Out of Court Statements

SQ Attorneys

SQ Attorneys

In criminal law trials hearsay evidence is generally not allowed unless it falls within an exception to the hearsay rule as provided for under Evidence Rule 801. Recently, however, a Washington appeals court considered whether a victim’s statement to a police officer was appropriately admitted into evidence.

The case involved a couple living together who got into an argument. During the argument one of the parties reached for her cell phone that she had given the other person, the defendant. It was alleged that the defendant, in response, wrapped his arm around the woman’s neck and strangled her. In response, the woman called 911. When law enforcement arrived, the woman described these events to them. Ultimately, based on this information, the defendant was charged with second degree assault by strangulation. And during the course of the case he sought to exclude the woman’s statement to the police. The woman’s testimony at trial was consistent with her statement to the deputy on scene; there wasn’t any significant variation. She also testified that she had called her mother after the incident and her mother came and got her children. The court allowed the deputy to testify about the statements made to him by the woman.

When the parties rested, the jury found the defendant guilty of fourth degree assault – domestic violence. In response, the defendant appealed the verdict. He argued on appeal that the trial court erred when it allowed the deputy to testify about the woman’s statements. The principle basis for his argument was that the statements made by the woman did not qualify as an “excited utterance,” which is an exception to hearsay rule.

As trial attorneys are well aware, excited utterances are an exception to the hearsay exclusion rule (and thus admissible) because it is presumed that the declarant (speaker), when making the statement, is speaking in the moment, under stress, and thus would not misrepresent or otherwise fabricate what happened while still being under that stress. In order to show that a hearsay statement is an “excited utterance”, the party must show there was a startling event or condition at the time the statement was made; the statement must have been made while the speaker was still under the stress of the event, and it must relate to the event. In evaluating whether a statement is an excited utterance, courts consider how much time passed between the event and the statement, as well as the observable amount of stress of the declarant. Obviously if there was a significant amount of time that has passed between the statement and the event then the statement will not fall within the excited utterance exception to hearsay.

In this particular case, the woman spoke to the deputy about 20 to 30 minutes after the incident. The appeals court found this was not a significant amount of time. Especially in light of the fact that the woman was still “hysterical” when she spoke to law enforcement. The defendant had argued that the woman was not still under the stress of the event when she talked to the police because she had left the basement where the event had occurred, called 911, and took care of her children prior to their arrival. The appeals court disagreed because it said the woman’s actions were in line with providing safety for herself and her children and not evidence of any reflective thought. In short, the appeals court found that the woman was still stressed by the event when she made her statements. As a consequence, the statements were admissible into evidence; the statements met the excited utterance exception to the hearsay rule.

Whether there are applicable exceptions to the hearsay rule is determined on a case-by-case basis. Each case is different and unique. This is why it is supremely important to immediately retain a qualified and reputable Seattle domestic violence attorney when arrested and/or cited for domestic violence. The Seattle domestic violence attorneys that make up the criminal defense team of SQ Attorneys are highly qualified and reputable Seattle domestic violence lawyers that are dedicated to providing top notch, aggressive representation for those arrested for crime all across Western Washington and the Greater Puget Sound region. The team creates success by working with law enforcement and the prosecuting attorney’s office to ensure that all facts and circumstances related to the criminal allegations are considered in creating the fairest, most equitable and just resolution possible in light of all the surrounding circumstances of the given case. So, whether cited for domestic violence related assault, malicious mischief, property destruction or some other crime, protect yourself … call SQ Attorneys immediately at 206.441.0900.

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10.0Gregory Wayne Schwesinger
10.0Saad Qamer Qadri