Question 1

What distinguishes an excited utterance from a present sense impression?

Accepted Answer

Key distinctions: an excited utterance requires a startling event; a present sense impression (§90.803(1)) does not require a startling event (any event will suffice). An excited utterance must be made while under the stress of excitement; a present sense impression must be made while or immediately after perceiving the event (very narrow time window). An excited utterance can relate to the startling event broadly; a present sense impression must describe or explain the event perceived. Excited utterances can be admitted even after a significant time lapse if the declarant remains under the stress of excitement; present sense impressions require near-contemporaneous timing.

Question 2

Can an excited utterance be made in response to questioning?

Accepted Answer

Yes. Florida courts have held that an excited utterance can be made in response to questioning, provided: the question is non-leading (does not suggest the answer), the declarant is still under the stress of excitement when responding, and the response relates to the startling event. For example, a police officer's question "What happened?" to a domestic violence victim at the scene does not disqualify the victim's response as an excited utterance if the victim is still visibly upset and under the stress of the event. However, statements made during prolonged, detailed police interrogation are less likely to qualify.

Question 3

What is the Confrontation Clause issue with excited utterances?

Accepted Answer

The Sixth Amendment's Confrontation Clause (in criminal cases) requires the defendant to have the opportunity to cross-examine witnesses. After Crawford v. Washington (2004), "testimonial" hearsay cannot be admitted against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Excited utterances made to police in response to emergency situations are generally non-testimonial (Davis v. Washington, 2006) and admissible. However, excited utterances made during police investigation (after the emergency has ended) may be testimonial and subject to Confrontation Clause exclusion.

Hearsay Exception Excited Utterance Statement

Excited Utterance Statements in Florida

vs. Present Sense Impression

Response to Questioning

Confrontation Clause

Related Terms

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