Excited Utterances


For every law student and many lawyers, the Rules of Evidence tend to be some of the most confusing areas of trial law. Among that confusion lies “hearsay” and the exceptions to hearsay. The easiest way to explain hearsay is to understand the purpose behind it. A perfect trial would be one where the jury hears 100 percent of the evidence directly from the mouth of the witnesses while they are on the witness stand and being subject to cross examination. Hearsay is simply a statement made prior to a trial by a witness that one of the lawyers wants the jury to hear.

Now, there are statements made by witnesses prior to trial that a jury can hear. These are called hearsay exceptions. Exception #2 is a statement made by someone prior to trial that was startling or stressful. The premise is that the statement is sufficiently reliable and trustworthy that the speaker does not need to put under oath nor subject to cross-examination.

In Ohio, a trial judge needs to decide four factors in ruling if the statement meets this exception:

1. The speaker made his statements spontaneously and without having a chance to reflect

2. Even if the statement was not strictly contemporaneous with the event, not enough time had passed to stop and think about it.

3. The statement is related to the actual event that caused the statement to be made

4. The speaker did, in fact, personally observe the event causing the startling event.

The easiest way to argue this as a lawyer is to simply frame it that the statement was made while the witness was still under the stress of the event and the statement is not the byproduct of reflection and thought.