Rethinking Assumptions About the Reliability of “Excited Utterances”
In her article, The Reliability of Assault Victims’ Immediate Accounts: Evidence from Trauma Studies, Melissa Hamilton of the University of Texas delves into social science research to question whether there is a scientific basis underpinning the assumptions that justify certain hearsay rules, in particular the “excited utterance” exception to the hearsay rule.
The excited utterance exception, codified in Evidence Rule 803(a)(2), deems out-of-court statements admissible if they are “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” This exception is not, as Dr. Hamilton notes, “reliant upon data from the sciences,” but on “intuitive beliefs about human nature made centuries ago,” namely, that a person is less likely to lie, and more likely to accurately describe the events they have experienced, when they are under the stress of an exciting event.
Dr. Hamilton notes that stress causes high levels of cortisol, which stimulates the amygdala, the part of the brain responsible for the “fight or flight response.” While this flood of cortisol may increase the chances that the brain will remember the traumatic event, it does not necessarily aid the brain to retain and describe the event accurately, for the same cortisol which helps us to react quickly to stressful events can overwhelm the hippocampus, the part of the brain responsible for processing and describing those same events. In fact, during an extreme traumatic event the victim may experience disassociation, where his or her normal cognitive abilities lapse for a period of time such that no accurate memory is retained. In such cases one must be aware of the risk that the individual may fill in details in their memory from a story they construct after the fact. Finally, Dr. Hamilton notes, there is little scientific justification for the “folk psychology” that individuals under the stress of an exciting event are incapable of lying. To the contrary, she points to social science research that demonstrates that individuals will often lie immediately and instinctively out of self-interest and only correct that behavior when they have time to deliberate.
Dr. Hamilton’s article provides examples and insights which can help the criminal law practitioner explain why an “excited utterance” may not be reliable, even if a court allows the evidence in under the entrenched hearsay rules.
