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self-study / Civil Procedure

Apr. 24, 2024

Reflecting on spontaneous statements

Glendale Courthouse

Ashfaq G. Chowdhury


Columbia Law School, 2000

Can a statement about events five years in the past be admitted as a “spontaneous statement” under the exception to the Rule Against Hearsay set out in Evidence Code § 1240? The California Court of Appeal for the First Circuit, Division 3 dealt with that question recently, in People v. Lozano (Apr. 10, 2024) A165646, 2024 WL 1550785. The court concluded that, because the declarant had had time to reflect on her statement and had in fact reflected on it, and given that the statement concerned events that had occurred five years earlier, the statement was not admissible as a spontaneous statement .

I. Background

The defendant in Lozano had been convicted on various counts of sexual assault against two minors, Does 1 and 2. The statement at issue on appeal was a statement that one of the victims, Doe 1, had made to her mother on June 6, 2017, when Doe 1 was 16 years old. At the time of trial, both Doe 1 and her mother were already deceased.

The prosecution sought to introduce Doe 1’s 2017 statement to her mother through the reading of the prior testimony of the mother. The mother’s testimony recounted a brief conversation she had had with Doe 1 on June 6, 2017:

“As [the mother] walked up a path, she saw Doe 1 . . . outside the neighbor’s house. Doe 1 was crying, and she immediately told [her mother] ‘Mom, he’s been molesting me.’ Doe 1 identified defendant, who was a family friend, as the molester, and said it had been going on since she was 11 years old. According to [the mother], it was uncommon for Doe 1 to be emotional in that manner.”

(Lozano, 2024 WL 1550785 at * 1.)

The prosecution also sought to introduce “a more extensive statement Doe 1 made to a [responding] police officer” after her mother called the police. In that second statement, Doe 1 explained that the defendant had been molesting her since she was 11 or 12, that they had had sex “hundreds of times” and that she had told her mother about the molestation because “it’s bothered me so much and it doesn’t even feel good and I had to tell my mom, ‘cause I can’t hold it in any more. It hurts.” (Id. at *4.) She also noted that the defendant had sexually abused her the day before her conversation with her mother. (Id.)

During that second statement, Doe 1 further explained to the responding officer that during the two days prior to the conversation with her mother she had struggled with whether or not to continue seeing the defendant, confronted the defendant about the sexual abuse, and threatened to tell other people about the sexual abuse. (Id.)

The prosecution argued that both statements were admissible under Evidence Code § 1240 as spontaneous statements because Doe 1 was “very emotional, crying throughout the interview,” and further argued that “after years of abuse she reached ‘an emotional and psychological point where she couldn’t hold it in anymore.’” (Id.) The prosecution also pointed to Doe 1’s statement to the responding officer that the defendant had sexually abused her the day before her conversation with her mother as a triggering event that caused Doe 1 to have an emotional outburst to her mother. (Id.)

The trial court excluded the second statement to the officer as testimonial, but allowed the first statement that Doe 1 had made to her mother as a spontaneous statement under § 1240.

The defense then made a motion for reconsideration of the admissibility ruling, attaching to their briefs excerpts from another interview Doe 1 had with two police detectives later on June 6, 2017. In those interviews, which defense was not arguing were admissible, Doe 1 explained that she had struggled with her decision about disclosing the abuse and thought long and hard about talking to her mother about the abuse. (Id. at *5.)

The trial court denied the motion to reconsider, observing, inter alia, that Doe 1’s statement to the two police detectives about how she had struggled with her decision about disclosing the abuse was inappropriate to consider for purposes of ruling on the admissibility of Doe 1’s statement to her mother because the statement to the two police detectives was testimonial.

The trial court concluded that Doe 1’s statement to her mother was “completely out of the blue; that she might have thought about it before she blurted this out to her mother . . . does not undermine the spontaneity of the statement to her mother while she’s crying . . . .” (Id.)

II. The Lozano Court’s Legal Analysis

Evidence Code § 1240 provides as follows:

“Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and

(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

“For a statement to be admissible under this exception, (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstances of the occurrence preceding it.” (Id. at *6 [quoting People v. Poggi 1988) 45 Cal.3d 306, 318] [cleaned up].)

The Lozano court noted that “[a] spontaneous statement is made without deliberation or reflection,” and that the “crucial element” is “the mental state of the speaker.” (Id. [cleaned up].) A statement should not be admitted under § 1240, the court noted, when “the circumstances surrounding the statement show ample opportunity for deliberation and reflection.” (Id. [cleaned up].)

The court noted that “the mere passage of time does not necessarily render a statement inadmissible,” citing People v. Trimble (1992) 5 Cal.App.4th 1225, where, two days after her mother went missing, a toddler became hysterical after her father left her in the care of her aunt and exclaimed that her parents had had “a big, big fight and that daddy cut mommy with a knife.” (Id. at *6 [quoting Trimble, 5 Cal.App.4th at 1228-35].) The Lozano court noted that even though the statement in Trimble was made two days after the event it described, “[t]he evidence showed [the toddler] was extremely agitated when she made the statement, and she made it immediately after her father left the home, the first time since the incident there had been a trustworthy adult in whom she could confide. The appearance of the aunt, followed by a discussion of the victim’s disappearance, and then the defendant’s departure, was a triggering event, startling enough to provoke an immediate, unsolicited, emotional outpouring of previously withheld emotions and utterances.” (Lozano, 2024 WL 1550785, at *6 [quoting Trimble, 5 Cal.App.4th at 1228-35] [cleaned up].)

The Lozano court discussed several other cases where statements were admitted under § 1240 after several hours had passed, and a case where a “report[] of criminal conduct [was] made a day or two after the incident, but precipitated by some subsequent startling event.” (Id. at *7 [citing, inter alia, In re Emily A. (1992) 9 Cal.App.4th 1695, 1700 [child’s statement to mother about sexual abuse that had occurred a day or two earlier admissible under § 1240 because child made statement immediately after her sore pubic area was reinjured while playing]].)

The court clarified that “evidence that a declarant is under stress or in a state of high emotion while recounting a traumatic event is not enough—without the requisite link to a recent startling event—to establish a statement’s admissibility.” (Id.) As to this point, the court looked to People v. Gutierrez (2009) 45 Cal.4th 789, 808-12, where a child made a statement to his aunt two months after his mother was killed that incriminated the child’s father in his mother’s murder. “While making the statement, the child was crying, and scrunching up his face like he was angry.” (Id. [cleaned up].) The court noted that the California Supreme Court concluded that the statement was inadmissible under § 1240 because, unlike in Trimble, which presented an ostensibly similar situation, “the child in Gutierrez had had multiple secure opportunities to disclose the crime to other relatives and that, although the child was crying and upset, there was nothing to indicate that during the two-month period following his mother’s murder he had remained under the stress of excitement caused by witnessing the event and that his reflective powers were still in abeyance.” (Id. [cleaned up].)

After conducting this survey of the case law on § 1240, the Lozano court concluded that “Doe 1’s statement to [her mother] did not fall within [§ 1240] because she made it after considerable opportunity for deliberation and reflection.” (Id.) The court emphasized that the statement “described . . . events that took place as much as five years earlier” and that the court was “aware of no California authority applying the spontaneous statement hearsay exception to such remote events.” (Id.)

The court rejected the state’s attempt to point to the final incident of molestation, which took place the day before Doe 1 made her statement to her mother, as a triggering event that rendered the statement a spontaneous statement. The state argued that the final incident of molestation “was the startling occurrence that caused Doe 1 fresh stress and [thus] made her disclosure admissible.” (Id. at *8.) The court, in rejecting this argument, noted that Doe 1’s statement “was not about the events of the previous day” but instead “a continuing pattern of conduct that took place over a period of years.” (Id. [citing Poggi, 45 Cal.3d at 318 [“utterance must relate to the circumstances of the occurrence preceding it”].)

The court found additional support for its conclusion in Doe 1’s statement to the responding officer, which showed, in the court’s view, that Doe 1 “had the opportunity to reflect on how to respond to defendant’s molestation, [and that] she actually did reflect.” (Id. [emphasis in original].) The court also found that Doe’s statements to the two detectives later that day further bolstered its conclusion, as those statements “underline[d] that Doe 1 reflected on her decision to disclose the abuse to her mother.” (Id.)

The court found that the trial court had erred in “refus[ing] to consider the full factual context for Doe 1’s disclosure [to her mother]” because Doe’s statements to the police were, in the trial court’s view, testimonial. (Id. at *9.) “[I]t is well established that the Confrontation Clause limits the evidence a State may introduce without limiting the evidence a defendant may introduce . . . .” (Id. [cleaned up] [emphasis added].) The court noted that the trial court, despite its stated concerns about relying on testimonial statements to decide the admissibility issue, had in fact relied on the testimonial statements to the responding officer when it noted that Doe 1 had acknowledged that she had been molested the day before her statement to her mother. The court noted that “at least one court has taken account of inadmissible testimonial hearsay for the limited purpose of considering whether a different statement qualified as spontaneous under section 1240.” (Id. [citing People v. Pirwani (2004) 119 Cal.App.4th 770, 786-787].)

The court found that the admission of Doe 1’s statement to her mother was an abuse of discretion and that the admission was prejudicial, at least as to count 1 in the case, on which the defendant had been convicted for committing a lewd act against a child under the age of 14, and therefore reversed the conviction on that count. (Id. at *10.)

III. Conclusions

The Lozano court provides a careful discussion of California case law on the spontaneous statement exception. Ultimately, the court placed great emphasis on the length of time that had passed between the events and the statement—more than five years—placing this case outside the range established for spontaneous statements in prior cases, where the intervals between event and statement were hours or days. And the decision helpfully clarifies that a trial court may consider inadmissible and testimonial statements when determining the admissibility of a different statement. (Id. at *9.)

Still, the reader may come away from this decision unsure about how an exception that requires lawyers and courts to determine, among other things, whether “nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance” will be predictably applied.

As noted in past editions in this column and by other legal commentators, the welter of exceptions to the Rule against Hearsay—besides resembling something from the old boardgame Mousetrap (Glass, M., Barlow, G. & Kramer, H. (1963) Mousetrap [Board game] Hasbro)—tends to include many exceptions that appear to have been handed down from long ago through the common law as a form of folk wisdom. The exceptions for dying declarations, spontaneous statements, etc. are not, it’s probably safe to say, empirically or scientifically supported exceptions. But beyond that, requiring as they do, lawyers and courts to examine whether “nervous excitement” “still . . . dominate[d]” at the time of a statement or whether a statement was made “under a sense of immediately impending death,” these exceptions often draw lawyers and courts into areas far from the statutory and case analysis in which they are chiefly trained.

And, just as a further question, what kind of legal standards are these hearsay rules and exceptions? They are not the kind of positive law intended to regulate conduct: The general public is not generally going around conforming their conduct with the Rule against Hearsay and its various exceptions in mind. These are rules and exceptions developed over time to try to create a kind of imagined or idealized epistemic hygiene, allowing in statements deemed sufficiently “reliable” for consideration by a jury—for various and often unrelated justifications. (See, e.g., Ronald J. Allen and Brian Leiter, Naturalized Epistemology and the Law of Evidence, 87 Va. L. Rev. 1491, 1503-04 (2001) [discussing the “epistemic paternalism” involved in the design of the rules of evidence].)

We have adopted exceptions like the spontaneous statement exception probably for no better reason than because they are old and hoary. (This is where one inserts Holmes’s quote about a page of history being worth a volume of logic in the law.) But do these exceptions make sense? They can be difficult for courts to apply consistently, as they are often couched in vague, outdated language and require attempts to divine inner mental and emotional states.

Again, as a state trial court judge in Glendale, I can offer no grand proposal for an overhaul of our current hearsay regime, but it’s worth noting the difficulties produced by the unwieldy apparatus of the Hearsay-Industrial Complex the law has built up over the years. The Lozano decision seems, to this reader, to be an example of a court working hard to synthesize and draw consistent principles from a body of case law built up around a somewhat nebulous legal standard. It’s probably unreasonable to regularly expect consistency and clarity from such a project. Of course, the same could be said about many areas of the law.


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