Question: Can a 911 call get around the Hearsay Rule?
Answer: Yes, when it is an excited utterance.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls under a hearsay exception. If a statement involves hearsay within hearsay, also known as multiple hearsay or double hearsay, the statement may still be admitted if “each layer of hearsay” qualifies under an exception to the hearsay rule. An exception is “excited utterances” which are “statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” and is not excluded by the hearsay rule. To meet the excited utterance exception, three elements must be present: (1) a “startling event or condition” has occurred; (2) the declarant made a statement while under the stress or excitement caused by the event or condition; and (3) the statement was related to the event or condition. This test is not “mechanical” and admissibility turns on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications. The lapse of time is not dispositive, but if a statement is made long after a startling event, it is usually less likely to be an excited utterance. The heart of the inquiry is whether the declarant was incapable of thoughtful reflection.