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Some Observations on the Law of Evidence (with D. Slesinger), 28 Columbia Law Review 432 (1928)


Spontaneous utterances, exclamations or declarations are, under

certain conditions, admissible in evidence though the party who made

them does not take the stand. According to most courts the occasion

must be startling enough to cause shock, which in turn creates an emotional

state. The utterance must be made under stress of that emotion;

it must be "spontaneous and natural; impulsive and instinctive"

it should be immediate, or "so clearly connected (with the occasion)

that the declaration may be said to be the spontaneous explanation of

the real cause. Although in some jurisdictions there is insistence that

the declaration be "contemporaneous" with the act, or "while the act

is going on," the progressive view seems to be that the time interval,

beyond which a declaration would no longer be spontaneous, is in the

sound discretion of the trial court. Thus, in one case, after a wreck the

conductor came up to the engine, went back to the caboose, and then

walked a mile to a telephone, where he consumed twenty-five minutes

in calling headquarters. On his return to the train, while moving the

injured to the caboose, he remarked that a defective rail had caused

the disaster, and his statement was admitted in evidence as a spontaneous

declaration. In other cases declarations made from a few seconds

to fifteen minutes after the occurrence have been termed "mere narration

of past events," and therefore excluded.

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