--- title: "Excited Utterance (FRE 803-2)" type: Legal Rule source: https://casebriefly.com/legal-rules/excited-utterance-fre-803-2 --- # Excited Utterance (FRE 803-2) A statement relating to a startling event or condition, made while the declarant was still under the stress of excitement caused by the event, is admissible regardless of declarant availability. The stress of excitement is believed to override the capacity for fabrication. ## Definition Federal Rule of Evidence 803(2) provides a hearsay exception for excited utterances — statements relating to a startling event or condition made while the declarant was under the stress of excitement that the event or condition caused. Like the present sense impression, the declarant's availability as a witness is immaterial. The rationale is that the excitement produced by a startling event temporarily stills the capacity for reflection, making it unlikely that the declarant would fabricate a statement while in that state. Three requirements must be met. First, there must be a startling event or condition — something sufficiently dramatic to produce nervous excitement. Second, the statement must be made while the declarant is still under the stress of the excitement caused by the event. Third, the statement must relate to the startling event or condition. Unlike the present sense impression, the statement need not describe or explain the event; it need only relate to it, which is a broader standard. The timing element is more flexible than the present sense impression. The key question is not how much time has elapsed but whether the declarant was still under the stress of excitement when the statement was made. Courts have admitted statements made minutes, hours, or even longer after the event if the declarant remained in an excited state. Factors courts consider include the nature of the event, the time elapsed, the declarant's age and condition, intervening events, and whether the statement was in response to questioning. However, a statement made after the declarant has had time to reflect and calm down will not qualify, even if relatively close in time. The exception is frequently applied to statements by victims of violent crimes, accident witnesses, and young children. ## Elements - A startling event or condition occurred - The declarant personally perceived or experienced the startling event - The statement was made while the declarant was still under the stress of excitement caused by the event - The statement relates to the startling event or condition - The declarant's availability as a witness is immaterial ## Key Case United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980) ## Landmark Cases | Name | Citation | Significance | | --- | --- | --- | | United States v. Iron Shell | 633 F.2d 77 (8th Cir. 1980) | Established the widely used analytical framework for excited utterances, articulating the factors courts should consider in determining whether the declarant was still under the stress of excitement. | | United States v. Arnold | 486 F.3d 177 (6th Cir. 2007) | Addressed the admissibility of 911 calls as excited utterances, analyzing the transition point between an ongoing emergency and retrospective narration. | | People v. Marks | 6 N.Y.3d 1 (2005) | Considered the interaction between excited utterances and the Confrontation Clause after Crawford, holding that some excited utterances may be testimonial. | | Idaho v. Wright | 497 U.S. 805 (1990) | While primarily about the residual exception, the case discussed the reliability considerations underlying spontaneous statement exceptions like excited utterances. | ## Exam Tips - Focus on whether the declarant was still under the stress of excitement — this is the critical question, not merely how much time elapsed. - Remember that 'relating to' the startling event is broader than 'describing or explaining' it (which is the present sense impression standard). The statement just needs to be connected to the event. - On exams, consider whether questioning by police or others broke the excitement — a response to calm, deliberate questioning may suggest the declarant had time to reflect. - After Crawford, always check whether the excited utterance is also testimonial — if so, the Confrontation Clause may bar its admission in criminal cases. ## Common Mistakes - Treating the time gap as dispositive — what matters is whether the declarant was still excited, not simply how much time passed. Hours-later statements can qualify if excitement persisted. - Assuming all excited utterances are non-testimonial after Crawford — a statement made to police that is primarily designed to establish past facts may be testimonial even if made excitedly. - Forgetting that the declarant must have personally perceived the startling event — a statement about something the declarant only heard about from others does not qualify. ## Mnemonic Or Memory Aid Excited Utterance = 'Still Shaken, Still Speaking.' The declarant must still be under the grip of the startling event's excitement. ## Related Rules - present-sense-impression-fre-803-1 - hearsay-rule-and-definition-fre-801 - confrontation-clause-crawford-doctrine - then-existing-mental-or-emotional-condition-fre-803-3 --- Source: [Excited Utterance (FRE 803-2) — CaseBriefly](https://casebriefly.com/legal-rules/excited-utterance-fre-803-2)