John E. DeVito, Esq., of DeVito and Visconti, P.A.

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Assault and Battery/Domestic Violence Archives

Assault & Battery/ Domestic Violence-Excited Utterance

In assault and battery/domestic violence cases the Commonwealth may attempt to prove their case by an excited utterance, particularly if the victim does not want to proceed against the defendant. Although the excited utterance is an exception to the hearsay rule, it does preclude a defendant from exercising his right of confrontation against the person who made that statement. Therefore, the excited utterance is only valid if it meets certain requirements which the courts have determined allows it to become an exception to the hearsay rule and not subject to confrontation. Commonwealth v. Grant, 418 Mass. 76, 80-81 (1994) provides the rationale for the excited utterance. It is as follows: "the excited utterance exception to the hearsay rule is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self interest could not have been brought fully to bear by recent reflection, the utterance may be taken as particularly trustworthy and may therefore be received as testimony to those facts. The test to determine the admissibility of a statement under the excited utterance exception to the hearsay rule is as follows. The utterance must of been made before the has been time to contrive and misrepresent. The statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its way and to be dissipated. There can be no definite and fixed limit of time. Each case must depend on its own circumstances. The trial judge in determining whether an utterance meets the tests of admissibility ought to be given broad discretion.