Judge Refuses To Allow An 'Excited Utterance'

Follows U.S. Supreme Court In 'Crawford'

By By John O. Cunningham
Published: May 24, 2004
An "excited utterance" made by a woman to a police officer about a confrontation with her husband should be excluded from evidence at trial where she was unavailable for cross-examination, a District Court judge has ruled. The commonwealth argued that her statement was admissible under the excited-utterance exception firmly rooted as an exception to the hearsay rule. But Judge Ellen Flatley disagreed, granting the defendant husband's motion in limine to exclude the statement of his wife. Citing the 2004 U.S. Supreme Court decision in Crawford v. Washington, she determined that "the inability to challenge the reliability of the statement by cross examination of the witness deprives the defendant of the fundamental right of confrontation under the Sixth Amendment." The two-page decision is Commonwealth v. Young, Lawyers Weekly No. 16-012-04.

Huge Impact

Randi J. Potash of Lynn, counsel for the defendant, said that she expects this ruling and others to come in the wake of the Crawford case "will have a huge impact on the ability of defense lawyers to challenge the admissibility of testimony." She predicted that defense lawyers would find the ruling particularly important in domestic-violence prosecutions, drug cases or other situations that frequently involve witnesses who make out-of-court statements and are "unavailable" at trial. Potash said the ruling would not swallow the "excited utterance" exception to the hearsay rule, however, she noted that there could still be situations where the declarant of an excited statement might be available for cross-examination. The availability of a declarant at a pre-trial hearing might give adequate opportunity for cross-examination in appropriate cases, she said. "The key is that a defendant cannot be stripped of his right to confront his accusers," Potash stated. She asserted that accusers might have all kinds of ill motives, problems with perception or memory that cannot be tested without cross-examination. Potash argued that Supreme Court Justice Antonin Scalia found the opportunity to confront witnesses to be a critical constitutional right in the Crawford case. She cited Scalia's reasoning that "dispensing with the confrontation clause because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty." David J. Barend of North Attleboro, an appellate criminal defense attorney, said that the recent local decision would significantly change existing practice. "There have been cases allowing excited utterances to come into evidence even when they are made hours after an event," he noted. He asserted that the Crawford decision attacked the flaws in "testimonial hearsay," suggesting that the Supreme Court was most likely aiming criticism at answers given in response to interrogations by police officers. Barend agreed with Potash that the ruling would not completely eliminate the excited utterance exception to hearsay, adding that the Supreme Court "not only refrained from defining 'testimonial' [hearsay] but also refrained from directly referring to excited utterances." But he also suggested that there is an opportunity for lawyers to attack the excited utterance exception at its roots. "A good psychiatrist can prove that the entire premise is wrong because statements made in an excited state are not more reliable," he asserted. "It takes less than a second to concoct a lie and excitement actually distorts perception," Barend added, noting that he is looking for a case to test the evidence rule. Karen Hedison Hopwood of Lynn, assistant district attorney for the commonwealth, could not be reached for comment prior to deadline.

Stopping On The Lynnway

On April 27, 2003, state trooper John White was patrolling the evening shift when a dispatcher advised him that there was a woman complaining of an assault on the Lynnway. The woman, who called the police from her cell phone, was Nadine Young. The trooper spotted her on the northbound side of the Lynnway, and she signaled to him as she ran to meet him. Young was reportedly shaking, trembling and upset as the officer arrived. She reported that she and her husband were traveling in a car on the Lynnway and arguing when he hit her in the face. Young said she jumped out of the car as it was moving, and the commonwealth subsequently brought an action against her husband, defendant Nadue Young. When she invoked a marital privilege not to testify, the defense moved to exclude her out-of-court statements at trial. The commonwealth argued in a motion in limine hearing that her statement given to the trooper was an excited utterance that should be admitted regardless of her availability at trial.

Change In Law

Flatley found that the Crawford decision necessitated a change in practice on admissibility of excited utterances. "Under our prior Massachusetts jurisprudence and our state constitution, the proponent of an excited utterance has not been required to establish the unavailability of the witness before [that] evidence becomes admissible," the judge said. "Before the Crawford case, prior statements of an individual who was unavailable were deemed admissible if they had been determined by a court to have been reliable when made," added Flatley. She noted that in Crawford the unavailable declarant's statements were admitted by a lower state court as reliable. But she said that the Supreme Court clearly disagreed, "concluding that the way to ascertain reliability was by confrontation and cross examination." Flatley acknowledged that the high court did not specifically address the hearsay exception of excited utterance, but she asserted that the rationale for exclusion of statements was similarly based on a constitutional right to confront witnesses. "To the extent that the case alters our longstanding practice, I conclude that this result is required," said the judge. Questions or comments may be directed to the writer at jcunningham@lawyersweekly.com.