Sunday, July 23, 2017

Trial Series: In which we excitedly utter words about excited utterances

We recently published a moon-shot post about science and the excited-utterance hearsay exception. While it's a bit too early to declare victory, the Tenth Circuit had this to say last week in United States v. Magnan:
We are well aware that both courts and commentators have criticized the excited utterance exception to the rule against hearsay “on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication.” Fed. R. Evid. 803(2) advisory committee’s note. See, e.g., United States v. Boyce, 742 F.3d 792, 796 (7th Cir. 2014); 2 McCormick on Evidence § 272, at 366 (7th ed. 2013). But because Defendant does not ask us to hold the well established exception invalid on its face, we consider his argument that the district court abused its discretion in applying the exception only on the facts presented.
This sounds to us like an invitation. Use the neuroscience to challenge the excited-utterance hearsay exception, an issue of which the Tenth Circuit is “well aware,” and appears open to considering.

---From Kirk Redmond

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