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F 2.027
Spontaneous Statement Exception To Hearsay Rule (EC 1240(a)):
Required Preliminary Facts
The [testimony of witness _________] [the out-of-court statement of ________] has been offered into evidence as an alleged spontaneous statement. You may not consider this statement for any purpose unless you first find that the following facts have been proven by the prosecution:
1. The statement of the witness was intended to describe or explain an act or condition perceived by the witness.
2. The statement was made spontaneously, while the witness was under the stress of excitement caused by the perception.
[Unless the prosecution has proven the existence of all these preliminary facts by a preponderance of the evidence, you must disregard [that portion] [the] testimony of witness _________.]
Points and Authorities
EC 403(c) requires the trial court, upon request, to instruct the jury regarding the necessity of finding preliminary facts. The statutory language is as follows:
“If the court admits the proffered evidence under this section, the court: (1) may, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.”
To qualify for admission under the spontaneous statement exception to the hearsay rule, “an utterance must first purport to describe or explain an act or condition perceived by the declarant. (EC 1240(a).) Secondly, the statement must be made spontaneously, while the declarant is under the stress of excitement caused by the perception. (Id., subd. (b).)” [Citations.] (People v. Morrison (2004) 34 C4th 698, 718
The standard of proof by preponderance of evidence language is problematic [because it may be confusing to the jury to receive this standard as well as the proof beyond a reasonable doubt standard. (See e.g. FORECITE F 2.001a, F 2.52a [Caveat].)
“The foundational prerequisites are fundamental, of course, to any exception to the hearsay rule. [Citation.]” (Morrison, 34 C4th at 724-25.)
ALERT: As to the admissibility of testimonial hearsay see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant]; see also FORECITE PG VII(C)(43) [Crawford Update].)
NOTES: Additional briefing on the reasonable doubt issue is available to FORECITE subscribers. Ask for Brief Bank # B-515.
