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Scholars not only acknowledge that “the statement itself … certainly can be considered” but also assert that the generally prevailing practice is to consider the statement itself sufficient proof of the exciting event. 2 McCormick on Evidence § 272, at 256-57 (Kenneth S. Broun ed., 6th ed. 2006); see also 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 803.04[2][a] (Joseph M. McLaughlin ed., 2d ed. 1999). The statement of American law provided by Corpus Juris Secundum, although it rejects using the hearsay statement alone to prove the exciting event, acknowledges that “[d]irect proof … or proof that forecloses all speculation[?] is not required to satisfy the excited utterance exception to the hearsay rule.” 31A C.J.S. Evidence § 359, at 649 & n.68.
Evidence scholars opine that not requiring independent proof of a startling event is in accord with the discretion the evidence rules give trial courts to determine the admissibility of excited utterances. Weinstein's Federal Evidence notes that even though using the hearsay statement itself to establish the occurrence of a startling event may be “somewhat unsettling theoretically,” it is justified by the discretion granted to trial courts in Fed. R. ...
