Excited Utterances Cannot Come Two Years Later

State v. Ramirez-Estevez (2011)

A girl’s statements she was raped two or three years earlier may not be admitted in evidence as excited utterances. That is so even if the girl was obviously distressed when she spoke by the memory of the rapes. So said the Washington Court of Appeals in State v. Ramirez-Estevez, 2011 WL 4829692 (Dkt 40226-2-II, 10/12/2011). The convictions in the case were affirmed, though, on the basis of harmless error.

According to the evidence at trial, Ramirez-Estevez repeatedly raped the girl while living with her family. Two or three years after the rapes, when the girl was in sixth grade, she reported them to several people. During her reports she was crying and shaking. The trial court admitted the reports in evidence as excited utterances.

The excited utterance rule allows out-of-court statements to be admitted in evidence if they relate to a startling event and were made while the speaker was under the stress of excitement caused by the event. The court of appeals acknowledged that the startling event could be the reporting of an earlier event, but it said the excited utterance rule could not be stretched to include reports of crimes committed more that two years earlier.

The court quoted a decision of the Washington Supreme Court that set out the rationale for making excited utterances an exception to the general rule against hearsay: both the stress from the event and the brevity of the time between the event and the statement make it unlikely the speaker came up with a lie.

[A]s the time between the event and the statement lengthens, the opportunity for reflective thought arises and the danger of fabrication increases. The longer the time interval, the greater the need for proof that the declarant did not actually engage in reflective thought.

State v. Chapin, 118 Wn.2d 681, 688 (1992).

Until the 1980’s, when most states created special hearsay exceptions for statements by young children alleging abuse, the excited utterance rule was often stretched to enable child abuse prosecutions to succeed. This stretching is seen much less often now. Washington’s child hearsay statute applies only to statements by children younger than ten, so it did not embrace the statements made by this sixth-grader.