Important New Jersey Decisions on Excited Utterances

This week, the New Jersey Supreme Court issued a significant decision, State v. Branch, 2005 WL 221198, and a companion decision, State v. Cotto, 2005 WL235918 (corrected version), on the excited utterance exception. I haven't had time yet to post a report of these decisions, but Brooks Holland has done it (for which I thank him), by posting a comment on the blog that you can find by clicking here. As Brooks explains, the court restricts the exception, drawing it back closer to its original dimensions. Although Branch formally decides only the bounds of the evidentiary rule, the analysis is explicitly "informed by the principles undergirding the Confrontation Clause jurisprudence of our federal and state constitutions." These decisions are, in my view, a positive development of considerable significance. It might have been better had the court relied on constitutional grounds. It might then have been harder for courts in other jurisdictions to shrug the New Jersey decisions aside. And when confrontation rights are not at stake, I think a receptive attitude towards hearsay is generally preferable, so it is something of a shame to confine an exception that may be useful in civil cases, no matter how far it has departed from its historical roots. But this is a quibble. The basic analysis of the New Jersey Supreme Court seems right to me, and I hope other courts pay attention.