Hearsay Exceptions: Here to Stay

U.S. v. Boyce | 13-1087

March 2014

As discussed in Boyce, the “excited utterance” and “present sense impression” exceptions to the hearsay rule are alive and well in the Seventh Circuit . . . for now.Boyce involved the admission into evidence of statements made by a woman to a 911 dispatcher stating that the defendant had just hit her and that he had a gun.  The call came in a few minutes after the incident, and after the woman went to a neighbor’s apartment. Meanwhile, the statement that the defendant had a gun – crucial to the felon-in-possession charge the defendant was facing – came only in response to a question about weapons from the dispatcher.  The statements were recorded, and the government decided to prove its case by introducing the recordings, instead of calling the woman to testify that she saw the defendant with a gun.  The district court allowed the statements into evidence and the Seventh Circuit affirmed. The case is interesting enough for the contortions the Court undertook to fit these statements within the ambit of the hearsay exceptions.  But it is even more interesting for the fact that the Court permitted the introduction of hearsay evidence under these “well-established” hearsay exceptions despite the fact that all three judges believe that the rationale justifying the exceptions “has neither a theoretical nor an empirical basis” (referencing various psychological studies) and is hard to take seriously. The Seventh Circuit cannot overturn the Federal Rules of Evidence based on lack of empirical social science support.  But it can when the constitutional right to confrontation demands.  And what should not get lost in the Court’s citations to psychological studies and reports is the simple fact that it was entirely unnecessary in this case to rely on hearsay.  Had the government chosen to call the woman to the stand, she could have testified to exactly what she saw without resorting to any hearsay – and without infringing on the defendant’s right to confrontation. The majority states that it declined to consider overturning the rules because, while Boyce noted these psychological studies, he “did not ask” that the Court find the exceptions “utterly invalid.”  Duly noted.  Trial attorneys: the next time the government elects to rely on an excited utterance when the witness is alive and well and able to testify, look to Boyce and complete the “ask.”   The right to confrontation should not take a backseat to unjustifiable, demonstrably false and archaic psychoanalysis.