November 01, 2019 Trial Tactics

Defendant’s Excited Utterance

Stephen A. Saltzburg

Nothing is clearer in the law of evidence that a voluntary statement by a defendant is admissible against him or her as a “party opponent statement” or an “admission” as long as it is relevant to a charged offense regardless of whether the defendant had personal knowledge of the contents of the statement and what the motive was for making the statement. Rules like Federal Rules of Evidence 801(d)(2)(A) establish a one-way street for admissibility of the defendant’s statements: The prosecution may use them because the defendant is responsible for whatever he or she says, and the defendant may not use them because they are deemed self-serving hearsay for which the prosecution is not responsible.

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