Quick Tip: Keeping Excited Utterances and Present Sense Impressions Straight
Often times, when the "excited utterance" hearsay exception is a correct answer to a multiple-choice question, you’ll see the "present sense impression" hearsay exception as a distractor answer choice—and vice versa. Distinguishing between these two exceptions is important in selecting the best answer.
✅ Excited utterance: The excited utterance exception applies when a statement is made in response to a startling event while the speaker is still under the stress of excitement caused by the event. The logic behind this exception is that the shock and immediacy of the situation are likely to prevent the speaker's cognitive ability to fabricate, thereby making these spontaneous exclamations more reliable. For this exception, the focus is on the emotional response to an unexpected and startling incident. The statement must be a natural reflex produced by the shock of the event.
✅ Present sense impression: The present sense impression exception is used when a statement describing or explaining an event or condition is made while the declarant is observing the event or immediately thereafter. This exception does not require the event to be startling. It hinges on the immediacy of the observation, which is believed to reduce the declarant's ability to reflect or fabricate. Reliability stems from the contemporaneity of the statement with the event it describes, ensuring that the observation is both fresh and accurate.
On the bar exam, discerning between these two exceptions often boils down to analyzing the context of the statement within the provided fact pattern:
⚠️ If the statement is made during or right after witnessing an event, without the necessity for the event to be startling, think of it as a present sense impression.
⚠️ If the statement is triggered by a shocking or startling event, and made while the speaker is still overwhelmed by that event, classify it as an excited utterance.
One final tip: when identifying an excited utterance, pay close attention to punctuation and descriptive verbs. Look for exclamation points (!!!) and words such as "yelled," "screamed," or "exclaimed," which often signal the emotional intensity and spontaneity indicative of an excited utterance.
