Jones's statements during the interrogation were made in response to specific questions by Officer Paiva, and the text of those questions was therefore helpful to understand the full context of Jones's answers. Excited Utterance. A declarants statement is not excluded as hearsay under Rule 801 if it is not being offered for the truth of the matter asserted (i.e., the defendant did X), but rather for some other permissible purpose such as explaining the defendants motive or showing the victims state of mind (e.g., I was scared of the defendant because I heard he did X). "); State v. Reed, 153 N.C. App. Id. A statement describing Therefore, some statements are not objectionable as hearsay . we provide special support Ohio v. Roberts, 448 U.S. 56 (1980), established that a hearsay exception must meet one of two Constitutional standards: it must have been "firmly rooted" at the time the Sixth Amendment was written, or it must have "particularized guarantees of trustworthiness.". Id. Rule 801 establishes which statements are considered hearsay and which statements are not. Evidence 503. Definitions That Apply to This Article. 45, requiring reversal. WebTutorial on the crimes of stalking and harassment for New Mexico judges. Rule 801(c) defines hearsay, and also opens up the first "hole" in the rule: to be hearsay, a statement must be offered to prove the truth of the matter asserted. The Sixth Amendment to the Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." (Any of several deviations from the hearsay rule, allowing the admission of otherwise inadmissible statements because Don't overdo itDespite the abundance of helpful cases on this issue, prosecutors should be cautious about overusing this argument as a fallback basis for getting challenged statements into evidence as nonhearsay. Is the Translation or Interpretation of Anothers Statements Hearsay? 54 CRIM.L.BULL. WebSee State v. Thomas, 167 Or.App. Rule 5-805 - Hearsay Within Hearsay. WebThis is not hearsay. Box 248087Coral Gables, FL 33146United States, Subscribe to this fee journal for more curated articles on this topic, Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal, Law & Society: Criminal Procedure eJournal, Evidence & Evidentiary Procedure eJournal, Legal Anthropology: Criminal Law eJournal, We use cookies to help provide and enhance our service and tailor content. From Wikibooks, open books for an open world, Rule 801(d). Stanfield v. Laccoarce, 284 Or 651, 588 P2d 1271 (1978), Whether routinely prepared record is made within regular course of business depends on whether circumstances under which record is made furnish sufficient checks against misstatement to invest record with some badge of truthfulness. For example, a patient complains to their doctor (803(4)), and the doctor writes down the complaint in a medical record (803(6)), which frightens a nurse and causes him to run to tell an orderly (803(2)), who writes another medical record (803(6)), which is introduced as evidence. State v. Chase, 240 Or App 541, 248 P3d 432 (2011), Statement made by special victim of sexual conduct, Intention of legislature under this rule is that defendant not be convicted on hearsay alone. Webhave produced an effect upon his state of mind. A present sense impression can be thought of as a "play by play." this Court does not believe fall under the cited hearsay exceptions, the People would seek to admit them for their effect on the listener, and not to the truth of the matter asserted. (c) Hearsay. State v. Harris, 78 Or App 490, 712 P2d 242 (1986), Statements to 911 dispatcher and statements made to responding police officer qualified as excited utterances. 40.460 Pub. 8C-801, Official Commentary (explaining that a preliminary determination will be required to determine whether an assertion is intended, but also noting that [t]he rule is so worded as to place the burden upon the party claiming that the intention [to make an assertion] existed and ambiguous and doubtful cases will be resolved against him and in favor of admissibility); see also State v. Peek, 89 N.C. App. State v. Verley, 106 Or App 751, 809 P2d 723 (1991), Sup Ct review denied; State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff'd 315 Or 420, 846 P2d 390 (1993), Identification statement made by five-year old child to physician during medical examination is admissible in prosecution for sexual abuse of child. Term. defamation, contracts, wills) HEARSAY ANALYSIS Is the statement hearsay? Closings and Jury Charge Time Unit Measurement What is it and how to use it! Nevertheless, because no assertion is intended, the evidence is not hearsay and is admissible.). 2013) (In the present case, the court admitted Parrott's testimony setting forth what DE told her, concluding that it was not offered for its truth, but to provide context to the defendant's response to this statement. The opinion of plaintiffs expert was consistent with that of the interpreting radiologist, who was not testifyingat trial. 4. This page was processed by aws-apollo-l1 in 0.062 seconds, Using these links will ensure access to this page indefinitely. A statement that is being offered against a party and is (A) the partys own statement, in either an individual or arepresentative 803(1). See State v. Black, 223 N.C. App. 64 (2014) (recordings of witness's telephone calls from jail were admissible at murder trial for nonhearsay purpose of corroborating witness's testimony that defendant had shot victim); State v. Johnson, 209 N.C. App. Don v. Edison Car Company, New Jersey Appellate Division May 9, 2019 (Not Approved for Publication). We will always provide free access to the current law. at 51. Hearsay is a complicated rule fraught with exceptions, and hearsay issues are a common point of argument in the courtroom. Hearsay Exceptions: Availability of Declarant Immaterial . State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011), State v. O'Brien, 6 Or App 34, 485 P2d 434, 486 P2d 592 (1971), aff'd262 Or 30, 496 P2d 191 (1972), 22 WLR 421 (1986); 26 WLR 402, 406, 423 (1990); 37 WLR 299 (2001); 82 OLR 1125 (2003), General rule is that polygraph evidence is inadmissible in proceeding governed by Oregon Evidence Code. california hearsay exceptions effect on listener. State v. Scally, 92 Or App 149, 758 P2d 365 (1988), Hearsay statement may not be admitted over Confrontation Clause objection unless prosecution produces declarant or demonstrates unavailability of declarant. We conclude, therefore, that Parrott's testimony did not constitute hearsay and was properly admitted by the court.).A factual pattern recently addressed by the Supreme Courts of Florida, Massachusetts and Michigan, involves police interrogation of the criminal defendant during which the police officer expresses his opinion of the defendants guilt, calls the defendant a liar, states that a witness has made a statement on personal knowledge detailing the accuseds guilty conduct and/or that someone, maybe a relative, has told the authorities that she knows the defendant did the crime, etc.The accused during this police interrogation either stays silent, denies the truth of fact and opinion accusatory statements by the police officer or alleged statements of others related by the police officer and/or responds in a positive or descriptive manner solely to non-accusatory statements made by the police officer during the interrogation.Under the foregoing circumstance, the prosecution has argued relevancy to establish investigatory background, course of investigation, or context. Evidence is hearsay if it is a statement (that is, an assertion, either oral or written), made by the declarant (i.e., the person who made the statement) at any time or place other than while testifying in court at the current trial or hearing, and the statement is being offered to prove the truth of the matter asserted. 403 objection, is clearly designed to improperly favor the prosecution by means of the inevitable employment substantively of such statements such as Marys by the jury. A hearsay objection is made when a witness relates the actual content of an out-of-court communication. 2009), hearsay exception. 802. The 803 exceptions are preferred to the 804 exceptions, as they generally carry greater credibility. increasing citizen access. This confrontation clause has been interpreted as a further restriction on the admissibility of statements by out-of-court declarants in criminal cases. We find no error in the trial courts evidentiary ruling, and the cursory and indirect reference to the note by Dr. Dryer is not a basis to overturn the verdict. New Jersey Model Civil Jury Charge 8.11Gi and ii. A statement of a then-existing condition must be "self-directed": either describing what the declarant is feeling or what the declarant plans to do. WebThere are a number of exceptions to the hearsay rule (including present-sense impression, excited utterances, declarations of present state of mind, dying and the business records exceptions), as well as things defined not to be hearsay (admission of a party-opponent, and prior statements of a witness). The giving of a limiting instruction is appropriate.Statements made to a police officer relied upon by the police officer and thus shaping the police officers subsequent conduct or investigation is frequently referred to as investigatory background or similar terms. 801(a)-(c): Effect on Listener-Investigatory Background; Interrogation Accusations and Opinions (August 3, 2018). State v. Campbell, 299 Or 633, 705 P2d 694 (1985), Out of court statement by unavailable child concerning abuse of another child was not within scope of exception. 4. 705, provided that the questions include facts admitted or supported by the evidence. (internal quotation omitted)). The Exceptions. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied, Exception embodied in this section is to be used rarely and only in situations where interest of justice requires. Attacking and Supporting Credibility of Declarant, https://en.wikibooks.org/w/index.php?title=Federal_Rules_of_Evidence/Hearsay&oldid=3594071, Creative Commons Attribution-ShareAlike License. 887 (2018) , Available at SSRN: If you need immediate assistance, call 877-SSRNHelp (877 777 6435) in the United States, or +1 212 448 2500 outside of the United States, 8:30AM to 6:00PM U.S. Eastern, Monday - Friday. Effect on listener statements are not hearsay as relevant based solely upon the fact said when offered to establish knowledge, notice, or awareness, etc., on the part of the listener. When offered as investigatory background the evidence is not hearsay. Such knowledge, notice, or awareness, etc., is relevant when the probable state of mind of the listener is itself an issue. Where possible, lawyers usually attempt to admit prior inconsistent statements under 801(d)(1)(A), simply because of the greater leeway they have to use the statement. 20. State v. Reed, 173 Or App 185, 21 P3d 137 (2001), Sup Ct review denied, Where there are multiple hearsay statements by declarant, corroborative evidence need not bear directly or distinctly on particular statement. Webits exceptions, and will review Illinois law on admission of hearsay when no specific exception exists. Forfeiture by Wrongdoing Dying Declarations (Statement Made Under the Belief of Impending Death) Defendant contends that plaintiffs cross-examination of Dr. Dryer ran afoul of the standards set forth in James v. Ruiz, 440 N.J. Super. 144 (2011) (statements in detectives interview with defendant about what other witnesses allegedly saw defendant do were not hearsay, because they were offered for the nonhearsay purpose of giving context to the defendants answers and explaining the detectives interview technique); State v. Brown, 350 N.C. 193 (1999) (statements made to victim about getting a divorce were not offered for truth of the matter); State v. Davis, 349 N.C. 1 (1998) (statements about defendant being fired were offered for nonhearsay purpose of showing motive); State v. Dickens, 346 N.C. 26 (1997) (recording of statements made in 911 call was admissible for nonhearsay purpose of showing that call took place and that the accomplice was the caller); State v. Holder, 331 N.C. 462 (1992) (statement properly admitted to show state of mind); State v. Tucker, 331 N.C. 12 (1992) (trial court erred in precluding admission of the statements because they were either nonhearsay or admissible under a hearsay exception); State v. Woodruff, 99 N.C. App. Alleging & Proving Prior Convictions, 202.1 States Election of Offenses at Trial, 205.1 Prosecuting a Business or Organization, 227.1 Motion to Dismiss: Insufficient Evidence, 501.1 Basic Concepts, Recent Changes to Laws, 601.1 Reliability, Admissibility, and Daubert, 663.1 Polygraphs, Plethysmography, and Witness Credibility, 701. WebRule 5-804 - Hearsay Exceptions; Declarant Unavailable. Through social See Carmona v. Resorts Intl Hotel, Inc., 189 N.J. 354, 376 (2007) (Where statements are offered, not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not deemed inadmissible hearsay. (quoting Russell v. Rutgers Cmty. Because we find no abuse of discretion in allowing plaintiff to testify about the surgical treatment option, plaintiffs counsels remarks in opening, whichaccurately set forth the evidence the jury would hear, were permissible pursuant to the courts evidentiary ruling and are therefore not a basis to reverse the verdict. Several of the most common examples of these kinds of statements are summarized below. There is an exception to that rule when the witness testifies that he/she (or another) did something because of what This page was processed by aws-apollo-l1 in. License Defense (Drug/Mental Health Issues), Negligent Inspection Truck Accidents in New Jersey, 2018 New Jersey Crime Statistics By County (PDF), Allowing the jury to hear a Hearsay statement. How. unless they are non-hearsay or fall into one of the enumerated exceptions to the hearsay rule, some of which are discussed below. : A-56-18 Decided February 17, 2023 Submitted byNew Jersey Drug Crime Lawyer, Jeffrey Hark. Once a statement qualifies under Rule 801(d)(1)(A), on the other hand, it can be used for any purpose for which it is relevant. 315 (2018); State v. Leyva, 181 N.C. App. The rule against hearsay Section 803. Hearsay exceptions; availability of declarant immaterial Section 804. Rule 801(d)(1) focuses on the statements of witnesses; Rule 801(d)(2) focuses on the statements of parties, which are known as admissions. by: Ryan Scott December 16, 2016 one comment. A child's statement to a parent, or an elderly person's statement to the younger relative taking care of them, could both be 803(4) statements. Attacking and supporting credibility of declarant) or as otherwise provided by law. Self-authentication), ORS 107.705 (Definitions for ORS 107.700 to 107.735), ORS 124.050 (Definitions for ORS 124.050 to 124.095), ORS 163.205 (Criminal mistreatment in the first degree), ORS 40.465 (Rule 804. Even a matter-of-fact statement can be admitted for purposes other than its truth. With respect to both the radio call and our hypothetical scenario, if the facts were altered to include that the police officer/detective when he actually arrived at the scene, shot a person leaving the building, the fact the policeman had been advised concerning a murder may, depending on other circumstances, be relevant in determining the lawfulness of his shooting. Thus, the rule generally is to admit such evidence with a limiting instruction, unless the probative purpose of the statement is substantially outweighed by the danger of its improper use. Ibid. Here is a short list and description of some the most useful hearsay exceptions: Party admissions; Admissions are described above. In that regard, there was no tie to break: Dr. Yao testified he did not believe any future treatment by a neurosurgeon would cure the syrinx, and Dr. Daniels testified that in his opinion plaintiff would not benefit from surgery. Rules 803 and 804 deal with exceptions to the hearsay rulestatements which are hearsay, but are nevertheless admissible. This does not, however, create a back door for admitting the impeaching statement as substantive evidence. 123, 136-37 (App. State v. Michael Olenowski Appellate Docket No. WebARTICLE VIII. Point denied.); State v. Paul B., 70 A.3d 1123, 1137 (Conn.App. Nonhearsay functionally acts as a hearsay exception, but it isn't a hearsay exception because it is not hearsay. . at 71. 803(4). See, G.S. State v. Carter, 238 Or App 417, 241 P3d 1205 (2010), Sup Ct review denied, "Factual findings" resulting from investigation pursuant to law are limited to reports based upon personal knowledge of investigator or upon verifiable fact rather than opinion. 617 (1999) (inmates command to the defendant to leave or hurry was not hearsay: [d]irectives, such as those here, are not hearsay because they are simply offered to prove that the directive was made, not to prove the truth of any matter asserted therein.);G.S. B. - (a) OK to show D was on notice of broken jar - (b) NOT admissible to prove there actually was a broken jar of salsa In addition, Records of regularly conducted activity (ORS 41.690), This section vests considerable discretion in trial judge concerning admissibility. Div. Article VIII of the Federal Rules of Evidence deals with hearsaythe rule that a statement made out of court may not be admitted for its truth. - "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See Townsend v. Pierre, 221 N.J. 36, 58 (2015) (The use of hypothetical questionsin the presentation of expert testimony is permitted by N.J.R.E. Hearsay is any statement made by the declarant at a time or place other than while he or she is testifying at the trial or hearing that is offered to prove the truth of the matter asserted. 2. N.J.R.E. 1. Abstract. We held that the plaintiff could not ask a medical expert witnesses whether their reading of the CT scan was consistent or inconsistent with that of a non-testifying radiologist, thereby utilizing the radiologists report as a tie breaker on the contested issue of whether plaintiff had disc bulges. Lepire v. Motor Vehicles Div., 47 Or App 67, 613 P2d 1084 (1980), Declarations of rape victim identifying her attacker that were made more than hour after attack were admissible under "spontaneous exclamation" exception to hearsay rule. In Loetsch v. NYC Omnibus, 291 NY 308 (1943), the state-of-mind exception was applied to the speak-er. WebThe following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) Present Sense Impression. v. Cornett, 121 Or App 264, 855 P2d 171 (1993), Admissibility of videotape depends on admissibility of statements contained in it. at 71-72. The rationale for requiring a hearsay declarant to have personal knowledge when the declarant s statement is admitted for its truth is identical to the rationale for requiring a witness to have personal knowledge of the subject matter of Such a statement may alternatively be relevant as bearing upon the reasonableness of the listeners subsequent conduct, e.g., apprehensive of immediate danger.Of course, the same statement which is not hearsay when offered for its effect on listener, i.e., relevant for the fact said, is hearsay under Fed.R.Evid. State v. Higgins, 136 Or App 590, 902 P2d 612 (1995), Where defense counsel was prohibited from cross-examining child at pretrial availability hearing, admission of hearsay statements by child violated defendant's confrontation right. See also INTENTHearsay . Although the Supreme Court in Crawford did not give a clear definition of a testimonial statement, it can be understood as any statement which the declarant would understand would eventually be used in a courtroom. 8C-801(a). WebWhat is of consequence is simply that the listener heard the statement or that the speaker made the statement. State v. Reed, 173 Or App 185, 21 P3d 137 (2001), Sup Ct review denied, "Good cause" for failure to give timely notice of intent to use statement refers to circumstances that cause prosecution to be unable to comply with notice requirement. HEARSAY Rule 801. See, e.g., State v. Robinson, 355 N.C. 320 (2002) (testimony from one witness about whether another witness had pointed anyone out in a mug shot book was inadmissible hearsay); State v. Marlow, 334 N.C. 273 (1993) (Howell's actions of attempting to give Horton the tape player and later attempting to give him a twenty-dollar bill were nonverbal assertions also constituting hearsay); State v. Satterfield, 316 N.C. 55 (1986) (declarants gesture, in response to officers question, of pointing to the drawer where knife could be found was nonverbal conduct intended as an assertion, and therefore inadmissible as hearsay). Excited Utterance. Our review of the record demonstrates that the statement was admitted for the limited purpose of providing context to the defendant's response. Rule 802 pro-vides that hearsay is not admissible unless it falls under a prescribed hearsay exception. 107 (1990) (Clearly, these statements were not offered to prove the truth of the matter asserted. This contention borders on the frivolous.); State v. Quick, 323 N.C. 675 (1989) (victim's letter to murder defendant and testimony of victim's grandmother were not hearsay where they were offered to show that defendant's motive for killing victim was because she wished to discontinue their romantic relationship); State v. Hunt, 323 N.C. 407 (1988) (witness' statement that his wife took out insurance policy on her other husband and said that she did it to have him killed, was not offered for truth of the matter, but for the nonhearsay purpose of proving why codefendants conspired to kill her other husband). Dept. Rule 803 (2) provides a hearsay exception for [a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Startling Event/Condition. In this case, the question posed to Dr. Dryer did not seek to establish that his opinion was consistent with Dr. Argintineus opinion; rather it simply asked whether Dr. Dryer himself felt that a fusion was an appropriate treatment for a syrinx. Mattox v. U.S., 156 U.S. 237, 242-43 (1895). Even assuming that the evidence had a hearsay component, when a statement has both an impermissible hearsay aspect and a permissible non-hearsay aspect, a court should generally admit such evidence with a limiting instruction, unless the probative purpose of the statement is substantially outweighed by the danger of its improper use. Spragg,293 N.J. Super. The statement is circumstantial evidence of the declarant's state of mind of hostility towards D just by the fact that it was made. Present Sense Impression. 803. WebNormally, that testimony, known as hearsay, is not permitted. 802. . The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Statement by a party opponent. In the Matter of J.M. Allowing testimony regarding the content of an informant's out-of-court statement often involves statements having hearsay components. For further discussion, see Jeff Welty, "The 'Explains Conduct' Non-Hearsay Purpose," N.C. Criminal Law Blog, Oct. 13, 2009. 36 (1989) (there was no hearsay-within-hearsay problem presented here because the statements of the third party declarants were not offered for their truth, but to explain the officer's conduct). 1 (2002) ("A careful reading of the testimony reveals that the remaining portions of the challenged testimony were not offered for the truth of the matter asserted, rather they were offered for the non-hearsay purposes of showing state of mind and effect on the listener. State v. Logan, 105 Or App 556, 806 P2d 137 (1991); State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff'd 315 Or 420, 846 P2d 390 (1993); State ex rel Juv. State v. Moen, 309 Or 45, 786 P2d 111 (1990), Statements made by child victim to physician and to physician's assistant about sexual abuse by defendant were admissible as statements made for purposes of medical diagnosis or treatment, even though reason victim was taken to physician was for possible diagnosis of sexual abuse. Since each statement in the chain falls under a hearsay exception, the statement is admissible. Exceptions to Hearsay Out-of-court statements by a party to a case are almost always admissible against that party, unless the statements are irrelevant or violate another rule of evidence. It is well established that hearsay is not admissible at trial unless an exception applies. An excited utterance may be made immediately after the startling event, or quite some time afterward. The court also determined that each of the allegations in the statement was supported by testimony from prior witnesses and, thus, was supported by evidence already in the record. Dept. State v. Hobbs, 218 Or App 298, 179 P3d 682 (2008), Sup Ct review denied, To offer particulars of statement, state must identify specifically which hearsay statements it will offer as evidence. Applying these standards, we conclude that the trial court did not exceed the bounds of its discretion when it permitted plaintiff to testify about the recommendations for surgery for the purpose of showing that the statements were in fact made and that plaintiff took certain actions in response. 26, 2021). Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992), Where state law completely precludes reliable, materially exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitution. 802. However, hearsay evidence or testimony can be valuable evidence for judges or juries when deciding a case. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former Testimony. State ex rel Juvenile Dept. 30, 1973, 87 Stat. Written, oral, or nonverbal communication is a statement subject to the hearsay rules only if the communication is intended as an assertion. See G.S. Evaluating an 803(4) statement requires both a subjective determination that the declarant was contemplating diagnosis or treatment, and an objective determination that the statement was pertinent to diagnosis or treatment. 802. Even if it were hearsay, it would, however, be within the state of mind exception to the hearsay rule, FRE 803(3). State v. Rodriguez-Castillo, 345 Or 39, 188 P3d 268 (2008), When determining trustworthiness of hearsay statement not specifically covered by statute, trial courts should not consider credibility of witness who provides corroborating testimony. 158 (2016) (victims' statements to officer were admissible to corroborate admitted statements to health care personnel who treated them at the time of the assaults); State v. Royster, 237 N.C. App. If any one of the above links constituted inadmissible hearsay, Declarations against interest; A nonparty's out of court statement may be admissible as proof of the matter asserted if certain threshold criteria can be established. 4 . Hearsay exceptions; availability of declarant immaterial, = effect on listener (gets in to show notice provided to Sal) I just cleared some gunk = effect on listener: offered to show that the boss, Sal, had notice that there may have been gunk on the line (does not get in for the truth that there was gunk in the line, only that Sal had notice.) WebHearsay rule is the rule prohibiting hearsay (out of court statements offered as proof of that statement) from being admitted as evidence because of the inability of the other party to cross-examine the maker of the statement.. For more information about impeachment, including the circumstances when extrinsic evidence such as a prior statement may be used to impeach, see the related Evidence entry on Impeachment: Generally [Rule 607]. The oblique reference to Dr. Arginteanus note was engendered by Dr. Dryers failure to respond to the leading hypothetical question with a simple no. Instead, Dr. Dryer asked a question in response, whether it was a posterior or anterior fusion. State v. Wilcox, 180 Or App 557, 43 P3d 1182 (2002), Sup Ct review denied, Spontaneous statements made by four-year-old child while she was still suffering pain from sexual assault were made under circumstances guaranteeing trustworthiness and were, therefore, admissible under this exception to hearsay rule. N.C. Rule 803 (3) provides a hearsay exception for statements of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates Docket No. Cries for help to police are a good example of an excited utterance, although depending on their content, they may not be admissible against a criminal defendant under the Crawford rule. review denied, 363 N.C. 586, (2009) ("Because defendant changed his story as a result of these out-of-court statements, it can be properly said that these questions were admitted to show their effect on defendant, not to prove the truth of the matter asserted.
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