Agoy! Zounds! Hwaet! Mo#$%@&er! You heard me! It’s time to discuss my favorite of all hearsay exceptions, the excited g****mn utterance. Or, as the TRE likes to put it: 803(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
Excited utterances descend to us from the amorphous res gestae statements we discussed last month. They’re one of the categories of res gestae statements that were teased out in the late 19th century when People Who Do These Things started trying to clarify and define rules of evidence.
Interestingly, an excited utterance is admissible regardless of whether the declarant is available.* That means that Powers the Be think of this as a particularly trustworthy type of evidence- with or without the ability to cross-examine the declarant, with or without the proof that the person seeking to have the statement admitted searched high and low for the declarant, that superlative expletive is coming in! The phrase courts use about this one is “firmly rooted.” This is a “firmly rooted” hearsay exception. Rooted in what? Well, more on that in a second, beloved.
Guys. Seriously. While I might be credulous enough to believe that in the heat of an assault, someone wouldn’t think to shout out lies about who the assailant was, I know for sure that when I was a kid, I would stand in the kitchen, slap my own arm until it was red, and then scream to my mom that my brother hit me.
I also have been aware of cases where “under the stress of excitement” meant a very, very long time according to the prosecutor trying to get the evidence in (and according to the appellate courts reviewing trial cases for error- see: Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) (holding that a statement made twenty hours after an assault qualified as an excited utterance).
In fact, critics much more savvy and devoted than your Darling Allison have noted that the excited utterance exception runs counter to the experience of many female victims. A 1997 feminist critique examined the documented reactions of women to rape, and noted that many rape survivors are too disoriented, numb, afraid, or ashamed to issue a prompt statement, excited or otherwise. Instead, the excited utterance exception seems to describe best those who are sufficiently confident of their power to emit a prompt excited cry, and who expect that their cries will be taken seriously.1
And it’s true that the excited utterance exception was largely based around what that old rascal John Wigmore thought he would do, or folks like him would do, in that situation.
But the truth is that not even the Wigmores and Roosevelts usually respond that way to trauma. Psychologists have researched this very issue for years, and while we might like to think that people won’t actively invent lies while they’re being traumatized, the more complicated reality is that when people are being traumatized, their brains are not reliable reporters of events.
Research is clear that the fight-or-flight response affects individuals’ perceptions of an event in ways that may increase the likelihood of mistakes. Because the amygdala prioritizes safety and survival, quick assessments and defensive judgments prevail over deliberate and thorough analyses. Thus, independent of reality, people are more likely to perceive threats, more likely to overestimate the degree of threat, and more likely to attribute ill-intent to others when they are experiencing the fight-or-flight response. Because stereotypes and prejudices (consciously or unconsciously held) facilitate fast decision-making, individuals will also tend to rely on them more heavily to evaluate situations and the intents of others; these sorts of perceptual biases can also lead to errors in judgments and decision-making and in subsequent interpretations and memories of the event. Steven Baicker-McKee, The Excited Utterance Paradox, 41 Seattle U. L. REV. 111 (2017).
So all of a sudden this “firmly rooted” hearsay exception has its roots in… well. What do plants usually have roots in?
I think it’s time, vexatious litigants, for us to start contesting these rules. If you have an alleged excited utterance, do your best to demonstrate that the reliability of it is suspect at best. It might be coming in, but that doesn’t mean anyone has to believe it. Use it as your chance to pull in a memory expert who can talk to the fact finder about why the witness doesn’t have to be lying to just be plain wrong. We can also use our knowledge of how trauma cognition works to advocate for excited utterances we want to be admitted to come in. We can talk about how the stress of situations lasts longer than courts have traditionally realized, and we can emphasize that a person doesn’t have to be visibly disoriented to be responding to trauma.
*Except now we have Crawford v. Washington, which changes all of this in certain cases, and we will spend a whole separate column discussing Crawford and its ramifications.