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Hearsay Exceptions: Present Sense Impressions & Excited Utterances

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Rule 803 sets out twenty-three hearsay exceptions that apply regardless of the declarant’s availability. Two that arise with some frequency in criminal cases are present sense impressions and excited utterances. Here’s what you need to know about those exceptions.

Present Sense Impression. Rule 803(1) provides an exception for “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” The justification for the exception is that the “closeness in time between the event and the declarant’s statement reduces the likelihood of deliberate or conscious misrepresentation.” State v. Morgan, 359 N.C. 131, 154 (2004).

“Describing or Explaining an Event or Condition.” To be admissible under this exception, the statement must describe or explain an event or condition. N.C. R. Evid. 803(1). For example, in State v. Morgan, 359 N.C. 131, 155 (2004), a declarant’s statement to the defendant’s brother that the declarant needed help because the defendant was “tripping” fell within this exception because it explained the defendant’s condition.

Contemporaneous with or Immediately Thereafter. To be admissible under this exception the statement must have been made “while the declarant was perceiving the event or condition, or immediately thereafter.” N.C. R. Evid. 803(1). When the statement is made contemporaneously with the event or condition, this requirement is satisfied. See, e.g., State v. Reid, 322 N.C. 309, 315 (1988) (statement was contemporaneous with event).

There are no rigid rules about the temporal connection between the statement and the event in question. State v. Cummings, 326 N.C. 298, 314 (1990). Statements made within ten minutes of the event or condition have been held admissible. See, e.g., State v. Odom, 316 N.C. 306, 313 (1986) (ten minutes after observing an abduction). But longer or less precise intervals also have been found acceptable. See State v. Morgan, 359 N.C. 131, 155 (2004) (lapse in time was attributable to the ½ mile the declarant had to travel to reach a residence); Cummings, 326 N.C. at 314 (lapse in time was attributable to the amount of time it took the declarant to drive from Willow Springs to Raleigh); State v. Petrick, 186 N.C. App. 597, 602-03 (2007) (event “had just happened”).

A statement is unlikely to fall within this exception when it is made hours or days after the event or condition. See, e.g., State v. Maness, 321 N.C. 454, 459 (1988) (statements made nine days later were inadmissible); State v. Little, 191 N.C. App. 655, 664 (2008) (trial court did not abuse its discretion by excluding statement made at least several hours after the event).

Excited Utterance. Rule 803(2) provides a hearsay exception for “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

Startling Event/Condition. Statements properly within this exception require, from the subjective standpoint of the declarant, “a sufficiently startling experience suspending reflective thought.” State v. Smith, 315 N.C. 76, 86 (1985). An example is being the victim of a crime. See, e.g., State v. Guice, 141 N.C. App.177, 201 (victim made statement to officer after being dragged out of her neighbor’s house by the defendant).

Under Stress Caused by Event/Condition. The statement must be made while the declarant is under the “stress of excitement caused by the event or condition.” N.C. R. Evid. 803(2). This ensures that the statement is “a spontaneous reaction, not one resulting from reflection or fabrication.” State v. Smith, 315 N.C. 76, 86 (1985). Evidence about the declarant’s emotional state can support an inference that he or she was under the influence of the event. Guice, 141 N.C. App at 201 (declarant was crying and having difficulty breathing); State v. Thomas, 119 N.C. App. 708, 714 (1995) (crying and upset).

Because the exception requires that the statement be made while the declarant was still under the stress of the event, there is typically a close temporal nexus between the statement and the event. See, e.g., McLemore, 343 N.C. at 248 (declarant/wife made statement approximately three minutes after she learned that her husband shot his mother). The modern trend, however, is “to consider whether the delay in making the statement provided an opportunity to manufacture or fabricate the statement.” Smith, 315 N.C. at 87 (citation omitted). A useful rule of thumb to apply when considering the temporal connection between the statement and the event or condition is this: “[W]here the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective though process.” 2 Kenneth S. Broun et al., McCormick on Evidence 370 (7th ed. 2013).

When considering the spontaneity of statements made by young children, the courts are more flexible regarding the length of time between the startling event and the statement. Smith, 315 N.C. at 87-90 (1985). Thus, in Smith, for example, the court held that statements by two small children to their grandmother, made two or three days after a sexual assault, were excited utterances. 315 N.C. at 90.

Responses to Questions Not Excluded. The North Carolina courts have rejected the argument that statements made in response to questions lack the necessary spontaneity. See, e.g., In re J.S.B., 183 N.C. App.192, 200 (2007).

Relating to the Event or Condition. The rule requires that the statement “relat[e] to” the startling event or condition. This requirement has not been frequently litigated. However, it appears to be broader than the requirement for a present sense impression. See generally State v. Anthony, 354 N.C. 372, 403 (2001) (shooting victim’s statement to a neighbor, “[t]ake care of my boys,” was admissible under this exception).

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