Further, the record before us fails to indicate 1 which, if any, of the State's witnesses actually had criminal records; 2 which of any existing criminal records the prosecution possessed or otherwise had knowledge of; 3 whether any of those records were admissible for impeachment purposes under the Utah Rules of Evidence; and 4 whether the testimony of any impeachable witness was likely to have been instrumental to the jury's conviction. Evidence that there was a reasonable basis for the declarant's continuing emotional distress, or that the declarant was actually nervous or distraught at the time the statement was made, has generally been accepted as adequate to rebut the presumption against an excited utterance. Any other approach would greatly undermine the utility of the exception by causing valuable evidence to be excluded. A trial court is granted broad discretion to admit or deny discovery under this rule. The trial judge did not abuse his prerogative under Rule 63 4. Appellant failed to supplement its motion with regard to any of the witnesses, however, and was thus denied access to any of the requested criminal records which might exist. Appellant maintains that when a significant period of time separates the occurrence of a startling event from the utterance of a statement describing or otherwise relating to that event, a court should be unwilling to view the statement as an excited utterance for purposes of Rule 2. Cannon was the sole eyewitness to the alleged offense, there can be little doubt that any criminal records that could have been used to impeach Cannon's testimony under Rule would have been material to the defense's case.
Bingham, Idaho , P. Appellant cites several cases in support of this proposition, and we recognize that, at least as a general proposition, "as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance. When this is the case, our "correctness" standard of review necessarily incorporates a "clearly erroneous" standard for review of these subsidiary factual determinations. In a written statement made five days after the alleged event, Cannon claimed the molestation had occurred for ten to fifteen minutes. I differ with the majority's circular analysis to reach the same result. Thus, the trial court's finding that the molestation had indeed occurred might be viewed as improperly removing the decisive factual determination from the province of the jury. Given the evidence adduced at trial, we believe the presumption was adequately rebutted in this case. While the rule sets forth a legal standard of admissibility, it necessarily reserves for the trial court's determination certain subsidiary factual matters, i. Consequently, as traditionally we are obliged to do under such circumstances, we leave undisturbed the judgment below. Newsletter Sign up to receive the Free Law Project newsletter with tips and announcements. The Court certainly does not believe that every witness in this community should have a rap sheet run against him or her. Under the specific facts of this case, however, we believe the State introduced adequate evidence to rebut that presumption. For the purpose of attacking credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime 1 was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or 2 involved dishonesty or false statement, regardless of the punishment. Appellant's motion sought "a list of prior criminal convictions of witnesses the State intends to call. Such an approach though somewhat unsettling theoretically as an example of a statement lifting itself into admissibility by its own bootstraps, is justified by the last sentence of Rule [of Evidence] a which provides that in making preliminary determinations the judge "is not bound by the rules of evidence except those with respect to privileges. See also Ramirez, P. Second, he challenges the trial court's refusal to order the prosecution to disclose to the defense any criminal records of witnesses the State planned to call at trial, absent a good cause showing that particular witnesses may have had criminal histories. While we believe impeachment evidence may, in certain circumstances, so impact a case as to constitute exculpatory evidence, we can not say the prosecution viewed the issue in the same way. Nonetheless, to avoid abuse of the discovery process, and to minimize "fishing expeditions," trial courts may exercise discretion in determining whether certain witnesses for whom criminal records are requested are so clearly unimportant i. NOTES  Appellant also raises a third argument, claiming the trial court violated his right to equal protection of the law by refusing to reduce the felony forcible sexual abuse charge to a misdemeanor charge of gross lewdness. Thus, the trial can be conducted with a minimum of unnecessary delay, while still allowing both parties a maximum of necessary preparation. I point out the perseverance of the well-established review standard of deferring to the trial court's admissibility determination, absent an abuse of the court's discretion. Appellant never claimed he was not with W. Perhaps the accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Dewey Cannon, the Center's maintenance supervisor, was applying new wax to the hallway floor outside W. The court's finding was made solely for the subsidiary purpose of determining whether to admit W.
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