They Told Someone—Hearsay Exceptions and Fresh Complaint Doctrine
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark
This blog is a continuation of the discussion of State v. Cawley, a case concerning a gruesome rape of a young woman. In the last blog we discussed briefly the nuances between your 5th and 6th Amendment rights to counsel, and touched on the inevitable discovery doctrine. Today we discuss hearsay statements, excited utterances, present sense impression, and fresh complaint doctrine in court.
The Court’s Definition of Hearsay
In New Jersey hearsay is defined as “a statement, other than one made by the declarant…offered in evidence to prove the truth of the matter asserted.” This definition is the same in federal cases as well. Let’s use an example to make that definition more clear. Mark walks past a bar as he hears gunshots ring out. A patron of the bar named Mike who is never phased by anything calmly walks out and states “Jim just shot that guy.” This could not be offered to prove that Jim in fact shot anyone. But it may be used to show that the Mike was at the scene of the crime.
Excited Utterance as an Exception to the Hearsay Rule
Under the Federal and State Rules of Evidence there is an exception to the hearsay rule called ‘excited utterance.’ An excited utterance is a statement about a startling event someone makes while they are still under distress from that event. We can also use our previous hearsay example to illustrate this exception. Mark again walks past a bar as he hears gunshots ring out. This time instead of “Calm Mike” coming out, one of the gunshot victims, Paul, runs out and frantically exclaims that he was shot by Jim. Because Paul is obviously still under the stress of the traumatic event of being shot, his statement is an exception to the ban on hearsay. Excited utterances are easy to confuse with another hearsay exception, ‘present sense impression.’ A present sense impression is a statement that describes an event made while the person saying it perceives the event. Again, Mark walks past a bar, but this time he is on his cell phone with his wife. He peers into the window of the bar and notices Jim pulling out a gun and pointing it at Paul. Shocked, he narrates the events on the phone to his wife as they happen. This would be present sense impression.
The Fresh Complaint Doctrine
There is also something called fresh complaint doctrine. In New Jersey fresh complaints are unique to sexual assault cases because it is assumed that if a sexual assault actually occurred most victims would tell someone. The basis for this assumption will not be addressed in this blog but the assumption itself is the basis for fresh complaint doctrine. Oftentimes the defense will use a lack of a timely complaint by the alleged victim of sexual assault to suggest to the jury that a current accusation is fabricated for some other motive. Fresh complaint doctrine is an opportunity for an alleged victim to present a statement she/he made to anyone about the sexual assault. It is not hearsay because it is not presented to prove the sexual assault happened but only to prove the alleged victim in fact told someone about it.
Fresh Complaint and Excited Utterance in State v. Cawley
In State v. Cawley, Maria told Dawn, the fiancé of her brother, about the sexual assault within a couple days. There is no precise time frame that must be met and New Jersey courts have held that waiting a month to discuss a sexual assault was not unreasonable and would still suffice for a fresh complaint. But Maria’s fresh complaint is a bit irrelevant here because of the excited utterances that occurred when she was first taken to the hospital. These occurred less than two hours after she was dumped onto the street naked, and she was clearly still under great stress. Unlike a fresh complaint which is simply not hearsay, an excited utterance is an exception and thus more information from these utterances can be used as evidence. In the case of an excited utterance the information said is important, not merely the fact it was said.