Sometimes one of the key pieces of evidence in your case is a hearsay statement. It may be an admission by the defendant or the defendant’s agent. It may be testimony from another trial or hearing that directly addresses an issue in your case. Whatever the situation, if you need to offer an out-of-court statement as evidence of the truth of the matter stated in the statement itself, you have a problem on your hands.

But just like getting a flat tire in the rain, it may not be an insurmountable problem. However, it’s still a problem, which means you need to plan your solution well in advance to implement it. Therefore, when planning your case in chief, consider whether you could benefit from the spur-of-the-moment hearsay exception. Let me give you an example.

The first case I tried before a jury was actually decided on a spontaneous statement from an unavailable hearsay witness. I won that lawsuit because I recognized my ear problem early enough to successfully implement my solution.

I was prosecuting a misdemeanor domestic violence case. The defendant was a six foot five inch tall, 275 pound thug. The victim was his wife who was five feet tall and 90 pounds. They were camping at the San Elijo beach camp, and he hit her with a clenched fist straight into her eye socket, producing a noticeable glow.

The next morning, a park ranger approached the couple. When he noticed the wife’s dark circle, he asked her: “What happened?” Suddenly, he became visibly upset as if he was reliving the events of the previous night. Tears well up in his eyes. Then, she pointed at her husband and blurted dramatically: “She hit me!”

One of the social realities of trying domestic violence cases is that victims find themselves in a vicious conflict of interest. On the one hand, they want their abusers to be jailed so that they are free from physical abuse. But, on the other hand, they may be financially dependent on their abusers, and therefore imprisonment would be extremely inconvenient for the household. They also fear retaliation. This leads to a phenomenon commonly known as “the recanting witness” or “the recalcitrant victim” or “absent.”

Naturally, when the trial came, the wife was “unavailable.” She dodged my subpoenas, she slipped into the web of battered women and homeless shelters, and left. That meant my star witness would be the park ranger who had to testify about what she said, that it was just hearsay.

Enter the spontaneous declaration, also known as the exit statement.

Evidence Code §1240 states that a statement is not impermissible hearsay if it “purports to narrate, describe, or explain a perceived act, condition, or event” and was made “spontaneously while the declarant was under the stress of arousal caused by such perception.” “. .”

The case law states that for the exception to apply, there must be (1) an occurrence that begins sufficiently to produce “nervous excitement and render utterance spontaneous and thoughtless”; (2) the expression must have been made before there was time for “contriving and misrepresenting,” that is, while nervous excitement was still in control of the reflective powers; and (3) “the expression must be related to the circumstances of the fact that caused it.” people v. Poggi (1988) 45 Cal.3d 306, 318. The idea is that statements made in the heat of the moment are less likely to be false.

The admissibility of spontaneous statements is a matter for the discretion of the trial court. people v. Pear (1991) 229 Cal.App. 3d 1282, 1290. Often the primary issue, as it was in my domestic violence case, is a lapse of time between the event and the declaration. But the key is that the statement must be made under the stress and excitement of the event “while the reflective powers were still in abeyance.” people v. Washington (1969) 71 Cal.2d 1170, 1176.

For example, the statements in Washington were made an hour after the fact, but were nevertheless admissible. See also, People v. Raley (1992) 2 Cal.4th 870, 893 (18 hour time interval); and In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 (2 day gap in time). However, in one case, the court found that 13 hours between the initial event and the declaration was too long for the exception to apply. Parch, supra, 229 Cal.App.3d at 1290.

There is no clear rule about the timing of the event and the utterance. The distinction seems to be whether declarer was still under the stress of the event. In my domestic violence case, for example, the court was convinced that the victim was under the stress of the assault because she became irritated and seemed to be reliving the attack when she identified her husband as her attacker. He was also standing right behind her when the park ranger asked him “what happened?”

The spontaneous expression exception is not limited to verbal testimony. Affidavits or depositions may also contain hearsay admitted by exception. Mechi vs. Picchi (1966) 245 Cal.App.2d 470.

If you plan to enter a spontaneous plea at trial, make sure you have all the necessary witnesses to set the stage. For example, be sure to call the person who heard the statement. Also, be sure to call the person who can testify to the declarant’s state of mind, meaning that the declarant was excited and under stress from the event.

Finally, be sure to consider all other possible exceptions, such as contemporaneous statements (Evidence Code §1241); statements related to the infliction or threat of bodily harm (Evidence Code §1370); statements from an abused elder or dependent adult (Evidence Code §1380); admissions (Evidence Code §1220); declarations of death (Evid. Code §1242); statements of mood, emotion, or physical sensation (Evid. Code §1250); statement against interest (Evid. Code §1230); or inconsistent prior statements (Evidence Code §1235).

If you know your case depends on a spontaneous plea, or any hearsay exception, plan ahead. Try to obtain your opponent’s stipulation as to admissibility, or subpoena all foundation witnesses, request an Evidence Code §402 hearing, and/or file in limine motions as necessary. Whatever the case, be proactive about getting your evidence admitted, especially if you can anticipate an objection.