1. 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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

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

10. 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

11. 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