PEOPLE OF MI V DAVID CARL BARRETT
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED APRIL 14, 2008
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 133128
DAVID CARL BARRETT,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
TAYLOR, C. J.
At issue in this case is whether MRE 803(2),1 the excited utterance
exception to the hearsay rule, requires as a prerequisite to the admission of an outof-court statement that a startling event or condition be established without
considering the out-of-court statement itself. We conclude that the plain language
1
MRE 803(2) provides:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
***
(2) 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.
of the rule, when applied as instructed by MRE 1101(b)(1)2 and MRE 104(a),3
allows the court to consider the statement along with other evidence to prove the
existence of a startling event or condition. Accordingly, we overrule People v
Burton, 433 Mich 268; 445 NW2d 133 (1989), to the extent that it held that the
statement itself could not be considered along with the independent evidence to
decide admissibility. This exclusion of any consideration of the statement was an
incorrect understanding of the requirements of MRE 803(2). For this reason, we
reverse the judgment of the Court of Appeals and the order of the trial court that
relied on Burton, and we remand this case to the trial court for further proceedings
consistent with this opinion.
2
MRE 1101(b)(1) provides:
(b) Rules inapplicable. The rules [of evidence] other than
those with respect to privileges do not apply in the following
situations and proceedings:
(1) Preliminary Questions of Fact. The determination of
questions of fact preliminary to admissibility of evidence when the
issue is to be determined by the court under Rule 104(a).
3
MRE 104(a) provides:
Questions of admissibility generally. Preliminary questions
concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be
determined by the court, subject to the provisions of subdivision (b).
In making its determination it is not bound by the Rules of Evidence
except those with respect to privileges.
2
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
On May 17, 2004, Suzanne Bartel, defendant’s longtime, live-in girlfriend,
pounded on her neighbors’ door, said that defendant was chasing her with an ax,
and asked to use their phone. She was hysterical and crying.
Her hysteria
continued as she reported to the 911 operator that defendant had kicked the door
in, beaten her, tried to strangle her, and brandished a hatchet. At one point, the
911 operator advised her to calm down and gain control of her breathing. Bartel
informed the 911 operator that defendant had told her never to call the police or he
would kill her.
When the first responding officer arrived, Bartel similarly told him that
defendant had punched a hole in the bedroom door, pinned her to the bed, and
began hitting her face; shortly afterward, defendant had picked up a hatchet,
grabbed her around the neck, raised the hatchet, and said he was going to kill her.
The officer observed that Bartel was so agitated that she could not sit down and
that it was apparent that Bartel had been crying. When he and other officers
searched Bartel’s house, they found the hatchet in the house and a 12-inch hole in
one of the doors. The officers observed marks on Bartel’s shoulders and one arm
and a cut on the inside of her mouth.
Defendant was charged with domestic assault (second offense) and
felonious assault. At the preliminary examination, Bartel refused to testify. Faced
with the prospect of a dismissal of the charges because of insufficient proofs, the
prosecuting attorney attempted to have admitted, as excited utterances under the
3
hearsay4 exception provided in MRE 803(2), the statements Bartel made to the
911 operator, one of the neighbors, and the police officer. The defense countered
that Burton requires that the startling event be established by evidence solely apart
from an excited utterance before the excited utterance can be admitted and that
insufficient independent evidence had been offered in this case. The examining
magistrate agreed with defendant that Burton’s requirements for independent
evidence of the assault had not been met and thus dismissed the charges. The
prosecution appealed in the circuit court, asserting that MRE 803(2), as written,
does not require that the startling event be established only with evidence
independent of the statement itself and that the Burton Court had unwarrantedly
read the requirement into the rule. The circuit court affirmed on the basis of
Burton, and the prosecution then sought leave to file an appeal in the Court of
Appeals, again arguing that Burton had been wrongly decided. The Court of
Appeals heard the case and concluded that, whatever the merits of the
prosecution’s argument, it had no authority to revise or alter in any fashion a
decision of the Supreme Court.5
4
A hearsay statement is an out-of-court statement made by someone other
than a declarant at trial and offered in evidence to prove the truth of the matter
asserted. MRE 801(c).
5
People v Barrett, unpublished memorandum opinion of the Court of
Appeals, issued December 19, 2006 (Docket No. 261382).
4
The prosecution sought leave to appeal in this Court, and we ordered oral
argument on whether to grant the application and directed the parties to address
whether Burton should be overruled. People v Barrett, 478 Mich 875 (2007).
II. STANDARD OF REVIEW
Whether MRE 803(2) contains a requirement that the startling event or
condition be established without consideration of the statement itself is a question
of law, which is reviewed de novo. Waknin v Chamberlain, 467 Mich 329, 332;
653 NW2d 176 (2002) (stating that the meaning of a Michigan rule of evidence is
examined in the same manner as a court rule or statute is examined: they all
present questions of law that are reviewed de novo).
III. ANALYSIS
Evidentiary rulings in Michigan courts are controlled by the Michigan
Rules of Evidence, which this Court adopted in 1978. When we adopted the rules
of evidence, they were closely patterned after the Federal Rules of Evidence,
People v Kreiner, 415 Mich 372, 378; 329 NW2d 716 (1982), but we did not
adopt all the federal rules verbatim. One that we adopted verbatim was MRE
803(2), the excited utterance rule at issue in this case. Both the federal and state
versions of the rule state simply that, although hearsay, a statement will not be
excluded by the hearsay rule if it is “[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.”
5
Thus, while both rules require that there be a startling event or condition,
they indisputably do not preclude consideration of the statement itself for the
purpose of establishing the startling event or condition. Nevertheless, in 1989, the
Burton Court, over the dissent of Justice Boyle and without invoking the rulesamendment process,6 concluded that a proffered excited utterance could not be
6
The amendment process, as outlined in MCR 1.201, provides:
(A) Notice of Proposed Amendment. Before amending the
Michigan Court Rules or other sets of rules within its jurisdiction,
the Supreme Court will notify the secretary of the State Bar of
Michigan and the state court administrator of the proposed
amendment, and the manner and date for submitting comments. The
notice also will be posted on the Court’s website,
www.supremecourt.state.mi.us.
(B) Notice to Bar. The state bar secretary shall notify the
appropriate state bar committees or sections of the proposed
amendment, and the manner and date for submitting comments.
Unless otherwise directed by the Court, the proposed amendment
shall be published in the Michigan Bar Journal.
(C) Notice to Judges. The state court administrator shall
notify the presidents of the Michigan Judges Association, the
Michigan District Judges Association, and the Michigan Probate and
Juvenile Court Judges Association of the proposed amendment, and
the manner and date for submitting comments.
(D) Exceptions. The Court may modify or dispense with the
notice requirements of this rule if it determines that there is a need
for immediate action or if the proposed amendment would not
significantly affect the delivery of justice.
(E) Administrative Public Hearings. The Court will conduct
a public hearing pursuant to Supreme Court Administrative Order
1997-11 before acting on a proposed amendment that requires
notice, unless there is a need for immediate action, in which event
the amendment will be considered at a public hearing following
(continued…)
6
used to satisfy the conditions for its own admissibility. Burton, supra at 294. In
reaching this conclusion, the Burton Court initially focused on the notion that
there must be evidence independent of the statement itself to establish the
existence of a startling event or condition before the statement could be admitted
as an excited utterance.7 We deal with a situation in this case for which there
clearly was independent evidence to corroborate the existence of the startling
event or condition.8 Therefore, we do not need to reach the question whether the
statement standing alone could supply the evidence of the startling event.9
(…continued)
adoption. Public hearing agendas will be posted on the Court’s
website.
7
The Burton Court relied on a passage in Rogers v Saginaw-Bay City R Co,
187 Mich 490, 494-495; 153 NW 784 (1915), in which the Rogers Court held that
a decedent’s statement could not be used to establish its own spontaneity because
the statement had not yet been admitted. Burton, supra at 280-281. Because
Rogers was decided before MRE 104(a) was adopted, and MRE 104(a) effectively
superseded the Rogers decision, this Court’s adoption of MRE 104(a) essentially
rejected the reasoning in Rogers. Thus, the Burton Court’s reliance on Rogers 11
years after the adoption of MRE 104(a) was in error.
8
There was a plethora of independent evidence indicating that Bartel had
been exposed to a startling event or condition, namely, the neighbor’s testimony
that Bartel pounded frantically on the neighbors’ door, Bartel’s panicked state
when speaking to the 911 operator, the responding officer’s observation that Bartel
was so hysterical when he arrived that she could not sit down, the hatchet inside
the house, the 12-inch hole in one of the doors, the marks on Bartel’s shoulders
and arm, and the cut inside her mouth.
9
Concerning that question, the 1972 advisory committee’s notes to FRE
803(2) indicated in relevant part that “[w]hether proof of the startling event may
be made by the statement itself is largely an academic question, since in most
cases there is present at least circumstantial evidence that something of a startling
nature must have occurred.” (Emphasis in original.)
7
Instead, we focus on Burton’s wholesale preclusion of the use of the
statement to establish the existence of the startling event or condition. The Burton
Court, without any citation to authority and, in fact, ignoring the significance of
the other rules of evidence we have cited here, stated: “[T]he excited utterance
must not be used to substantiate the event from which the utterance must be shown
to have arisen. In order to guard against this ‘bootstrapping,’ we must determine
whether the nonexcited-utterance evidence independently furnishes proof of the
underlying event.” Burton, supra at 295.
It is this unsupported notion that is the subject of controversy in the instant
case, and it is with this notion that we take issue precisely because of the Burton
Court’s failure to recognize and follow established rules of evidence that had
guided the prevailing practice of determining evidentiary admissibility for the 11
years preceding the Burton decision. Of particular importance in the context of
excited utterances are MRE 1101(b)(1) and MRE 104(a).
MRE 1101(b)(1)
provides:
(b) Rules inapplicable. The rules [of evidence] other than
those with respect to privileges do not apply in the following
situations and proceedings:
(1) Preliminary Questions of Fact. The determination of
questions of fact preliminary to admissibility of evidence when the
issue is to be determined by the court under Rule 104(a).
Clearly, the existence of a startling event or condition is a question of fact
that a trial court must decide before it may admit a statement under MRE 803(2)
as an excited utterance. Thus, MRE 1101(b)(1) directs the court to comply with
8
MRE 104(a) when deciding whether a startling event or condition exists. And
MRE 104(a), which, like MRE 803(2), is identical to its federal counterpart, FRE
104(a), provides:
Questions of admissibility generally. Preliminary questions
concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be
determined by the court, subject to the provisions of subdivision (b).
In making its determination it is not bound by the Rules of Evidence
except those with respect to privileges. [Emphasis added.]
Had the Burton Court read MRE 1101(b)(1) and MRE 104(a) together and
applied those rules to its interpretation of MRE 803(2), as it was constrained to do,
the Court would have come to the inescapable conclusion, as we do now, that a
trial court may consider any evidence regardless of that evidence’s admissibility at
trial, as long as the evidence is not privileged, in determining whether the evidence
proffered for admission at trial is admissible.
In the context of an excited
utterance, then, this means that even though an out-of-court statement may not be
admitted at trial without adequate indicia of reliability, i.e., the existence of a
startling event or condition, the trial court can consider the statement when
determining whether the indicia of reliability have been met, i.e., that the startling
event or condition has been established.
Although the Burton Court referred to MRE 104(a) when it stated that “a
trial judge ruling on the admissibility of evidence need not confine his review to
admissible evidence only” under this rule, Burton, supra at 295, the Court
inexplicably declined to allow the consideration of an excited utterance itself on
9
the ground that to do so would allow a hearsay statement to be lifted “‘“by its
bootstraps to the level of competent evidence,”’” id. at 281-282, quoting People v
Vega, 413 Mich 773, 780; 321 NW2d 675 (1982), quoting Glasser v United
States, 315 US 60, 75; 62 S Ct 457; 86 L Ed 680 (1942), even though such a result
was permissible under MRE 104(a).10
The problem with relying on Vega, which relied on Glasser for the
proposition that an inadmissible statement may not bootstrap its way into
admissibility, is that just as Rogers v Saginaw-Bay City R Co, 187 Mich 490; 153
NW 784 (1915), was decided before the Michigan Rules of Evidence were
adopted, Glasser was decided before the Federal Rules of Evidence were adopted.
And the adoption of these rules changed the process governing a trial court’s
admissibility determinations.
10
The dissent acknowledges that “[t]he court [is] free under MRE 104(a) to
consider other inadmissible evidence when deciding whether to admit a statement
under MRE 803(2),” but states that the court may not consider the statement itself.
Post at 7. However, the dissent does not explain why MRE 104(a) allows the
court to consider any evidence, including inadmissible evidence, but not the
statement sought to be admitted. Similarly, the dissent contends that “while MRE
104(a) provides that the court is not bound by the rules of evidence while making
determinations concerning admissibility, MRE 104(a) does not permit the court to
disregard the criteria for admissibility inherent in the rule of evidence under
consideration.” Post at 7. This statement makes no sense: MRE 104(a) provides
that the court is not bound by the rules of evidence while making admissibility
determinations, but the court is bound by MRE 803(2). Either the court is bound
by the rules of evidence when making admissibility determinations or it is not.
The dissent cannot have it both ways.
10
In Bourjaily v United States, 483 US 171, 178; 107 S Ct 2775; 97 L Ed 2d
144 (1987), the United States Supreme Court considered the continued viability of
Glasser’s bootstrapping analysis in light of the enactment of the Federal Rules of
Evidence and concluded that to the extent that Glasser was inconsistent with FRE
104, which is identical to MRE 104, Glasser was overruled.
The Court
specifically held that “a court, in making a preliminary factual determination under
[FRE] 801(d)(2)(E), may examine the hearsay statements sought to be admitted.”
Bourjaily, supra at 181. In reaching this conclusion, the Court reasoned that FRE
104 on its face permits the trial court to “consider any evidence whatsoever, bound
only by the rules of privilege.” Id. at 178. Nevertheless, even though Bourjaily
overruled the very same proposition that Burton relied on, and even though Burton
was decided two years after Bourjaily, the Burton Court chose to follow overruled
precedent rather than follow the guidance provided by the United States Supreme
Court.11
11
Vega, Glasser, and Bourjaily all involved the admission of a
coconspirator’s statement against a defendant. At the time Bourjaily was decided,
FRE 801(d)(2)(E) did not provide, as MRE 801(d)(2)(E) did, that the conspiracy
must be established with independent proof. In 1997, 10 years after the Bourjaily
decision, FRE 801(d)(2)(E) was amended to provide that “[t]he contents of the
statement shall be considered but are not alone sufficient to establish . . . the
existence of the conspiracy and the participation therein . . . .” According to the
relevant portion of the 1997 advisory committee’s notes,
[FRE] 801(d)(2) has been amended in order to respond to three
issues raised by [Bourjaily]. First, the amendment codifies the
holding in Bourjaily by stating expressly that a court shall consider
the contents of a coconspirator’s statement in determining “the
(continued…)
11
Properly understood then, MRE 104(a) permits a trial court to consider any
evidence,
unless
it
implicates
a
privilege,
when
making
preliminary
determinations concerning the admissibility of proffered evidence, and MRE
803(2), when applied in accordance with MRE 104(a), does not premise the
admissibility of an excited utterance on the proponent’s ability to establish the
(…continued)
existence of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered.”
According to Bourjaily, [FRE] 104(a) requires these preliminary
questions to be established by a preponderance of the evidence.
Second, the amendment resolves an issue on which the Court
has reserved decision. It provides that the contents of the declarant’s
statement do not alone suffice to establish a conspiracy in which the
declarant and the defendant participated. The court must consider in
addition the circumstances surrounding the statement, such as the
identity of the speaker, the context in which the statement was made,
or evidence corroborating the contents of the statement in making its
determination as to each preliminary question. This amendment is in
accordance with existing practice. Every court of appeals that has
resolved this issue requires some evidence in addition to the contents
of the statement. [Citations omitted.]
The dissent claims that “[t]he amendment . . . indicated a prevailing policy
against allowing the type of bootstrapping that the majority’s approach will permit
in the context of MRE 803(2).” Post at 10. This is clearly incorrect, given that the
amended version of FRE 801(d)(2) expressly states that “[t]he contents of the
statement shall be considered . . . .” The dissent also suggests that we are
permitting a statement to serve as the only proof of a startling event or condition.
Post at 8. In doing so, the dissent asserts that “Burton provides a modest
protection against admitting unsupported hearsay statements when there is no
other independent evidence establishing that the underlying event occurred.” Post
at 13 (emphasis in the original). As explained on p 7 of this opinion, given the
plethora of independent evidence in this case, “we do not need to reach the
question whether the statement standing alone could supply the evidence of the
startling event.”
12
existence of a startling event or condition without considering the utterance itself.
In the instant case, Bartel’s statement to her neighbor that defendant was chasing
her with an ax; her statements to the 911 operator that defendant had kicked the
door down, beaten her, tried to strangle her, and threatened her with a hatchet; and
her similar statements to the responding police officer, as corroborated by the
neighbor’s observation that Bartel was hysterical and crying, the transcript of the
911 call in which the operator advised Bartel to calm down and gain control of her
breathing, the first responding officer’s observation that Bartel was so agitated that
she could not sit down and that she had been crying, the hatchet in the house, a 12inch hole in one of the doors, the marks on her shoulders and arm, and the cut on
the inside of her mouth, all support that hers were excited utterances pertaining to
a startling event or condition. Thus, the out-of-court statements were admissible
under the excited utterance exception to the rule against hearsay.
IV. STARE DECISIS
In assessing whether to overrule a prior decision, we must consider whether
the earlier decision was wrongly decided and whether overruling the decision
would work an undue hardship because of reliance interests or expectations that
have arisen. Robinson v Detroit, 462 Mich 439, 465-466; 613 NW2d 307 (2000).
For the reasons previously discussed, we conclude that Burton was incorrectly
decided. “As to the reliance interest, the Court must ask whether the previous
decision has become so embedded, so accepted, so fundamental, to everyone’s
13
expectations that to change it would produce not just readjustments, but practical
real-world dislocations.” Id. at 466. The decision in Burton has not become so
fundamental that overruling it will interfere with any legitimate reliance or
expectation interests. “[T]o have reliance the knowledge must be of the sort that
causes a person or entity to attempt to conform his conduct to a certain norm
before the triggering event.” Id. at 467. The Burton Court’s decision cannot be
said to have caused people to alter their conduct in any way. Therefore, overruling
Burton will create no “practical real-world dislocations.”
V. CONCLUSION
The plain language of MRE 803(2), the excited utterance exception to the
hearsay rule, does not require that a startling event or condition be established
solely with evidence independent of an out-of-court statement before the out-ofcourt statement may be admitted. Rather, MRE 1101(b)(1) and MRE 104(a)
instruct that when a trial court makes a determination under MRE 803(2) about the
existence of a startling event or condition, the court may consider the out-of-court
statement itself in concluding whether the startling event or condition has been
established. Because Burton failed to consider MRE 1101(b)(1) and MRE 104(a)
when interpreting MRE 803(2), it reached the wrong result and must be overruled
with respect to this issue. Because the lower courts in this case relied on Burton,
we reverse the judgment of the Court of Appeals and the order of the trial court,
14
and we remand this case to the trial court for further proceedings consistent with
this opinion.
Reversed and remanded to the trial court.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
15
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 133128
DAVID CARL BARRETT,
Defendant-Appellee.
WEAVER, J. (concurring).
I concur in the result of the majority opinion for the reasons stated in part V
of the opinion and for the reasons stated in Justice Boyle’s dissent in People v
Burton, 433 Mich 268, 305; 445 NW2d 133 (1989).
Elizabeth A. Weaver
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 133128
DAVID CARL BARRETT,
Defendant-Appellee.
CAVANAGH, J. (dissenting).
I respectfully dissent. I would not overrule People v Burton, 433 Mich 268;
445 NW2d 133 (1989), because it is a prudent decision that defends the integrity
of the evidence we admit in our courts.
Overruling precedent is a grave measure that should occur only after
serious consideration. Before this Court overrules a deliberately made decision, it
should be convinced not only that the case was wrongly decided, but that
overruling it will cause less injury than following it. McEvoy v Sault Ste Marie,
136 Mich 172, 178; 98 NW 1006 (1904).
In deciding whether to overrule
established precedent, this Court must examine whether (1) the earlier case was
incorrectly decided, (2) the earlier case defies practical workability, (3) reliance
interests would work an undue hardship if the earlier case were overruled, and (4)
changes in the law or facts no longer justify the earlier decision. Robinson v
Detroit, 462 Mich 439, 464-465; 613 NW2d 307 (2000). In light of these factors,
I am convinced that Burton should not be overruled. In particular, I believe that
the first Robinson factor weighs strongly against overruling Burton and its rule
that a startling event or condition must be established by independent proof before
a statement emanating from the event or condition may be admitted under the
excited utterance exception to the hearsay rule.
The Federal Rules of Evidence codified a number of exceptions to the
hearsay rule that had been recognized at common law. The advisory committee’s
notes to FRE 803 described the rule as a synthesis of common-law hearsay
exceptions, “with revision where modern developments and conditions are
believed to make that course appropriate.” In 1978, Michigan adopted the excited
utterance exception to the hearsay rule, MRE 803(2), stating that it was identical
with FRE 803(2). At the time we adopted the Michigan Rules of Evidence,
whether MRE 803(2) and FRE 803(2) required independent proof of the startling
event was an unsettled question. The advisory committee’s notes to FRE 803(2)
declined to resolve the issue “[w]hether proof of the startling event may be made
by the statement itself,” dismissing it as “largely an academic question . . . .”
Accordingly, when this issue arose in Burton, this Court was addressing an
unsettled question of law that was a matter of first impression in Michigan.1 We
1
Because the issue was one of first impression in Michigan and the
advisory committee’s notes to the Federal Rules of Evidence indicated that courts
had come to different conclusions, this Court was well within its authority to adopt
the position that MRE 803(2) requires independent proof of the underlying
startling event or condition. I disagree with the majority’s assertion that this Court
(continued…)
2
stated that “the specific question in this case—whether [a proffered excited
utterance] may establish the underlying startling event—has not been considered
by Michigan courts . . . .” Burton, supra at 280. The Burton Court properly
sought to effectuate the intent of the formulating body by applying a reasonable
construction that promoted the purpose of the provision. In discerning the intent
of the formulating body, we appropriately interpreted MRE 803(2) consistently
with Michigan cases that had applied its common-law predecessor.
In particular, Burton consulted Rogers v Saginaw-Bay City R Co, 187 Mich
490; 153 NW 784 (1915), a case that predated the Michigan Rules of Evidence but
addressed the common-law spontaneous exclamation exception to the hearsay
rule, which was analogous to MRE 803(2). Statements were admissible under the
spontaneous exclamation exception if they met three conditions:
(1) that there is a startling occasion, startling enough to
produce nervous excitement, and render the utterance spontaneous
and unreflecting; (2) that the statement must have been made before
there has been time to contrive and misrepresent; and (3) the
statement must relate to the circumstances of the occurrence
preceding it. [Rogers, supra at 494, citing 3 Wigmore, Evidence,
§ 1750 et seq.][2]
(…continued)
was required to invoke the amendment process rather than holding in Burton that
MRE 803(2) required independent proof of the startling event or condition. The
independent-proof requirement is consistent with the language of MRE 803(2) and
was not a departure from previous Michigan law.
2
These conditions are virtually identical to the criteria for admissibility of
statements under MRE 803(2), which are derived from the text of the exception:
(continued…)
3
Rogers involved a wrongful-death action in which the decedent was
allegedly injured by the negligent operation of a street car. Rogers, supra at 491.
The only witness to the apparent incident was the decedent himself, so the case
hinged on the admission of the decedent’s statements to his son.
The son
witnessed his father limping home with a drawn face, so he asked his father what
was the matter. Id. at 492. The son proffered testimony that the decedent told him
that “‘while he was in the act of alighting from the car one foot was on the running
board and the other foot was nearly on the ground, and the car started and threw
him to the pavement on his right hip.’” Id. at 492-493. The issue presented was
whether the decedent’s statement fit within the hearsay exception that permitted
the admission of spontaneous exclamations. Id. at 493.
This Court held that the proffered statement failed to meet the second
condition—that the statement must have been made before there has been time to
contrive and misrepresent. Rogers asked, “[H]ow can the second condition be met
without direct and independent evidence of the time of the startling occasion with
reference to the making of the statement?” Id. at 494. In other words, the
foundation of the spontaneous exclamation exception required independent
(…continued)
To come within the excited utterance exception to the hearsay
rule, a statement must meet three criteria: (1) it must arise out of a
startling occasion; (2) it must be made before there has been time to
contrive and misrepresent; and (3) it must relate to the circumstances
of the startling occasion. [People v Gee, 406 Mich 279, 282; 278
NW2d 304 (1979) (citations omitted).]
4
evidence of the statement’s temporal relationship to the event to show that the
statement arose spontaneously from the event.
In rejecting the notion that a statement alone could establish its own
spontaneity for the purpose of this hearsay exception, Rogers illustrates our
historical prohibition of the admission of hearsay evidence and disinclination to
permit the circular practice of relying solely on the content of the statement to
establish its foundation for admissibility.
Notably, Rogers actually required
independent proof that the event and the statement were so closely related in time
as to establish that the statement was a spontaneous reaction to the event. Rogers
recognized that the independent-proof requirement was necessary to meet the
foundational elements of the exception. The foundational elements of a hearsay
exception ensure that admission of the statement would fulfill the fundamental
rationale of the exception.
Using the same reasoning, Burton determined that the first and third
conditions of the excited utterance exception—that a statement arises out of a
startling event or condition and relates to the circumstances of the startling
occasion—require proof independent of the content of the statement itself. Just as
in Rogers, the independent-proof requirement in Burton ensures that the
foundational elements of the exception are met and that admission of the statement
furthers the underlying rationale of the exception.
The foundational elements of the excited utterance exception embody its
underlying rationale—the reason why, although it is hearsay, a statement is
5
deemed trustworthy enough for admission. It is widely accepted that the “premise
underlying the exception for excited utterances is that a person under the influence
of excitement precipitated by an external startling event will not have the
reflective capacity essential for fabrication. Thus, any utterance made under such
circumstances will be spontaneous and trustworthy.”
5 Weinstein, Federal
Evidence (2d ed), § 803.04[1], pp 803-18.1 to 803-19. The excited utterance
exception is based on the principle that hearsay statements are only sufficiently
reliable when they are spontaneous reactions to a startling event or condition. But
the exception does not encompass any statement arising from any startling
occasion.
Only a statement “relating to a startling event or condition” is
admissible under the exception. MRE 803(2) (emphasis added). “The statement
need not elucidate or explain the occurrence in order to qualify as an excited
utterance. It must, however, relate to the event in some manner.” 5 Weinstein,
§ 803.04[5], p 803-29. In addition, at the time the statement is made, the declarant
must be “under the stress of excitement caused by the event or condition.” MRE
803(2) (emphasis added). The excited utterance exception, therefore, specifically
requires that the statement related to the startling event or condition and that the
same event or condition to which the statement related caused the declarant’s
excitement.
These two foundational elements are precisely why Burton’s
independent-proof requirement is invoked. The proponent of the evidence must
show that the statement satisfies the foundational elements of the excited utterance
exception. If there is no independent evidence of the nature of the startling event
6
or condition, it is impossible to adequately prove that the statement related to the
starting event or condition or to establish that the occasion caused the declarant’s
excitement.
The majority claims that Burton’s independent-proof requirement is
inconsistent with MRE 104(a). I disagree. The independent-proof requirement
can be applied along with MRE 104(a) because independently establishing the
existence of the startling event or condition is fundamental to the elements of
MRE 803(2).
This Court determined in Burton that the independent-proof
requirement is integral to the foundational elements of the exception; thus, the
relevant preliminary factual question for purposes of determining admissibility is
whether a statement arises out of and relates to a startling occasion for which there
is independent evidence.
As such, there is no inconsistency between the
independent-proof requirement and the latitude that MRE 104(a) gives a trial court
to consider inadmissible evidence in resolving preliminary questions concerning
the admissibility of evidence. The court would still be free under MRE 104(a) to
consider other inadmissible evidence when deciding whether to admit a statement
under MRE 803(2); the content of the statement itself would be excluded only
from the court’s determination of whether independent proof of the startling event
or condition exists. In sum, while MRE 104(a) provides that the court is not
bound by the rules of evidence while making determinations concerning
admissibility, MRE 104(a) does not permit the court to disregard the criteria for
admissibility inherent in the rule of evidence under consideration.
7
The majority’s approach elevates MRE 104(a) over the other rules of
evidence by concluding that MRE 104(a) grants the court unfettered authority to
consider any evidence, aside from privileged evidence, while ignoring that the
foundational requirements of the rule under consideration can direct what evidence
the court may consider in making determinations concerning admissibility. The
majority accuses me of trying to “have it both ways” by asserting that the court is
not bound by the rules of evidence while making admissibility determinations, but
is bound by MRE 803(2). Ante at 10 n 10. But the majority fails to recognize that
the fundamental duty that MRE 104(a) entails is determining admissibility under
the rules of evidence. MRE 104(a) permits the court to consider inadmissible
evidence in making determinations concerning admissibility, but it does not
excuse the court from ensuring that, ultimately, the conditions for admissibility are
met. In this case, the content of the statement is not excluded from consideration
because it is inadmissible hearsay under the rules of evidence; it is excluded
because independent proof of the startling event or condition is fundamentally
required to establish admissibility under MRE 803(2).
The majority dismisses the suggestion that its opinion will permit a
statement to bootstrap itself into admissibility by allowing the statement alone to
establish a startling event or condition. Though declining to reach the question,
the majority cannot conceal that the natural extension of its construction of MRE
104(a) and MRE 803(2) would allow such bootstrapping. The majority suggests
that if this Court had interpreted MRE 104(a) and MRE 803(2) properly in Burton,
8
it would have followed Bourjaily v United States, 483 US 171; 107 S Ct 2775; 97
L Ed 2d 144 (1987), which held that the adoption of the Federal Rules of Evidence
abrogated the prohibition against bootstrapping in the context of admissions by
coconspirators. Ante at 11. Given that the majority opinion endorses applying
Bourjaily to MRE 803(2), it is notable that both the majority and Bourjaily shy
away from addressing the disturbing consequence of their rulings. The majority
states that “we do not need to reach the question whether the statement standing
alone could supply the evidence of the startling event.” Ante at 7. Similarly, in
Bourjaily, the United States Supreme Court concluded that a court may consider
an alleged coconspirator’s statements in determining whether the statements are
admissible as a party admission under FRE 801(d)(2)(E). Bourjaily, supra at 178179. However, the Court declined to resolve whether an alleged coconspirator’s
statements could, by themselves, satisfy the proponent’s burden, stating that “[w]e
need not decide in this case whether the courts below could have relied solely
upon [the declarant’s] hearsay statements to determine that a conspiracy had been
established by a preponderance of the evidence.” Id. at 181. Thus, the Court left
open the issue whether some independent proof of the conspiracy was required.
But it is apparent from their reaction to Bourjaily that the United States
Judicial Conference, the Court, and Congress understood that Bourjaily’s ruling
would logically permit bootstrapping under FRE 801(d)(2)(E). Significantly, in
response to Bourjaily, these bodies proposed and approved an amendment of FRE
9
801(d)(2)(E).3
The rule was amended to provide that the “contents of the
statement shall be considered but are not alone sufficient to establish . . . the
existence of the conspiracy and the participation therein of the declarant and the
party against whom the statement is offered . . . .” (Emphasis added.)
The
advisory committee’s notes observed that the amendment accorded with existing
practice, because every court of appeals that had addressed the issue required
some evidence in addition to the contents of the statement. The amendment of
FRE 801(d)(2)(E) in response to Bourjaily reflected the recognition that
Bourjaily’s reasoning—on which the majority’s opinion relies—opened the door
to bootstrapping; otherwise, it would not have been necessary to add an explicit
protection against bootstrapping to FRE 801(d)(2). The amendment also indicated
a prevailing policy against allowing the type of bootstrapping that the majority’s
approach will permit in the context of MRE 803(2).
Moreover, the amendment makes clear that FRE 104(a) does not permit the
court to overlook the foundational requirements of the particular rule of evidence
under consideration. In other words, if the foundational elements of a rule of
evidence prohibit the court from relying on a particular piece of evidence, FRE
104(a) does not override the rule and grant the court authority to rely on the
prohibited evidence. Accordingly, there is no contradiction between MRE 104(a)
3
The advisory committee’s notes to the 1997 amendment of FRE
801(d)(2)(E) state: “Rule 801(d)(2) has been amended in order to respond to three
issues raised by Bourjaily v. United States, 483 U.S. 171 (1987).”
10
and Burton’s independent-proof rule because MRE 803(2) fundamentally requires
independent proof of the startling event or condition.
The majority’s rule will undoubtedly permit the admission of statements
under this exception that do not meet its criteria and, consequently, do not carry
the inherent trustworthiness sought by the exception.
Without independent
evidence of the startling event or condition, there will be inadequate proof that the
statement related to the startling event or condition and that the declarant’s
excitement was caused by the same event or condition referred to in the statement.
Burton illustrates the peril of operating without independent proof of the
event, thereby neglecting these criteria. In Burton, a police officer encountered a
woman “running down the street wearing a twisted dress and no shoes, looking
over her shoulder as if someone might be pursuing her.” Burton, supra at 272.
The officer stopped and let her into his squad car, where she reported that she had
been sexually assaulted by defendant Burton when she had gone with an
acquaintance to Burton’s house. Id. at 272-273. She stated that she had escaped
by asking permission to use the bathroom, then using the opportunity to pull her
dress on and run out of the house. Id. at 274. The woman’s trial testimony
provided an entirely different account of events.
She testified that she had
accompanied an acquaintance to Burton’s house, where she expected to be paid
for having sex with Burton.
After she disrobed, she requested money from
Burton, but he refused and accused her of having taken money from him. They
got into a heated argument, prompting Burton to slap her. She got angry, cried,
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and ran out, expecting Burton to come after her and try to talk to her. Id. She
testified that she decided to tell the police that Burton had raped her in order to get
back at him for having slapped her. Id. at 275. At trial, Burton objected to the
admission of the woman’s original statements to the police officer under the
excited utterance exception.
We held that the statements were inadmissible
without independent proof that the purported startling event—a sexual assault—
took place. Id. at 294. We found that the independent evidence—the woman’s
demeanor, physical condition, and appearance at the time of the statement;
Burton’s attempt to remove the woman’s shoes and panties from his house; the
discovery of the woman’s brassiere in the house; and the testimony of the other
eyewitness—only established at most a stressful event with sexual overtones. Id.
at 297-298.
Burton provides an excellent illustration of the necessity of proving with
independent evidence the existence of a startling event or condition. Burton
presented two potentially startling events according to two different versions of
facts: either a sexual assault or an act of prostitution turned assault. Either event
could explain the declarant’s demeanor, disarray, and presence at the defendant’s
home, but only one version of events supported the content of the declarant’s
statements. The concern addressed by Burton was not that a declarant might
wholly invent a startling event and feign agitation; it was that a declarant who had
been legitimately agitated by an event could make a statement reflecting an
entirely different event. Without independent evidence of the underlying event,
12
the statement could not adequately prove two of the conditions for admissibility
under the excited utterance exception: that the statement related to the event and
that the declarant’s excitement was caused by that very event. The declarant’s
agitation could have been caused by an actual startling event, but if the declarant’s
statement reflected a different startling event, the statement did not “relate to” the
actual startling event, and thus failed a necessary condition of admissibility.
Further, in such a case, the declarant’s excitement would not have been caused by
the same event that was reflected in the statement, which is also a condition for
admissibility. It is rarely disputed that some kind of startling event or condition
has occurred in cases like Burton and the instant case. Independent evidence of
some startling event or condition will usually be apparent from the declarant’s
demeanor. But the criteria for the excited utterance exception demand more than
just any startling occasion—they require that the statement had a certain
relationship with the particular event or condition that caused the excitement. And
given that the hearsay statement is presumptively unreliable before it meets the
criteria, it cannot alone establish the other criteria.
In practice, Burton provides a modest protection against admitting
unsupported hearsay statements when there is no other independent evidence
establishing that the underlying event occurred. Burton bars admission only in the
most extreme cases, when there is insufficient independent evidence of the
underlying startling event or condition. In such cases, these proffered statements
might be considered particularly valuable evidence, as they perhaps comprise the
13
only proof of a criminal act; but, for the same reason, they are the most dangerous
evidence if they are allowed to supply their own foundation for admissibility. As
a rule that guards against the admission of untrustworthy evidence in rare cases,
Burton should not be overruled.
In sum, Burton was not wrongly decided.
Burton’s independent-proof
requirement is compelled by the plain language of MRE 803(2) and the rationale
of the excited utterance exception. It was consistent with our treatment of the
analogous common-law spontaneous exclamation exception to the hearsay rule.
Moreover, the independent-proof requirement does not contradict MRE 104(a); it
simply requires a court to abide by the foundational elements of MRE 803(2).
I believe that Burton should not be overruled given the strength of the first
Robinson factor: Burton was not wrongly decided. To complete the Robinson
analysis, Burton’s independent-proof requirement does not defy practical
workability; it simply requires a trial court to make a specific evidentiary finding.
Reliance interests do not appear to be significantly involved here, except inasmuch
as overruling established precedent disrupts the certainty of the law. I would also
argue that there has been no change in the law or facts that would vitiate Burton’s
rule. It seems to me a squandering of resources to be rearguing the intricacies of a
decision made nearly 20 years ago, a debate that excludes the original parties and
nearly all the members of the Court at the time.
This case presented a direct challenge to Burton on facts similar to those in
that case. The prosecution did not appeal on the ground that the district court’s
14
evidentiary ruling was an abuse of discretion, but asked this Court to overrule
Burton. Because I would not overrule Burton, I would affirm the judgment of the
Court of Appeals.
Michael F. Cavanagh
Marilyn Kelly
15
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