Hearsay Exceptions: Adjusting the Ratio of Intuition to Psychological Science

Abstract

John E.B. Myers (*) Ingrid Cordon (**) Simona Ghetti (***) Gail S. Goodman (****) I INTRODUCTION Exceptions to the hearsay rule grew out of intuitive beliefs about human nature. (1) Thus, dying declarations were thought to be reliable because dying declarants hesitate to meet their Maker with a lie upon their lips. (2) Excited utterances are reliable because traumatic stress is believed to still the capacity to lie. Statements to doctors are trustworthy because patients are believed to have an incentive to tell the truth to the doctor. Psychological science based on empirical study of human behavior played no role in the origin of most hearsay exceptions. The exceptions, after all, came into being long before William James and Wilhem Wundt established their laboratories in 1875 and 1879. (3) Today, psychological science has made tremendous progress, and it is appropriate to ask whether modern psychology supports or undermines the intuitive foundations of hearsay exceptions. This paper explores this issue by examining three exceptions: excited utterances, statements for purposes of medical diagnosis or treatment, and the residual hearsay exception. These selections are appropriate because the focus is child declarants, and these exceptions play key roles in child abuse litigation. II THE EXCITED UTTERANCE EXCEPTION The origins of the excited utterance exception can be traced to the eighteenth century. (4) The exception is invoked frequently in child abuse litigation. (5) The exception is codified in Rule 803(2) of the Federal Rules of Evidence, which provides that the hearsay rule does not exclude statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." (6) The primary rationale for the exception is that statements are trustworthy when made shortly following a startling event and while the declarant remains affected by the stress caused by the event. Traumatic stress is thought to lower the probability that statements are a product of conscious fabrication. (7) The excited utterance exception has three requirements. First, there must be an exciting event. Second, the out-of-court statement must relate to the event. Third, the statement must be made while the declarant is under the stress of excitement induced by the event. Courts consider several factors to determine whether hearsay statements were made under the stress of excitement caused by a startling event. We discuss these factors below, employing a two-step process. We begin by outlining legal principles. The legal analysis will then be followed by relevant psychological principles. We conclude the discussion of excited utterances by grappling with the fundamental question: Does traumatic stress still the capacity to lie? Some of the legal factors involved in this determination include: Spontaneity. For many courts, spontaneity is the most important factor in determining whether a statement was a product of reflective thought or a spontaneous reaction to a startling event. The more spontaneous the statement, the more likely the court is to apply the excited utterance exception. If a child had an opportunity to reflect, the balance tips away from admissibility. Questioning. A child may make a statement in response to questions about a startling event. Courts agree that questioning does not necessarily destroy the excitement required for this exception. Thus, simple questions like "What happened?" do not destroy excitement or spontaneity. As questioning increases, however, and especially as questions become suggestive, the odds decrease that the child's statement is a spontaneous reaction to a startling event. Lapse of time. The longer the delay between a startling event and an out-of-court statement, the less likely the declarant was excited when the statement was made. …