You are defending a Father accused of child abuse.  Social Services has brought a case against him based on the fact that he burned his son with coffee at breakfast one morning.  Social services has the evidence of the burn marks, the medical reports, and the reporting doctor’s statements.

Before you sits several out of court statements that you want to offer into evidence for their truth. (Meaning the relevance of the statement lies in the fact finder believing it.) These statements turn your client’s story from one of abusive father into a tale of accidental harm.  They not considered “not hearsay” under F.R.E. 801(d), so you have Hearsay statements  potentially barred by F.R.E. 802.  In order to best defend your client, you have to get these statements in.

There are underlying rules having to deal with competency that play into the introduction of witness testimony, but this article is only exploring the Hearsay exceptions. During my practice there have been an alarming number of times I have had clients tell me “I don’t have it in writing” as if that put an end to the potential admissibility of their experiences.

The things a person hears, tastes, smells, touches, see, can be admissible as evidence in the  courtroom. As a matter of fact, in reality, witness testimony makes up the majority of the evidence offered at a hearing or trial.  Further, even though a statement or conversation may be in writing, it doesn’t necessarily make it more reliable or less of a Hearsay problem than a verbal statement (unless it becomes an 801 exclusion.)

While you are analyzing your clients statements below, keep in mind two things:

To begin with, the primary reason we have so many exceptions to the Hearsay Rule:

There are circumstances indicating that the out-of-court statement is reliable, this eliminating to some extent the need for cross examination. (The statement has an “indicia of reliability”).

Also, keep in mind that Crawford v. Washington applies a stricter reading of the Confrontation Clause in criminal cases, causing some of these exception to require a higher level of scrutiny in order to meet the Defendant’s right to confront witnesses against him/her.  As you are defending this case, you will be arguing Crawford whenever there is potential Hearsay evidence from the other side. (While Dependency and Neglect cases in Colorado are not criminal in nature, the Defendant’s often get criminal level protections because of the seriousness of the potential results.)

You are reviewing your file and find the following:

Mom is sitting at the table eating breakfast with Son.  Dad walks into the room with his breakfast and coffee.  When he walks past Son, his coffee cup begins to tip. Mom says “Careful! That coffee is going to spill!” 

Mom is describing an event as it is happening.  She is witnessing the event as it occurs and commenting on it.

F.R.E. 803(1) Present Sense Impression

A present sense impression is a hearsay statement describing or explaining something as it is being experienced, or immediately following the experience.

Therefore Mom’s statement would likely be admissible to prove the coffee was going to spill.  This could be relevant to show that Dad was unaware of the spill, or at least potentially unaware of it, and that the spill was likely accidental, making it highly relevant to your defense.

Startled by Mom’s warning, Dad jerks a little, causing the coffee to spill out of his mug and onto Son’s head.  Son shouts “OUCH DAD! That coffee is really, really hot!”. 

Son’s statement was made while the startling event, being hit in the head with hot coffee, was occurring.

F.R.E. 803(2) Excited Utterance

An excited utterance is a spontaneous statement relating to a startling event. The statement has to be made while the speaker (the declarant) is under the stress or excitement of the event.

Therefore Son’s statement could be offered to prove both that the coffee was hot when it spilled, and that it hurt or caused him pain when it spilled.  This statement is likely going to be offered by the opposing side to show that Dad did spill the coffee on Son’s head, causing him harm.  You can choose to object using Hearsay, but given the circumstances you may just want to allow the statement in without causing an objection.  In making your determination, consider whether breaking up the flow of the story at that time of the hearing is really valuable to you or not. Also, consider whether you can question Dad or Son about the incident more effectively with this statement in.

“Damn” Dad says, “I’m sorry son, I didn’t mean to do that. Are you all right?” Dad said as he set his breakfast on the table and quickly checked Son out. “Oh no, I think you might be burned, let’s get you to the hospital.” 

Dad’s first statement indicates his intent at the time the coffee spilled.  He didn’t mean to spill the coffee on Son.  His second statement shows an intent to seek medical treatment for Son.

F.R.E. 803(3) Then existing mental, emotional, or physical condition.

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition. (Excepting statements of memory or belief, unless those are made regarding testamentary issues).  This exception can include statements made as to intent, plan, motive, design, mental feeling, pain, and bodily health.

Dad’s statements can be offered to show he didn’t intend to harm son, that the spill was accidental, and that Dad immediately intended to get medical help for Son.  Son’s statement of pain above can also be offered under this exception, as a statement of physical condition.

All three of these above exceptions have a recency in time element to them.  They must occur within specific time frames.

A present sense impression has to be made almost immediately after perceiving the event, or during it.

An excited utterance can be made later, so long as the stress of the event is still ongoing.  A favorite example for law professors is a coma patient whose coma was induced during a car accident.  If the patient wakes up six years later screaming “WATCH OUT! He’s going to run the light!” that statement can still be offered as an excited utterance.

The 803(3) exception has to be made concurrently enough with the experience that it is not a statement of memory or belief.  It has to relate to a present condition of some kind.

At the hospital, Son and Dad see the doctor.  When asked why they are there, Son responds with “My dad poured hot coffee all over my head.” Dad doesn’t reply.  Doctor examines Son, finds the burns, and reports potential child abuse. 

F.R.E. 803(4) Statements made for purpose of medical diagnosis

An out-of-court statement made to a medical provider for the purpose of receiving treatment.

Son’s statement can be offered into evidence under this exception because he made it to let the doctor know why they were in the hospital seeking medical care.  Dad’s silence can also be offered here, under the argument that anyone who hadn’t intentionally poured coffee down their child’s head would reply with some sort of objection to the phrasing of Son’s statement, such as “it was an accident.”

It is important to remember that the statements made during or immediately after events can be incredibly helpful in telling the full story surrounding your case.  While physical or tangible evidence is attractive, it shares many of the same reliability issues that Hearsay Statements do.  Further, letting your client tell their story can often allow the fact finder time to empathize and even identify with them.