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).

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