In trial involving aggravated sexual abuse of a child, the victim’s statements to a physician’s assistant made “three years after the first alleged instance of abuse, and roughly a week after the most recent abuse” were not admissible as excited utterances under FRE 803(2), in United States v. Kenyon, 481 F.3d 1054 (8th Cir. Apr. 9, 2007) (No. 06-1693)
The excited utterance hearsay exception codified in FRE 803(2) is founded on the assumption that reliability of a statement is increased when the statement is direct effect of an exciting event or condition. Under the demands of the excitement, one might expect there is little reason for the hearsay declarant to lie. see ACN 803(2). From this simple assumption of reliability has come a variety of factors that the courts use in applying FRE 803(2). Generally these are non-exclusive factors -- no single one is determinative and frequently the analysis involved in considering one factor may run into other factors. In a case that the Eighth Circuit considered several years ago, the court was able to perform a comparative analysis of excited utterance cases in an effort to determine if the proffered statement was made "under the stress of excitement," which would qualify it for admission as an excited utterance.
In the case, the victim, a minor girl was in the legal custody of a man and woman. The defendant, the man, was the common law husband of one of the woman’s daughters. The minor stayed at the daughter’s residence about twice a month for three years, during which the defendant committed the alleged sexual abuse. In his first trial, the defendant was convicted by the jury on three counts of aggravated sexual abuse and two counts of abusive sexual contact. However, the convictions were reversed by the Circuit after concluding that hearsay testimony of a physician’s assistant about statements made by the victim were inadmissible and not harmless error. United States v. Kenyon, 397 F.3d 1071 (8th Cir. 2005) (“Kenyon I”) (reversing convictions based on the erroneous admission of hearsay testimony)
In the defendant's second trial, he was again convicted by the jury of four counts of aggravated sexual abuse of a child. At trial this time, the minor testified as well as the physician’s assistant, whose testimony had led to error in the first trial. The physician's assistant in the second trial that during her interview with the victim, the minor “spontaneously said, ‘I need to talk to you about something really bad.’” Kenyon, 481 F.3d at 1062. During other testimony, the physician’s assistant stated that when the minor “returned to her two guardians," after the interview with the witness, the victim "‘started to cry real hard and [said], “[P]lease don’t be mad at me for not telling.”’” Kenyon, 481 F.3d at 1062.
The trial judge admitted these statements over defense objection as admissible under the excited utterance exception of FRE 803(2). After his conviction, the defendant sought review again, contending in part, that another hearsay problem occurred in applying the excited utterance hearsay exception.
The Eighth Circuit agreed with the defendant that the challenged the statements were not admissible under FRE 803(2). The circuit noted that because the minor’s statements to the physician’s assistant were made “three years after the first alleged instance of abuse, and roughly a week after the most recent abuse,” the statements could not satisfy the requirement that they be made while the minor “was still under the stress or excitement caused by a startling event when she made the disputed statements.” Kenyon, 481 F.3d at 1062-63.
The circuit considedred a number of non-dispositive factors in “determine[ing] whether a declarant was still under the stress of a startling event” as required by FRE 803(2). This included “the amount of time that has elapsed since the event and whether the declarant’s stress or excitement was continuous from the time of the event until the time of the statements.” Kenyon, 481 F.3d at 1062 (citing United States v. Marrowbone, 211 F.3d 452, 455 (8th Cir. 2000) (noting factors); Reed v. Thalacker, 198 F.3d 1058, 1061 (8th Cir. 1999) (“We recognize that the lapse of time between the startling event and the statement is not always dispositive in determining whether testimony should be admitted under the excited utterance exception.”)).
The Eighth Circuit compared the facts in Kenyon with other opinions regarding the admissibility of a minor’s statement under the excited utterance exception. Both cases closely examined the time of the exciting event and its effect on the victim:
- Reed v. Thalacker, 198 F.3d 1058, 1061-2 (8th Cir. 1999) (Two year-old child’s statement of abuse allegation of abuse made within forty-eight hours of the alleged abuse was not admissible under the excited utterance exception to the Confrontation Clause, primarily because the lapse of time was insufficiently close to the making of the hearsay statement, despite other authority in which “[w]e reasoned that a two year-old’s ‘excited’ recollection of an event that occurred days or even months earlier was not ‘so inherently trustworthy’ as to fall within the exception.”) (citations omitted)
- United States v. Marrowbone, 211 F.3d 452, 455 (8th Cir. 2000) (teenager abuse allegations made only three hours after the incident were inadmissible as an excited utterance due to the lapse of time)
- United States v. Iron Shell, 633 F.2d 77, 86-87 (8th Cir. 1980) (in a “close question,” admitting nine year-old girl’s statements “forty-five to seventy-five minutes” after a sexual assault as an excited utterance was not an abuse of discretion)
Of course, time is not the only factor to be considered when assessing FRE 803(2) evidence. In the Eighth Circuit, the court has noted several factors that a trial judge may use to determine whether a declarant made a statement “under the stress of excitement.” These other factors include:
- The lapse of time between the startling event and the statements
- Whether the statements were made in response to an inquiry
- The age of the declarant
- The characteristics of the exciting event described in the statement
- The declarant’s physical and mental condition at the time of making he statement
- The subject matter of the statements
In this second go-around in Kenyon, the circuit concluded the error was harmless, as it was essentially cumulative and “provide[d] little support for [minor] A.L.’s credibility.” Kenyon, 481 F.3d at 1063 (citing United States v. Iron Shell, 633 F.2d 77, 86-87 (8th Cir. 1980) (noting cumulative statements are harmless))
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