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38. Is the testimony of the witness concerning the victim's statement admissible?
A defendant was charged with aggravated assault. At trial, the victim testified that the defendant beat her savagely, but she was not asked about anything said during the incident. The prosecutor then called a witness to testify that when the beating stopped, the victim screamed: «I'm dying—don't let [the defendant] get away with it!»
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In a prosecution for homicide or civil action, a statement made by the now-unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible. Fed. R. Evid. 804(b)(2). The declarant need not actually die, but he must be unavailable at the time the statement is offered. Under the traditional view, only followed by some states, the statement was admissible only in homicide prosecutions (not civil actions) and then only if the declarant had died.
A declaration made by a declarant during or soon after a startling event is admissible as an exception to the hearsay rule. The declaration must be made under the stress of excitement produced by the startling event. The declaration must concern the immediate facts of the startling occurrence. Fed. R. Evid. 803(2).
D is correct. The testimony here is being offered for the truth of the matter asserted — that the perpetrator was the defendant, harming the victim. However, it is admissible Under FRE 803(2), which allows a hearsay statement that would otherwise be barred under FRE 802 to be admissible when the statement «relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.» In this case, the assault was a startling event, and the victim made the statement immediately after the beating, trying to identify the perpetrator. Thus, all the admissibility requirements of Rule 803(2), the excited utterance exception, are met.
A is incorrect. Even though the proffered testimony would otherwise be inadmissible hearsay under FRE 802, it satisfies all the requirements of the excited utterance exception and is therefore admissible. Fed. R. Evid. 803(2).
B is incorrect. For the hearsay exceptions in FRE 803, there is no requirement that the declarant is made available to testify. In this case, the victim's statement would have been admissible even if she had not been available at trial. There is no requirement that she be asked about the hearsay statement.
C is incorrect. While the declarant does not have to die for a statement to be admissible as a dying declaration under FRE 804(b)(2), this statement fails to satisfy that exception for at least two reasons. First, the declarant has to be unavailable, because the dying declaration is one of the «unavailability-dependent» exceptions of FRE 804. Here, the victim testified and thus is not unavailable. Second, a dying declaration is admissible only in homicide prosecutions and civil cases. This is a criminal case for aggravated assault.