Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
So, should this excited utterance exception apply to a 911 call about a stolen gun. That was the question addressed by the First Circuit in its recen opinion in United States v. Estes, 2021 WL 128707 (1st Cir. 2021)..
Asks Prof. Colin Miller.
At Estes’s trial for possessing a stolen firearm and being a felon in possession of a firearm, the State played the recording of the 911 call, and Estes was convicted. On appeal, the First Circuit upheld the decision to admit the 911 call, ruling that
Under the “Excited Utterance” exception, a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is admissible. Fed. R. Evid. 803(2). At the time Hutchins placed the call, Estes had recently pointed a loaded gun at her, which is unquestionably a startling event. Although some time had passed, Hutchins was still “under the stress of excitement” for the duration of the call,…especially given that Estes was still nearby with the gun.