Sometimes one of the key pieces of evidence in your case is hearsay. Perhaps it is an admission by the defendant or the defendant’s agent. It may be testimony from another trial or hearing that directly addresses an issue in your case. Whatever the situation, if you need to offer an extrajudicial statement as evidence of the truth of the matter asserted in the statement itself, you have a problem on your hands.
But like a flat tire in the rain, it may not be an insurmountable problem. However, it’s still a problem, which means you need to plan your solution well in advance to implement it. Therefore, when planning your case in chief, consider whether you could benefit from the spontaneous statement hearsay exception. Let me give you an example.
The first case I tried to a jury was actually decided on a spontaneous statement by an unavailable hearsay affiant. I won that lawsuit because I recognized my hearsay problem early enough to successfully implement my solution.
He was prosecuting a misdemeanor domestic violence case. The defendant was a 6-foot-5-inch-tall, 275-pound thug. The victim was his five-foot-tall, 90-pound wife. They were camping at the San Elijo beach camp, and he struck her with a clenched fist right into her eye socket, producing a noticeable glow.
The next morning, a park ranger approached the couple. When he noticed the wife’s eyes, he asked her, “What happened?” Suddenly, he was visibly upset as if he was reliving the events of the previous night. Tears well up in his eyes. She then pointed at her husband and dramatically blurred: “She hit me!”
One of the social realities of trying domestic violence cases is that victims find themselves in a vicious conflict of interest. On the one hand, they want their abusers to be incarcerated so that they are free from physical abuse. But on the other hand, they may be financially dependent on their abusers and therefore imprisonment would be extremely inconvenient for the household. They also fear retaliation. This leads to a phenomenon commonly known as “the recanting witness” or “the recalcitrant victim” or “absentee victim.”
Naturally, when the trial came, the wife was “unavailable.” She dodged my subpoenas, she slipped into the web of battered women and homeless shelters, and she left. That meant my star witness would be the park ranger who had to testify about what she said, which was just a rumour.
Enter the spontaneous statement, also known as the exit statement.
Evidence Code §1240 states that a statement is not an impermissible hearsay if it is “purported to narrate, describe, or explain a perceived act, condition, or event” and was made “spontaneously while the declarant was under the stress of arousal caused by such perception.” “. .”
The case law states that for the exception to apply, there must be (1) an occurrence that begins sufficiently to produce “nervous excitement and render the expression spontaneous and thoughtless”; (2) the expression must have been made before there was time for “devising and twisting”, that is, while nervous excitement still overpowered the reflective powers; and (3) “the expression must relate to the circumstances of the event that caused it.” people vs. Poggi (1988) 45 Cal.3d 306, 318. The idea is that statements made in the heat of the moment are less likely to be false.
The admissibility of spontaneous statements is a matter at the discretion of the trial court. people vs. Pear (1991) 229 Cal.App. 3d 1282, 1290. Often the main issue, as it was in my domestic violence case, is a time lag between the event and the statement. But the key is that the statement must be made under the stress and emotion of the event “while the reflective powers were still in abeyance.” people vs. Washington (1969) 71 Cal.2d 1170, 1176.
For example, the statements in Washington were made an hour after the fact, but were nevertheless admissible. See also People v. Raley (1992) 2 Cal.4th 870, 893 (18 hour timeslot); and In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 (2 day time gap). However, in one case, the court found that 13 hours between the initial event and the statement was too long for the exception to apply. Parch, supra, 229 Cal.App.3d at 1290.
There is no clear rule about the time of the event and the statement. The distinction seems to be whether the declarer was still under the stress of the event. In my domestic violence case, for example, the court was convinced that the victim was under the stress of the assault because she became irritated and seemed to be reliving the assault when she identified her husband as her abuser. He was also standing right behind her when the park ranger asked “what happened?”
The spontaneous expression exception is not limited to oral testimony. Affidavits or declarations may also contain hearsay admitted by the exception. Mech v. Picchi (1966) 245 Cal.App.2d 470.
If you plan to give an impromptu statement at trial, make sure you have all the necessary witnesses to lay the groundwork. For example, be sure to call the person who heard the statement. Also, be sure to call the person who can testify to the affiant’s state of mind, meaning that the affiant was excited and under stress from the event.
Finally, be sure to consider all other possible exceptions, such as contemporaneous statements (Evidence Code §1241); statements relating to the infliction or threat of bodily harm (Evidence Code §1370); statements from an elder or dependent adult victim of abuse (Evidence Code §1380); admissions (Evidence Code §1220); declarations of death (Evid. Code §1242); statements of mood, emotion, or physical sensation (Evid. Code §1250); statement against interest (Evid. Code §1230); or inconsistent prior statements (Evidence Code §1235).
If you know your case hinges on a spontaneous statement, or any hearsay exception, plan ahead. Try to get your opponent’s stipulation as to admissibility, or subpoena all substantiating witnesses, request an Evidence Code §402 hearing, and/or file motions in limine as necessary. Whatever the case, be proactive about getting your evidence admitted, especially if you can anticipate an objection.