The Reliability of Assault Victims’ Immediate Accounts: Evidence from Trauma Studies

Abstract

The admission of hearsay qualifying as excited utterances, present sense impressions, and statements about mental and bodily conditions are exceptions to the general rule of inadmissibility for hearsay statements. Evidence scholars explain them as being presumably reliable statements as they are generally contemporaneous with an event at issue such that faults with memory and time to lie are remedied. These three exceptions have been particularly depended upon in cases of interpersonal violence in which victims are considered to honestly complain during the occurrence of the assault and in its immediate aftermath. Nonetheless, much recent research in interdisciplinary circles highlights that the impact of trauma has varied consequences upon subjects’ abilities to accurately and fully articulate what just transpired to them. Concurrent neurophysiological reactions to traumatic stress can mediate, alter, or entirely thwart one’s capacity to conceptualize internally, and to clearly verbalize externally, the violent attack. Thus, unlike the hearsay exceptions’ presumption of accuracy, a surfeit of scientific knowledge now shows that violence victims may — or may not — issue in the near term holistic and reliable reports. On the other hand, empirical studies reject the notion that it takes more than a blink of an eye to fabricate a story.

Evidence law is often intransigent in its reliance upon folk psychological assumptions about human behavior. Yet with legal scholars and practitioners increasingly embracing the benefits that scientific knowledge can bring to the law, the time may be ripe to reconsider these three hearsay exceptions. In light of recent studies drawing from neurology, physiology, and psychology principles and research designs in trauma studies, the goal of evidence law in terms of preventing unreliable testimony can only benefit thereby.

Keywords: evidence, trauma studies, neurolaw, violence, hearsay, present sense impression, excited utterance, interdisciplinary, victims' accounts

JEL Classification: K41, K42, K14