There has been a spate of criticism of New York's excited utterance exception to the hearsay rule over the past 18 months, most recently in December 2019. As the critics are thoughtful persons, their criticism cannot be ignored. This column will address those criticisms and discuss what, if anything, should be done with respect to the exception in light of them. It will begin with a brief statement of the elements of the exception and the exception's underlying rationale. Then, a discussion of the impetus for this criticism, and the criticisms voiced by the New York commentators will ensue. Lastly, a review of the criticisms will be undertaken. The column will end with a recommendation for the courts and the legislature regarding the future of the exception.

Elements of the Exception

The New York Court of Appeals has long recognized under the common law the excited utterance exception to the hearsay rule. Under this exception, "[a] statement about a startling or exciting event made by a participant in, or a person who personally observed the event is admissible, irrespective of whether the declarant is available as a witness, provided the statement was made under the stress of nervous excitement resulting from the event and was not the product of studied reflection and possible fabrication." Guide to NY Evidence Rule 8.17. The traditional theory behind allowing an "excited utterance" to be admitted into evidence is that when an individual says something after witnessing a startling or exciting event about that event, the shock, stress or nervous excitement of that event impacts the individual's reflective powers, temporarily stilling the individual's reflective powers so as to exclude the idea of fabrication, and thus the statement made about the event reflects the facts just observed by the individual. See People v. Caviness, 38 N.Y.2d 227, 230-31 (1976).

In his concurring opinion in United States v. Boyce, 742 F.3d 792 (7th Cir. 2013), Judge Richard Posner proposed that the Federal Rules of Evidence hearsay exception for excited utterances, FRE 803(2), an exception similar to New York's, should be abolished because its premise—that declarant cannot lie if they are startled—is empirically supported and belied by social science research. This is, of course, the rationale for New York's exception. Whither New York? Viewing Judge Posner's comments as a proverbial shot across the bow to the New York Legislature and the courts about the reliability of statements admitted as excited utterances, should New York eliminate or in some fashion severely restrict the admissibility of hearsay statements under the exception?

Notably, New York judges in the past 18 months have argued the exception should be abolished. The judicial attack started with Court of Appeals judge Jenny Rivera. In People v. Cummings, 31 N.Y.3d 204 (2018), the court overturned a conviction, finding that the trial court erred in admitting a hearsay statement under the excited utterance exception. Rivera concurred in the reversal, but in doing so expressed her agreement with Judge Posner regarding abolition of the exception instead of its continuation. She commented: "It appears that only tenuous support exists for the proposition that a declarant's event-concurrent statements should evade traditional evidentiary requirements, and thus for this judicially-created 'excited utterance' exception. Science, fact, and common sense suggest that we should cabin, if not outright abandon, the exception." Id. at 215.

Judge Rivera continued her dislike for the exception in her dissenting opinion in People v. Almonte, 33 N.Y.3d 1083 (2019). The majority was confronted with claim that the trial court erred in admitting a hearsay statement under the excited utterance exception. The court responded by holding that even if error were present, it was harmless. Judge Rivera dissented, finding that the admission of that statement as an excited utterance was erroneous and also not harmless. Id. at 1096-99.

More significant were her comments with respect to defendant's argument that the excited utterance exception should be abolished, an argument based in large part on her comments in her concurring opinion in Cummings. However, as the argument was raised for the first time in the Court of Appeals, it was not preserved. Nonetheless, Judge Rivera observed that defendant had a substantial basis to make the argument at the trial level, dropping a broad hint to defendants in future cases. Id. at 1099-1100.

The most recent attack on the exception is from four trial judges in Western New York, John J. Ark, Daniel J. Doyle, William Taylor and Richard A. Dollinger, in a New York Law Journal article, "OMG: The Future of the 'Excited Utterance' Doctrine in New York?," NYLJ, Dec. 16, 2019, p. 3, col. 3. They express their agreement with Judge Rivera's comments in Cummings and Almonte. but unlike Rivera, they express their concern about the exception in a specific context, the use of the exception to admit 911 recordings. In their view, when an anonymous 911 call is made, identifying a perpetrator, and the declarant never appears, there is a serious risk that the exception would be allowing untrustworthy evidence to be presented to the jury, especially considering that "instantaneous fabrication is perhaps just as likely a verisimilitude." Id.

Opponents of Abolition

The call for abolition of the exception, or at the very least significant reform of it, has opponents. Thus, this commentator has expressed the view that while the underlying rationale for the exception may be questionable, the exception with its strict requirements for invoking it provides sufficient tools for a judge to prevent abuse. Thus, there is no need for abolition, or substantial reform. See Michael J. Hutter, "Excited Utterances and Present Sense Impressions: Time to Reevaluate?" NYLJ, Aug. 7, 2014, p. 3, col. 3; Michael J. Hutter, "Excited Utterances and the Quest for Reliability in 'Cummings'," NYLJ, June 6, 2018, p. 3, col. 3. Similarly, Supreme Court Judge Arthur M. Diamond has expressed the view that it would be a "mistake" to eliminate or restrict the exception. Arthur M. Diamond, "View from the Bench," 64 Nassau Lawyer 12 (October 2014). Among his concerns is that if the exception were "fixed" along the lines reformers are suggesting would be the loss of 911 recordings as admissible evidence. As he notes: "I think it is beyond question that most calls are legitimate. They are significant pieces of evidence that typically explain the police conduct that follows. Juries deserve to hear it and give it the weight they believe it deserves." Id. at 23.

Direct response to the criticism starts with a study of the exception as applied by the Court of Appeals since its origin. The court has recognized that the admission of a hearsay statement under the exception "deprives the [adverse party] of the right to test the accuracy and trustworthiness of the statement by cross-examination." People v. Brown, 80 N.Y.2d 729, 736 (1993). As a result, while the court has stated that the underlying rationale of the exception can be a basis to overlook the lack of cross-examination, the court has not accepted that rationale with blind faith, but pays only lip service to it. In this regard, the court has historically stressed the need for the trial judge to ensure that the exception's foundation elements are met, lest a statement of questionable reliability is admitted. Establishment of the foundation minimizes the risk of fabrication, as well as misperception.

As Judge Diamond has noted in his article, the foundation elements of the startling nature of the event, the stress placed upon the declarant, the passage time between the event and the statement allow the judge ample discretion to exclude the statement when the Judge concludes the statement is unreliable or untrustworthy. (These foundation elements are thoroughly and thoughtfully explained and discussed in Martin, Capra and Rossi, NY Evidence Handbook [2d ed] §8.3.32; and Breger, Kennedy, Zuccardy and Elkins, NY Law of Domestic Violence [3d ed] §2: 121.) In short, while the rationale for the exception may be questionable, it is the admissibility process when carefully conducted by the trial judge that trumps the underlying rationale.

Judge Rivera's dissenting opinion in Almonte supports this analysis. She concluded that the hearsay statement was erroneously admitted under the exception and that error could not be viewed as harmless. She reached this conclusion after careful review of the proffered foundation for the elements. Almonte, 33 N.Y.3d at 1093-99. This review showed to her the statement in issue "[e]vinced a reflective capacity" that placed the statement outside the ambit of the exception. This conclusion is a very defensible one. More importantly, her discussion shows how questionable statements can be kept out of evidence, namely, as expressed above, by the deft handling of the admissibility issue.

The 'Crawford' Rule

An additional safeguard against the admission of a questionably reliable statement which falls within the ambit of the exception is the Crawford rule, derived from Crawford v. Washington, 541 U.S. 36 (2004) and its progeny as based upon the Sixth Amendment Confrontation Clause. This rule can bar, in a criminal prosecution, a hearsay statement otherwise admissible under a hearsay exception. It provides that a "testimonial statement of a person who does not testify at trial is not admissible against a defendant for the truth of the statement, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination, or the defendant engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability of the witness." Guide to NY Evidence Rule 8.02(1).

A statement is "testimonial" when, as pertinent here, it is "an out-of-court statement in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial; or absent a formal interrogation, the circumstances demonstrate that the 'primary purpose' of an exchange was to procure an out-of-court statement to prove criminal conduct or past events potentially relevant to a later criminal prosecution, or otherwise substitute for trial testimony." Guide to NY Evidence Rule 8.02(2)(b). This rule is designed to protect a criminal defendant's right to cross-examine witnesses who will testify against the defendant.

Under the Crawford rule, the New York courts have precluded admissibility of a hearsay statement under the excited utterance exception when it is deemed "testimonial." (The Breger text cited above contains an excellent discussion of these cases.) Judge Joseph A. Zayas' decision in People v. Allen, 63 Misc.3d 969 (Sup. Ct. Queens Co. 2019) is a thoughtful analysis of the Crawford rule as applied to excited utterances. Although Judge Zayas had little doubt that the hearsay statements in issue were admissible under the exception, he knew as a result of Crawford that such admissibility did not answer the Crawford issue. On the facts before him, Judge Zayas concluded the statements were testimonial, and thus inadmissible, a conclusion reached upon a careful application of the "primary purpose" standard. (Prof. Richard Friedman, the leading academic authority on Crawford, praises Judge Zayas' decision, declaring "it was refreshing" to see his analysis. Friedman, Confrontation Blog.) The clear takeaway from this decision is that the Crawford rule is a check on the admission of suspect statements which otherwise would be admissible under the exception.

As to Judge Posner's expressed doubts about the validity of the underlying rationale for the excited utterance, recent scholarship challenges his conclusions. A member of the Research Division of the Federal Judicial Center, Timothy Lau, prepared a "Review of the Scientific Literature on the Reliability of Present Sense Impressions and Excited Utterances," dated March 5, 2016, for the Center, to aid the Federal Rules of Committee to determine whether Judge Posner's suggestion should be acted on. (The report is available on the Center's website. A more recent discussion of his findings is available in Lau, "Reliability of Excited Utterance Hearsay Evidence," 87 Miss. L.J. 599 (2018).) He analyzed the reliability of excited utterances upon two concerns: the susceptibility to fabrication, and the accuracy of the underlying observation.

As to the former, Lau found that existing research shows that lying requires deliberation, which is made more difficult under stress; and as to the latter, he noted that research supports the conclusion that excitement may impair accuracy of the declarant's observation, but not for the most frequently used purposes of an excited utterance, identify perpetrators of and establish the weapon used in domestic violence cases. In his view, the need for accurate observation in these cases does not seem so high that any decrease in accuracy due to excitement is much of a concern. Lastly, Lau concludes that while issues of reliability remain unresolved, but the need for and feasibility of conducting new experimental studies is questionable.

Lau's comments echo Judge Diamond's comments. They raise a valid point not fully addressed by critics of New York's excited utterance exception. That point is the effect abolition of the exception would have upon the prosecution of domestic violence cases as well as violent felonies. While in the federal courts and most state courts, there is the possibility of admitting a hearsay statement, such as a 911 call or a statement by a domestic violence victim, which does fall within a recognized hearsay exception under the so-called residual exception to the hearsay rule, FRE 807, New York does not recognize such an exception. Guide to NY Evidence Rule 8.01 (1)(c).

The result would be that prosecution of domestic violence and other criminal cases will be greatly hindered, or even, precluded, when the complainant cannot or will not testify as to what happened to him or her. This is a highly undesirable result. In this connection as Lau states: "It is impossible and irresponsible for hearsay reform not to somehow account for domestic violence situations in any suggestion to replace or scrap the [excited utterance] exception." Lau, supra, 87 Miss. L.J. at 640.

Conclusion

A conclusion? The abolition of the exception is simply not justified. Trial judges can certainly be trusted to determine whether the proffered statement is trustworthy by careful consideration of the elements as applied to the statement. The mere possibility that in one case an unreliable statement gets through despite the careful screening of the trial judge and is then heard by the jury does not justify abolition or a radical revision of the exception. This is especially so when the jury has the ability to detect weaknesses in the presentation of the evidence, guided by jury instructions that the evidence be scrutinized carefully.

Michael J. Hutter is a professor of law at Albany Law School and is special counsel to Powers & Santola. He is currently serving as the Reporter to the Guide to NY Evidence as prepared by the Chief Judge's Evidence Guide Committee. The Guide is accessible to the bench and bar at www.courts.state.ny.us/JUDGES/evidence.