Exercise 20

In a stalking trial, the prosecution calls the victim's cousin to testify. She testifies that the victim woke her up approximately four times in one week, each time between 2 a.m. and 4 a.m., when she telephoned in a very upset condition. The victim testified earlier she did not recall making any such calls, given the passage of time and her frayed emotional state. The prosecutor asks the cousin "What, if anything, did your cousin tell you during these late night calls?" Defense counsel objects on hearsay grounds before the cousin can answer that the victim stated, among other things: "I'm terrified!! Joseph (the defendant) is sitting out in the driveway again right now in his car. Oh my God! What should I do?"

How should the judge rule on the hearsay objection?

A. Sustain the hearsay objection and not allow the cousin to testify to the statements of the victim since they are hearsay, and also given that the victim did not recall the telephone calls during her testimony.

Answer A is incorrect. Whether the victim remembered the phone calls does not determine whether the cousin can testify to them. It is not unusual for a witness to testify to a lack of recall for a variety of reasons. The cousin's testimony about what the victim told her is hearsay since it is an out-of-court statement offered to prove the truth of the matter asserted--that defendant was repeatedly parking in the driveway late at night causing the victim to be upset. However, the hearsay fits within the "excited utterance" exception under Rule 11-803(B) because the statements relate to the startling, repetitive event of catching the defendant parked in the driveway and were made while under the stress of that event. Please select another answer.

B. Overrule the hearsay objection and allow the testimony under the "excited utterance" hearsay exception.

Answer B is correct! The cousin's testimony about what the victim told her is hearsay since it is an out-of-court statement offered to prove the truth of the matter asserted--that the defendant was repeatedly parking in the driveway late at night causing the victim to be upset. However, the hearsay fits within the "excited utterance" exception under Rule 11-803(B) because the statements relate to the startling, repetitive event of catching the defendant parked in the driveway and were made while under the stress of that event.

C. Overrule the hearsay objection and inform the prosecution and defense that the evidence will be allowed given its relevance to the issue of the impact the stalking had on the victim and therefore it does not matter if the cousin's testimony is hearsay.

Answer C is incorrect. The determination that evidence is relevant does not automatically mean that it is admissible at trial. The next question is whether the relevant evidence is hearsay. If so, then it must be determined whether it is admissible as an exception to the general prohibition against hearsay. The cousin's testimony about what the victim told her is hearsay since it is an out-of-court statement offered to prove the truth of the matter asserted--that the defendant was repeatedly parking in the driveway late at night causing the victim to be upset. However, the hearsay fits within the "excited utterance" exception under Rule 11-803(B) because the statements relate to the startling, repetitive event of catching the defendant parked in the driveway and were made while under the stress of that event. Please select another answer.