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Michael J. Hutter

In People v. Cummings, 2018 NY Slip Op. 03306 (May 8, 2018), the Court of Appeals addressed New York’s long recognized excited utterance exception to the hearsay rule. While this exception has been the subject of numerous decisions, the court’s opinion is notable for two separate reasons. First, the court in a carefully written opinion authored by Judge Rowan Wilson clearly doubles-down on the need to establish a sound foundation to invoke the exception, emphasizing especially the requirement that the declarant personally observed the event described in the excited utterance. Second, the concurring opinion, authored by Judge Jenny Rivera, but not joined in by any other judge, raised concerns about the exception’s continuing validity based upon recent scholarship by some courts and commentary questioning its underlying theory of reliability and thus admissibility. These two reasons are sufficiently significant to prompt a discussion of Cummings.

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