United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the government's Motion
in Limine to Admit Excited Utterance and Present
Sense Impression Statements. Doc. 73. In addition to this
Motion, the government also filed a Sealed Appendix. Doc. 74.
Mr. Perrault filed a Response opposing the Motion in
Limine [Doc. 107], and the government then filed a Reply
[Doc. 114]. Having considered the Motion, relevant law, and
being otherwise fully informed, the Court will defer ruling
on the admissibility of these hearsay statements until trial.
February 25, 2019, the government filed a Motion in
Limine for a pre-trial determination of the
admissibility of excited utterance and present sense
impression statements made by John Doe 3 regarding the
alleged abuse by Mr. Perrault. Doc. 73. The statements
include: (1) statements John Doe 3 made to his friend's
mother after fleeing the rectory; (2) a description of the
abuse by John Doe 3 to his mother when she picked him up from
his friend's house; (3) statements made an hour and a
half to two hours after the alleged abuse when John Doe 3 and
his father went back to the church to confront Mr. Perrault;
and (4) a handwritten letter by John Doe 3 detailing the
abuse. Id. at 2. The government argues that these
statements are admissible as exceptions to the rule against
hearsay as present sense impressions and excited utterances,
pursuant to Rules 803(1) and 803(2) of the Federal Rules of
Evidence. Id. at 2-6.
Perrault filed an untimely Response on March 11, 2019, in
which he argues: (1) the statements are not admissible as
present sense impressions because they were not made
substantially contemporaneously with the event in question;
(2) the statements are not admissible as excited utterances
because there is no independent corroboration of a startling
event or indicia of reliability; and (3) John Doe 3's
written statement is testimonial in nature and therefore its
admission would violate the Confrontation Clause. Doc. 107 at
Reply, the government again asserts that the proffered
statements by John Doe 3 are admissible both as present sense
impressions, pursuant to Rule 803(1), and as excited
utterances, pursuant to Rule 802(2). Doc. 114 at 2.
Federal Rules of Evidence define hearsay as an out of court
statement that is offered to prove the truth of the matter
asserted in the statement. Fed.R.Evid. 801. Hearsay is
generally inadmissible except as provided by federal
statutes, the Federal Rules of Evidence, or other rules
prescribed by the Supreme Court. Fed.R.Evid. 802.
sets forth several exceptions to the rule against hearsay.
The present sense impression exception allows into evidence
statements “describing or explaining an event or
condition, made while or immediately after the declarant
perceived it.” Fed.R.Evid. 803(1).
excited utterance exception allows in statements
“relating to a startling event or condition, made while
the declarant was under the stress of excitement that caused
it.” Fed.R.Evid. 803(2). To qualify as an excited
utterance, there are three requirements that must be met: (1)
there must be a startling event; (2) the declarant must have
made a statement under the stress of the event's
excitement; and (3) there must be a nexus between the content
of the statement and the event. United States v.
Magnan, 863 F.3d 1284, 1292 (10th Cir. 2017) (citing
United States v. Smith, 606 F.3d 1270, 1279 (10th
Cir. 2010)). The government correctly asserts that no
independent corroboration is necessary for an excited
utterance to be admissible. See United States v.
Brown, 254 F.3d 454, 460 (3d Cir. 2001) (“we
conclude that an excited utterance may itself be sufficient
to establish that a startling event occurred and that the
question whether corroborating evidence independent of the
declaration is needed in a given case to establish the
occurrence of such an event is committed to the discretion of
the trial judge”).
Court will make determinations on admissibility of hearsay
statements at trial. Assuming that the government is able to
establish the proper foundation for hearsay statements it
seeks to admit under the present sense impression or excited
utterance exceptions, the statements will be admitted.
IS THEREFORE ORDERED that the Court will reserve
ruling on this motion for trial. However, as long as the
government is able to lay a proper foundation for the
statements as admissible under the ...