Vanderbilt University Honors 182: Neuroethics I Cannot Tell a Lie: The Biological Basis of the Excited Utterance Exception to the Hearsay Rule Michael Vandenbergh David Chooljian Vanderbilt University School of Law April 6, 2006

What is the hearsay rule? Key Questions What is the hearsay rule? What is the excited utterance exception? Why do we have these rules? Does our understanding of the brain provide support for the excited utterance exception? Does it suggest modifications to the excited utterance exception? Can law help frame questions for biological research? 2

The Problem: Reliability of The Hearsay Problem The Problem: Reliability of Testimony The Legal Solution: Cross- Examination The Next Problem: Hearsay Cross Examination: Witness v. Declarant 3

Federal Rules of Evidence 801, 802 The Hearsay Rule Federal Rules of Evidence 801, 802 Out of court statement By someone other than the witness Offered for the truth of the proposition Example: “that has been on the floor several hours” 4

The Excited Utterance Exception Federal Rule of Evidence 803(2) Utterance admissible: If declarant experiences a startling event or condition; and If declarant makes a statement while under the stress of excitement caused by the condition 5

The Excited Utterance Exception Unavailability of the declarant not required. Tesimony that declarant was distraught and that there was a basis for the distress often sufficient to establish that the statement was made in a state of excitement. 6

The Excited Utterance Exception Courts vary on the length of the temporal gap that may occur between the event and the statement (“duration of the state of excitement”). Declarant’s increased trustworthiness is a surrogate for cross-examination. Wigmore on Evidence § 1747 (1904): “a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.” 7

The Neurophysiology of Excited Utterances: Key Questions Is it physically impossible to lie when making an excited utterance? If not impossible, is it more difficult? Any utterance or only wordless exclamations? What is the maximum time interval? What is the necessary extent of excitement? Do certain events “still the mind” more than others? 8

The Neurophysiology of Excited Utterances: Overview ACG Preconscious Utterance Laugh, Cry, Scream t = 300-700ms Normal Utterance t is variable; 500-600ms min. Deceptive Utterance 100ms < t < 3s fMRI limits 9

Implications, Part I Is it physically impossible to lie when making an excited utterance? Any utterance or only wordless exclamations? What is the maximum time interval? What is the necessary extent of excitement? 10

Implications, Part II Broader Questions Does biological research offer insights for other rules of evidence (e.g., exception for present sense impressions)? When can law frame questions for biological research? When can the results of biological research influence legal doctrines? Should law reflect the product of biological research? 11