumbing to her rudeness, self-importance, or condescension. It’s because of the fact that out of all the silly court shows on TV, hers is the only one that ever even marginally somewhat half-way almost kinda sorta pretends to loosely approximate a remote facsimile of an actual rules-based forum. For example, I like when she schools people on the hearsay rule. In a real court, hearsay is of course inadmissible, because the speaker isn’t there to be cross-examined. In other words, hearsay is unreliable. Untrustworthy. Dubious. It frustrates the pursuit of truth. And yet, most court shows let the parties spew hearsay ’til the cows come home — especially if it’s salacious enough to keep folks tuned in through the commercial break. But Judge Judy? Oh, no sir. No ma’am. Soon as anybody waves a witness letter in the air or yaps about what a roommate’s second cousin said on three-way video-chat, Sheriff Sheindlin shuts it down.


But hearsay does find an audience in Judge Judy on occasion. Although she doesn’t bore the fans with legalese, I think she most often excuses hearsay on the basis of what we bloodsucking barristers call an “excited utterance.” Some jurisdictions call it “spontaneous utterance,” res gestae, or some other shorthand for Rule 803(2) of the Federal Rules of Evidence (or in my case, the Tennessee Rules of Evidence).

So what’s an excited utterance? Funny you should ask! The Tennessee Supreme Court recently reminded us:

Pursuant to Rule of Evidence 803(2), the hearsay rule does not exclude a statement relating to a startling event or condition made while the declarant was under the stress of excitement…. We have interpreted the rule to set forth three requirements…. The first requirement is a startling event or condition that suspend[s] the normal, reflective thought processes of the declarant…. Second, the statement must “relate to” the startling event or condition … such that the statement may describe all or part of the event or condition, or deal with the effect or impact of that event or condition…. The third and final requirement dictates that the declarant make the statement while under the stress or excitement from the event or condition.

State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010) (internal citations omitted). So, hearsay or not, a shriek of “Oh sh*t, he just shot Johnny!” is likely going to make its way into court, even if the original speaker (‘declarant”) skips town. Statements like that are considered reliable enough to pass muster without cross-examination. The theory is that sometimes a situation is so tense and crazy that it “temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.” Franklin at 823. In other words, the speaker is too freaked out to come up with a lie, so he is probably telling the truth.

Typically, when somebody shoots someone, the standard excited utterance is some kind of meaningless exclamation or empty expletive with no informational value (“F*ck!” or thereabouts). But when Deputy Robert Bates fatally shot Eric Harris, the deputy’s excited utterance was something else entirely:


Eric Harris isn’t exactly a choir boy. But there’s no reason in the world for him to be dead right now. And there’s no amount of “sorry” that will ever bring him back. That being said, I’m inclined to believe Robert Bates’ initial excited utterance, in spite of his later, more self-interested, lawyer-laden defenses. Although it doesn’t even begin to put this tragic genie back in the bottle, I do think Bates is sorry. Still gotta pay the piper. But I think he’s actually remorseful. Or at least he was — in that audio-captured moment of bare naked honesty right after the gunshot, he seemed to be truly sorry. And if only a little bit, that matters.

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