holding that statements were excited utterances where “declarants were still visibly in an excited state” and appeared to be “very nervous” and “hopping around”
How later courts described this case
- holding that statements were excited utterances where “declarants were still visibly in an excited state” and appeared to be “very nervous” and “hopping around”
- holding that Officer’s statement over the radio to other Officers that “he had been told there was a guy walking up the street with a gun” was admissible as a present sense impression under FED. R. EVID. 803(1)
- collecting cases and scholarly authority to support its conclusion that "an excited utterance may itself be sufficient to establish that a startling event occurred and that the question whether corroborating evidence independent of the declaration is needed in a given case to establish the occurrence of such an event is committed to the discretion of the trial judge."
- dismissing challenge to a "mere prosecutorial slip of the tongue” where prosecutor’s closing argument included vague statement in half-sentence form that was "immediately corrected with a proper reference”
Written by the judges who cited it.
The opinion
RENDELL, Circuit Judge,
dissenting:
The difficulty I have with the majority’s application of the excited utterance exception to the hearsay rule in this instance stems from the fact that the element of a “startling occasion” has not been independently verified but was, instead, “proven” by the hearsay statement itself. While the majority’s view may be “the majority view,” that does not remove the need for an assessment on a case-by-case basis of the appropriate ruling regarding admissibility. The unique factual setting presented here required a different result.
Here, the defense theory was that officer Hughes had planted the gun. The only evidence that runs counter to that theory is the statement of Officer Hughes, recounting the statement made by the three unidentified males. No other witness saw or heard anything. Officer Hughes’ statement that he then went and saw the defendant waving the gun does not add to the reliability of the hearsay testimony; rather, Hughes’ testimony that he observed Brown with the gun could just as easily be no more than an embellishment of a fabrication. Nor does the finding of the gun itself add any element of reliability, because that fact is just as compatible with the defense theory that the gun was planted as it is with the government’s theory that Brown possessed it.
The reliability problem in the fact pattern presented is thus compounded by the fact that the witness allegedly hearing the *466 statement regarding the purported startling event is the very person whose credibility is under attack. The majority’s stamp of approval on Hughes’ version of events, cloaking it with reliability by ruling it not to be impermissible hearsay, seems to hand the government an unwarranted bonus. 1
We said in Miller v. Keating, 754 F.2d 507 (3d Cir.1985):
The unifying trait of all the Rule 803 exceptions is a circumstantial guarantee of trustworthiness sufficient to justify nonproduction of the declarant, whether available or not. Although Rule 806 cannot be read to confer a right to any particular form of attack on the credibility of a hearsay declarant, it does confer a generalized right that is significantly diminished when the hearsay declarant is not only unavailable, but is also unidentified, and the party against whom the hearsay declarant’s statement is introduced is thus deprived not only of the right to cross-examine, but of any meaningful prospect of finding evidence of inconsistency or bias.
Id. at 510 (footnote omitted). We then noted, as the majority here does concede, that where the declarant is not identified, the party seeking to introduce such a statement carries a “heavier” burden to demonstrate the statement’s “circumstantial trustworthiness.” Id. at 510 .
In Miller , there was no question as to whether the startling occasion occurred. Rather, the issue was whether the proponent of the testimony established the de-clarant’s personal knowledge and the statement’s spontaneity. Id. Here, the issue is whether the gun-waving incident ever really happened and, other than the officer’s self-serving statement that the defendant in fact was holding the gun, there is no evidence that the incident in fact occurred. There is no evidence of “circumstantial trustworthiness,” let alone evidence to satisfy a “heavier” burden. Id. at 511 .
In the circumstances presented here, I would find that Officer Hughes’ testimony concerning the purported statement by the unidentified declarants was insufficient to establish the hearsay statement’s own admissibility. On this record, Hughes’ testimony constitutes “scant[ ]” evidence that the startling event actually occurred; it lacked “sufficient guarantees of trustworthiness” to provide the basis for the admission of the hearsay statement as an excited utterance. Miller, 754 F.2d at 510 .
I think the District Court admitted a hearsay statement that “proved” more than was in fact proven. In a criminal case such as this, where the defense theory seeks to undercut the very trustworthiness of the government’s version of events, we should not admit hearsay that proves the government’s case if the reliability of the statement is questionable. Otherwise, the exception swallows the rule, as, I think, happened here.
*467 Also, the prosecutor’s closing remarks regarding the evidence’s being “uncontested” take on a very different, more prejudicial, quality when unconfirmed yet incontrovertible hearsay is the government’s central evidence in the case.
I do not believe that these errors were harmless, and I would reverse and require a new trial.
For these reasons, I respectfully dissent.
. Although not an "excited utterance” setting, in United States v. Sallins, 993 F.2d 344 (3d Cir.1993), we noted the problem created by the absent government witness. There, a 911 tape describing a black male carrying a gun had been admitted into evidence:
Here, the only admissible evidence linking Sallins to the possession of a gun was circumstantial evidence conveyed through the testimony of Officers Santiago and Howard.... Because the officers’ testimony was hotly contested, we cannot say with any degree of certainty that the evidence of the police radio call and the 911 computer record did not contribute to the jury's verdict. The evidence cemented the government’s case by adding an invisible, presumably disinterested witness who allegedly saw precisely what the police said they saw.
Id. at 348 (emphasis added).