Bar Exam — MBE (Multistate Bar Exam)EvidenceEasy
During a murder trial, the prosecutor calls a police officer to testify. The officer states that while investigating the crime scene, she overheard a bystander, moments after discovering the victim, exclaim, 'Oh my God, he's been shot!' The defense attorney objects to this testimony as hearsay. How should the court rule?
- AOverruled, because the statement is a present sense impression.
- BOverruled, because the statement is an excited utterance.
- CSustained, because the bystander is not available for cross-examination.
- DSustained, because the bystander's statement is out-of-court and offered for the truth of the matter asserted.
Show answer & explanationAnswer & explanation
Correct answer: B. Overruled, because the statement is an excited utterance.
The bystander's statement qualifies as an excited utterance because it was made under the stress of a startling event and relates to that event. This is a recognized exception to the hearsay rule.
Why the other options are wrong
- A. A present sense impression requires the statement to describe or explain an event or condition while or immediately after perceiving it, but 'Oh my God, he's been shot!' suggests more of an emotional reaction to a startling event rather than a mere description, making excited utterance a better fit.
- C. Availability of the declarant is not required for the excited utterance exception.
- D. While it is hearsay, an exception applies, making it admissible.
Excited Utterance
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
- Hearsay exception under FRE 803(2).
- Declarant's availability is immaterial.
- Must be spontaneous and made under the immediate influence of the startling event.
Memory trick: Hearsay's exceptions: Some People Really Do Care About Getting Medical Help For Injured Kids.