Sixth Circuit Concludes That Excited Utterances Can Be Admitted Despite Conflicting Testimony

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.

As the recent opinion of the Sixth Circuit in United States v. Lundy, 83 F.4th 615 (6th Cir. 2023), makes clear this “excited utterance” exception can apply even in the face of conflicting testimony.

In Lundy, 

Marlon Lundy pulled out a 9-millimeter pistol, chambered a round, and pointed the gun at Alyssa Kirk, the mother of his children. Minutes later, Kirk told the police what happened. An officer recorded her statement on his bodycam, and the government played the recording at Lundy’s trial.

On appeal, Lundy claimed that this statement was improperly admitted as an excited utterance. In rejecting this argument, the Sixth Circuit held that

the district court did not abuse its discretion by finding that Kirk was still under the stress of the event. Kirk said as much. In her words, “My body is shaky…I have adrenaline pumping through me at the second.”…And this court has held that such testimony suffices to prove ongoing stress….True, Officer Martin didn’t think she looked particularly frightened at the time. But Officer Martin later qualified this statement in his trial testimony. There, he explained that Kirk is a repeat domestic violence victim, which could have impacted her reaction. Officer Martin also recognized that Kirk was trying to remain calm in front of her children. Even if Officer Martin hadn’t backed off his earlier statement, Kirk’s and Officer Martin’s conflicting testimony would show—at most—that there were multiple ways to view the evidence. The district court didn’t abuse its discretion in deciding to credit one of them.

Our decision in Biegas is directly on point….Minutes after witnessing a tractor-trailer hit, dismember, and kill his co-worker, Nick Cohen told the driver that he’d told his co-worker to get out of the road….Cohen later testified that he was screaming, crying, and “in a state of shock at the time.”…The truck driver, by contrast, testified that Cohen “seemed happy” and “not agitated.”…Despite the conflicting testimony, we held that the district court didn’t abuse its discretion by admitting Cohen’s out-of-court statement as an excited utterance….Why? Because “[o]nly a few minutes had elapsed following an unusually horrific [incident], and Cohen’s own testimony was that he was in a state of shock.”…So too here.

-CM