From the Classroom
By: Ray Hill, Professor Emeritus, Santa Rosa J.C.

The Hearsay Evidence Rule – Spontaneous Statements

This is the seventh in a series of bulletins covering the California Evidence Code and criminal investigations. We begin covering the Hearsay Evidence Rule as it relates to an officer, deputy, or investigator giving testimony in court (140 E.C.).

Spontaneous statements are the third most common hearsay exception (1240 E.C.). From your experience, you know this one when you see and hear it!!!

The Legal Foundation for a spontaneous statement is:

1) Excited Utterance - A statement made by a victim or witness "blurted out" after an event likely to arouse the emotions of a reasonable person. A spontaneous statement can be made in response to police questioning as long as the questioning isn't unduly suggestive.

Note: For report writing purposes, describe in detail the event that prompted the excited utterance.

2) Made Close in Time After the Occurrence of a Crime or Incident - The statement is made while the declarant is still "under the influence and stress" of the event, i.e., "to describe actions undertaken without deliberation or reflection" (Peo. v. Farmer (1989) 47 Cal. 3d 899).

Note: For report writing purposes, document the time lapse between the event and the excited utterance and any intervening circumstances, if present.

 3) The Statement Describes What the Declarant Saw or Otherwise Perceived.

 Note: For report writing purposes, it is important to document not only what was said, but how it was said. This includes an opinion on the declarant's emotional or physical state, i.e., crying, hysterical, upset, trembling, fearful, bleeding, in pain, etc. (Opinion Evidence Rule – 800 E.C).

The Test for Trustworthiness for a Spontaneous Statement embodies the theory that a statement made during a state of excitement and close in time to an emotional event or conduct does not provide with the declarant time or opportunity to deliberate, fabricate, or contrive a falsehood. The statement is considered reliable because it represents the true feelings and/or observations of the declarant, i.e., "It Comes from the Heart"). Examples:

• “Declarations made under the immediate influence of the occurrence to which they relate are deemed sufficiently trustworthy to be repeated to the jury. In the stress of nervous excitement, the reflective faculties may be stilled and the utterance becomes a sincere expression of one's actual impressions or beliefs” (Showalter v. Western Pacific Railroad Company (1940) 16 Cal. 2nd 460); “A statement that is offered in a moment of excitement, without the opportunity to reflect on the consequences of one's exclamation may justifiably carry more weight with the trier of fact than a similar statement offered in the relative calm of a courtroom" (White v. Illinois (1992) 502 U.S. 346).

There is a distinction between the type of hearsay produced when a person gives police a spontaneous statement (a “loud cry to be rescued from immediate peril”) and the type of hearsay generated in response to a "structured police interview" (People v. Lee (2004) 124 Cal. App. 4th 483).

 A significant time lapse or "cooling off" period between the event and the utterance could allow for reflection, discussion with others, or otherwise rethink what might have been said in the heat of excitement. This time lapse may negate the Legal Foundation for a Spontaneous Statement. Examples:

• The statement of a calm domestic violence victim taken at the police station hours after the alleged event (Crawford v. Washington (2004) 541 U.S. 36); Police responded to a domestic dispute. The victim (wife) was calmly seated on the front porch. She told officers “everything was fine” and gave a statement later at the police station (Hammon v. Indiana (2006) 547 U.S. 813); The prearranged, videotaped statements taken by a counselor, investigators, and a Deputy District Attorney of 8-year-old and a 4-year-old child molest victims at a facility designated for interviewing abused children (Peo. v. Sisavath (2004) 118 Cal. App. 4th 1396).

Here are some case law examples of Spontaneous Statements. How similar are these examples to statements you have received from victims or witnesses in past investigations?

• During emergency room treatment, a badly burned victim told a doctor that the defendant threw gasoline on him and lit him afire. This statement occurred 30-40 minutes after the crime. The victim died one month later. The statement was still contemporaneous to the event (Peo. v. Jones (1984) 155 Cal. App. 3d 163); 20 minutes after a stabbing, a victim told a sheriff's deputy about the attack. The victim's badly wounded condition and profuse bleeding suggested physical and emotional stress that mitigated any likelihood of reflection and fabrication (Peo. v. Francis (1982) 129 Cal App. 3d 224); Two police officers intervened during a strong-arm robbery at a bus stop. The victim appeared excited and told officers he was afraid the suspects were going to hurt him (Peo. v. Jackson (1986) 177 Cal. App. 3d 711); Officers heard gunshots and arrived immediately after a drive-by shooting. The victim had suffered two, close range wounds and had "blood spewing from his mouth and face". He told officers, "I've just been shot”. “You got the wrong car”. “It was Sharkey from El Sereno" (In re: Anthony O. (1992) 5 Cal. App. 4th 428).
   
• Defendant attempted to smother his 3-month-old stepdaughter with a pillow. After his wife wrenched the pillow from him, he began to beat her. On arrival, officers heard a woman screaming for help and the wife ran outside. She had abrasions on her forearm and neck and told officers what had occurred (Peo. v. Hughey (1987) 194 Cal. App. 3rd 1387); A "good Samaritan" witness heard cries for help from a hearing impaired rape victim. He recognized the defendant as resident in his apartment building and began to chase him. Unsuccessful in overtaking the suspect, the “Samaritan" perspiring and out of breath, took the bleeding and crying victim to the manager's apartment where he stated, "I chased Jeff for two blocks, but couldn't catch him". The "Samaritan" could not later be located for trial. The apartment manager testified to his statements (Peo. v. Maxwell (1989) 206 Cal. App. 3d 1006); Minutes after the incident, while accompanying a shooting victim to the hospital in an ambulance, a firefighter asked the victim who shot him? Victim responded, “John Paul” (Peo. v. Nelson (2010) 51 Cal. App. 4th 196).
   
• Defendant committed a "hot prowl" entry of a residence and molested a 4-year-old victim. Victim told her baby-sitter (minutes after he responded to her screams), her mother (within 30 minutes), a police officer (45 minutes later), and an attending physician and nurse at the hospital (four hours later) that the defendant had sexually assaulted her (White v. Illinois (1992) 502 U.S. 846); A victim called “9-1-1” to report she had been assaulted by her boyfriend. Officers arrived within four minutes and observed the victim in a shaken state with “fresh injuries on her forearm and face”. She was engaged in “frantic efforts to gather her belongings and her children so they could leave the residence” (Davis v. Washington (2006) 547 U.S. 813).
   
• Defendant was convicted of aggravated assault after cutting her son’s face with a piece of broken glass. Within an hour, while being treated at the hospital, the victim told a doctor about the incident. (Peo. v. Cage (2004 40 Cal. 4th 965); Defendant’s wife called “9-1-1” to report that her husband had shot her and “she had to get away with her little goddaughter”. She also stated, “I think I’m going to have a heart attack” (Peo. v. Johnson (2010) 185 Cal. App. 4th 520).

• ​​​​In a 1989 Sonoma County murder case, defendant was convicted of killing his wife, his two daughters, his mother-in-law, his two nieces, and a co-worker, and the attempted murder of his third daughter and another co-worker all on the same day. Defendant had taken his three daughters to a Petaluma refuse site, slit their throats, and left them for dead. The third daughter Carmina, age 2-1/2-years, remarkably survived the attack. After laying for hours looking at her two dead sisters, Carmina was found by a citizen. Carmina told him, "Daddy, cut me!!" The same statement was repeated to an emergency room physician. These spontaneous statements were admissible because of the age of the victim, her isolated location, and incapacity for "changing a statement" (Peo. v. Salcedo (2008) 44 Cal. 4th 93).
   
• In a Sonoma County murder case in the Russian River area, a 2-year-old child's utterances made in a hysterical manner were spontaneous. When the child had the opportunity to be away from the presence of her father (defendant), she told others, "Daddy and mommy had a big, big, fight", "Daddy punched mommy in the nose and she fell on the floor", "Daddy cut mommy with a knife", "He cut mommy's feet off" and "Mommy just laid there". Despite the passage of two days, these statements were made under the monumental stress of witnessing her mother’s murder and while the child’s reflective powers were still in abeyance. The child had been sequestered in a cabin with her father in whom she obviously could not confide (Peo. v. Trimble (1992) 16 Cal. App. 4th 1255).

Statements describing one's state of mind, emotion, or physical sensation are admissible under Statements of a Declarant's Mental or Physical State (1250 E.C.). These include a complaint or description of pain, a response to pain such as screaming, groaning, or crying, a statement of bodily health, or an expression of fear by a potential crime victim. Examples:

• A crying, domestic violence victim called "9-1-1" from a convenience store reporting that she had been assaulted. The victim told officers the defendant got mad, wrestled her to the floor, and hit her eight times in the face. The victim’s eyes were swollen and bruised and her left shoulder was scratched and red. The officer could testify to the statements describing the infliction of physical injury because they were narrated firsthand and close in time to the incident (Peo. v. Hernandez (1998) 19 Cal. 4th 837).

What if a suspect comes up to you in the “heat of excitement” and blurts out an incriminating statement? This an Admission or Confession and can be repeated by you in court as hearsay (1220 E.C.). No custody or no questions - No Miranda! Consider a spontaneous statement as much as evidence as a body-worn camera recording, recovered stolen property, a firearm used in a serious felony, or bloodstains at a crime scene!

Whether the victim/witness is unavailable to testify, there is a need to impeach an inconsistent statement from one that was previously given, or for rehabilitation or corroboration of victim/witness testimony, you are permitted to testify to what the victim or witness told you for the proof of the matter asserted!

Next Up – Dying Declarations.

Stay Safe,

RH