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United States v. Iron Shell - 633 F.2d 77 (8th Cir. 1980)


Factors which the trial court must weigh in determining whether the offered testimony is within the Fed. R. Evid. 803(2) excited utterance exception include the lapse of time between the startling event and the out-of-court statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statements. In order to find that the exception applies, it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation. 

admits three types of statements: (1) medical history, (2) past or present sensations, and (3) inception or general cause of the disease or injury. All three types are admissible where they are reasonably pertinent to diagnosis or treatment. Statements concerning what happened are, in most cases, pertinent to diagnosis and treatment while statements concerning who committed the act are seldom, if ever, sufficiently related. 


Defendant Iron Shell appealed his assault with intent to commit rape conviction, challenging evidentiary rulings and the failure to instruct the jury on an assault charge, and alleging that the Major Crimes Act, 18 U.S.C.S. § 1153, violated the U. S. Const. XIV equal protection clause.


Did the District Court err in convicting Iron Shell of assault with intent to commit rape?




The Court ruled that the victim's statements to a doctor regarding what happened were admissible under Fed. R. Evid. 803(4) because they were pertinent to diagnosis and treatment; all statements were consistent with a motive of a patient seeking treatment. The victim's age supported a finding that her statements fell within the traditional rationale of the rule. There was not an abuse of discretion by the trial court in the admission of the victim's statements to a police officer an hour after the assault as excited utterances under Rule 803(2). The U. S. Const. amend. VI confrontation clause was not violated because the statements had sufficient indicia of reliability. Denial of the instruction on the assault by striking charge was proper because it required physical contact and was not a lesser included offense. The Act did not violate equal protection because Iron Shell was entitled to an instruction on a state child molestation charge, but declined.

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