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In this case, a man was convicted of domestic battery for injuring his girlfriend. At trial, the defendant's girlfriend did not testify, so his conviction was based largely upon the testimony of the officer who interviewed the girlfriend after the incident. The officer testified that the woman was disoriented, crying, without shoes, and almost ran to him in her attempt to find help and told the officer that the defendant had "pushed her down and hit her on her face."

On appeal, the defendant argued that the trial court had erred in admitting this testimony as an excited utterance because "[t]he emergency had passed," and she therefore "had time and opportunity to reflect and deliberate regarding her statements to the deputy." The Court disagreed. The Court agreed that a statement's remoteness in time from a startling event was a factor that should be considered when determining whether a particular statement was an excited utterance. However, the Court held that the proponent of a statement did not need to demonstrate that the statement was proximate in time to the startling event in order for it to be admissible as an excited utterance.


A lesson to be learned, therefore, is that any party who wants to keep an allegedly excited utterance out of evidence needs to establish a timeline to demonstrate that the statement was so remote in time that it cannot reliably be said to have been made under the excitement of the startling event. Failing to do so invites reliance on the more nebulous factors regarding the appearance and presentation of the declarant, which the Court demonstrated in this case.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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