"MY GOD!": A Feminist Critique of the Excited Utterance Exception to the Hearsay Rule

Abstract

The excited utterance exception admits hearsay statements made while the declarant was under the stress or excitement of a particularly startling event, on the theory that such stress or excitement precludes the kind of reflection necessary for the declarant to fabricate, and hence renders such out-of-court statements sufficiently reliable.The excited utterance exception has long been subjected to a psychological critique, which questions the wisdom of a doctrine that relies on the stress of the declarant.This criticism claims that stress and excitement are as likely to cloud perception and memory as they are to ensure truthfulness.The author applies the insights of both the difference and dominance schools of feminist jurisprudence to explain the longevity and cultural appeal of the doctrine in the face of such challenges.She criticizes the existing excited utterance exception on the ground that it betrays a masculine bias, privileging the accustomed responses to stress of empowered persons over those of women and other disadvantaged groups.The excited utterance exception ignores the experiences of people who deviate from the rule's paradigm of how "normal" people react to stress, and thereby subtly perpetuates a cultural and legal image of women as unreliable.In particular, the Article focuses on the inconsistency between the doctrinal demands of the excited utterance and women's documented reactions to rape.In requiring a prompt statement and visible signs of distress, the excited utterance exception simply does not reflect the reported experiences of many rape survivors who often 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.In response, the author proposes a modification of the excited utterance exception, and an additional exception that would allow out-of-court statements by survivors of sexual violence even when made well after the attack itself The author incorporates safeguards to protect the rights of criminal defendants when such statements are to be introduced.19.The concept refers to "words spoken, thoughts expressed, and gestures made.., .soclosely connected to occurrence or event in both time and substance as to be a part of the happening."BLACK'S LAW DICTIONARY 1305 (6th ed.1990).Res gestae are the "automatic and undesigned incidents of the particular act in issue ... ."Keefe v. State, 72 P.2d 425, 427 (Ariz.1937).Although courts still occasionally employ the term res gestae, it is for the most part a relic that served as a transitional device in the evolution of various hearsay exceptions.See McCORMICK, supra note 7, ?268.Res gestae captured the interest and inspired the ire of many evidence greats.Sir Frederick Pollack called it a "damnable pretended doctrine.