Federal
Rule of Evidence 803 sets out three hearsay exceptions for spontaneous
events: present sense impression, excited utterance, and then-existing
condition. The rationale
for these exceptions is that the spontaneous statements are reliable because a
person is unlikely to fabricate lies (which presumably take deliberate
reflection) while her mind is preoccupied with the stress of an exciting event.
But for lots of complicated reasons explained here
(click the link for a primer on peritraumatic dissociation and elevated
cortisol levels in the amygdala), that’s not how the brain works. First, “it's
not true that people can't make up a lie in a short period of time. Most
lies in fact are spontaneous.”
Second, the emotional stress attending a crime can fragment and
corrupt memories. The assumptions behind the spontaneous event hearsay
exceptions are exactly backward. Spontaneity does not enhance reliability; it
may compromise it.
Courts are beginning to recognize the fallacy of the
rationale behind the spontaneity hearsay exceptions. “As with much of the folk
psychology of evidence, it is difficult to take this rationale entirely
seriously, since people are entirely capable of spontaneous lies in emotional
circumstances…It is time the law began paying attention to such studies.” So,
if the government’s case relies on a spontaneity exception, ask the court to
view that evidence in light of the science.
-- Kirk