Paralegal Certification PrepLitigationHard
A paralegal is assisting an attorney with a civil lawsuit where the plaintiff was injured due to a defective product. During the trial, the attorney wants to introduce testimony from a witness who saw the plaintiff using the product immediately before the accident and heard the plaintiff exclaim, 'This thing just broke!' The attorney argues this statement is admissible. Under which exception to the hearsay rule might this statement be allowed?
- AStatement Against Interest (FRE 804(b)(3))
- BBusiness Records Exception (FRE 803(6))
- CPrior Consistent Statement (FRE 801(d)(1)(B))
- DExcited Utterance (FRE 803(2))
Show answer & explanationAnswer & explanation
Correct answer: D. Excited Utterance (FRE 803(2))
An 'Excited Utterance' (FRE 803(2)) is a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. The plaintiff's exclamation immediately after the product broke and caused injury fits this exception, as it was made under the stress of a startling event.
Why the other options are wrong
- A. A Statement Against Interest requires the declarant to be unavailable and the statement to be so contrary to their interests that a reasonable person would not have made it unless true.
- B. The Business Records Exception applies to records kept in the course of a regularly conducted business activity, not spontaneous exclamations.
- C. A Prior Consistent Statement is used to rehabilitate a witness whose credibility has been attacked, not to introduce a spontaneous declaration from an event.
Excited Utterance (FRE 803(2))
An exception to the hearsay rule for a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
- Requires a startling event
- Statement must 'relate' to the event
- Made while under the 'stress of excitement'
- Declarant's availability is immaterial
Memory trick: PRESENT Sense, EXCITED Utterance, RECORDS, and then the REST.