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If the victim does not appear in court
or refuses to testify;
or if the victim testifies, but is evasive,
or claims not to remember what happened;
or if the
victim testifies, but changes the story, e.g. now claims there was
no assault or that the defendant was not the assailant;
then the prosecution may introduce prior
statements of the victim that are excited utterances (Rule 11-803(B)).
Definition
Rule 11-803(B): The following are not
excluded by the hearsay rule: Excited utterance. A statement relating
to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.
Foundation
A party who wants to introduce a prior statement into evidence as
an excited utterance must establish that when making the statement:
• the declarant was under the stress of excitement;
• the excitement was the result of a startling event or condition;
and
• the statement relates to that startling event or condition.
In addition, if the declarant is not present at trial, the party
offering the hearsay must show that the declarant is unavailable
as a witness. State v. Lopez,
1996-NMCA-101, ¶21, 122 N.M.
459. Having shown unavailability, the proponent must show either
that the statement:
• was not testimonial; or
• was testimonial and the defendant had a prior opportunity to cross-examine
the declarant. Crawford v. Washington, 541
U.S. 36.
Admissibility
If admitted, the statement may be used for any purpose, including
substantive evidence to help prove the elements of a case.
Example
A police officer who arrived at the scene of a domestic dispute
testifies that as the victim ran from the home, bleeding from the
face, she was shouting: "My boyfriend beat me up!"
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