INTRODUCTION I. HEARSAY EXCEPTIONS A. The Hearsay Rule B. Exceptions and Rationales Excited Utterance 2. Present Sense Impression 3. Statement of Mental or Bodily Condition C. Relying upon the Transactional Hearsay Exceptions II. TRAUMA STUDIES A. Stress Responses 1. Emotional Activation of the Brain 2. Neurosymphony of Stress 3. The Impact of Stress on Learning and Memory B. Dissociation 1. Peritraumatic Dissociation 2. Long-Term Consequences of Dissociation C. The Time to Deceive III. VICTIMS' ACCOUNTS OF INTERPERSONAL VIOLENCE A. The Salience of Hearsay in Domestic and Sexual Violence B. Sex-Based Differentials in Trauma Responses CONCLUSION INTRODUCTION
Optimistically, rules of law ought to be objective, reliable, and, at the very least, rational. Yet a fundamental problem with the common law's tendency to rely upon longstanding precedence to justify existing standards is that such a philosophy often remains ignorant of advancements in scientific knowledge. If the argument to retain a rule is simply due to its historical entrenchment, a visit to current, empirically validated research is inherently unnecessary. A legal arena in which this unfortunate stance of preferring historical rules to scientific advancement prevails is in the law of evidence. A commentator has rightly observed that "the land of evidence has a weird logic or illogic that is all its own." (1) Interestingly, evidence law is itself divided in that officials seem quite amenable, and rightly so, toward updating their knowledge of scientific research when it concerns expert evidence, (2) but willing to neglect modern advances in data outside expert testimony.
These reflections appear well confirmed when analyzing certain of the entrenched exceptions in evidence law to the general rule of excluding hearsay testimony. The admission of hearsay qualifying as excited utterances, present sense impressions, or statements concerning mental and bodily conditions is an exception to the general exclusionary rule. Evidence scholars explain these exceptions as being presumably reliable statements, as they generally arise contemporaneously with an event at issue such that faults with observation and memory are remedied and no time to lie is permitted. These three exceptions have been particularly relied upon in cases of interpersonal violence in which a victim is considered to honestly complain about the affront during the occurrence of the assault and in its immediate aftermath. This state of affairs is particularly acute with female victims of domestic abuse and sexual assault as victims are presumed to admit the truth of their victimizations at the first opportunity. For a variety of reasons, female victims of intimate partner and sexual violence later often recant or decline to cooperate with investigations, and, therefore, their hearsay evidence is intended to offer an evidentiary substitute. 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 trauma 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 holistic and reliable reports in the near term.
This Article proceeds as follows. Part I reviews the history of the general hearsay rule and relevant exceptions. Part II draws from neurobiopsychological studies of trauma responses to more fully conceptualize the cognitive, physiological, physical, and psychological effects of stress. This Part expands upon the impact that the human stress response system and the potential of experiencing a dissociative state may have on the mind's processing of stimuli and its consequences on the victim's faculties in accounting the traumatic incident. In addition, neurocognitive studies help to respond to the assumption underlying these hearsay exceptions that the conjuring of lies takes at least a modicum of time. Then Part III relates how modern scientific studies help to explain the particularly significant impact that trauma responses have on victims of interpersonal violence. The effects are particularly strong with respect to female victims of domestic and sexual violence as empirical studies indicate that trauma responses tend to be heightened in women. The extremely traumatizing consequences of these types of attacks render victims in many cases almost mute or unable in the moment to verbalize factual narratives.
Evidence law enjoys an epistemological edge in that it gains knowledge through the senses. (3) Still, evidentiary rules are interested in more than judging a witness's capacity to perceive information since there also are more subjective concerns about the witness's potential objectivity and impartiality. (4) Many rules of evidence may seem strange as they adhere to longstanding psychological assumptions about the truthfulness and potential deceitfulness that frequently are at the heart of human behavior. (5) These dual considerations exemplify the common law's treatment of hearsay testimony.
The Hearsay Rule
Hearsay roughly refers to "second hand information." (6) More concretely, the Federal Rules of Evidence define hearsay as any statement the declarant did not himself make while testifying at a hearing but that a party offers in evidence to prove the truth of the matter asserted. The general rule is that hearsay is inadmissible evidence. The hearsay rule has a long history, possibly even dating back to the sixteenth century. (8) Sir Geoffrey Gilbert, reflecting in the eighteenth century on the common law rule, explained the ban on hearsay in this way: "[N]othing can be more 'indeterminate' than loose and wandering 'Testimonies' taken upon the uncertain Report of the Talk and Discourse of others." (9) The reported talk of others is loose and indeterminate because it is not rooted in the sensory experience of the current witness. (10) The witness reporting the hearsay may have misheard the declaration, misunderstood it, perverted it, or otherwise possess a poor memory of it. (11)
Hearsay testimony is generally objected to as it does not permit a proper investigation of what has been referred to as the "Four Horsepeople of the Apocalypse: Memory, Sincerity, Perception and Ambiguity." (12) Considering these four dangers, hearsay is considered too fraught with the dangers of inaccuracy and untrustworthiness (13) and thus too unreliable to be depended upon in a court of law. (14) With hearsay especially, the usual three corrections for potentially unreliable statements are missing, consisting of the "ordeal" of crossexamination, (15) under the legal and moral threat imposed by taking an oath, and in the presence of the judge or magistrate. (16 ) Cross-examination of the actual declarant theoretically permits the factfinder to adjudge the declarant's moral character, motives, deportment, skills of observation, and memory. (17) Indeed, the values of cross-examination under oath have long been championed, such as by an eighteenth-century American writer indicating that without those measures hearsay amounted to "no evidence" at all (18) and Judge Richard Posner recently denoting that hearsay "often is no better than rumor or gossip." (19)
Despite the general rule excluding hearsay, as is often the case in the law, there are exceptions. Dispensation generally relates to categories of hearsay for which one or more of the four dangers are thought to be obviated. (20)
Exceptions and Rationales
The three hearsay exceptions that are of interest in the case of assault victims have been referred to as the "transaction exceptions," which are declarations made as part of the same general transaction as relevant out-of-court nonverbal evidence. (21) These entail the exceptions for an excited utterance, present sense impression, and statement of current mental or bodily condition.
Notably, these exceptions to the general hearsay ban are not reliant upon data from the sciences but "grew out of intuitive beliefs about human nature" made in some cases centuries ago. (22) The Supreme Court has sanctioned the admissibility of hearsay for any exception that is "firmly rooted" in light of "longstanding judicial and legislative experience" (23) and "rest[s] [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the 'substance of the constitutional protection.'" (24) Firmly entrenched precedent is considered to be proof that the exception entails conditions in which the temptation to fabricate is eliminated. (25) For example, the Supreme Court deemed the excited utterance exemption to be firmly rooted because it "is at least two centuries old," remains "widely accepted among the States," and carries "sufficient indicia of reliability." (26) Thus, established exceptions are thought to "carry special guarantees of credibility" essentially equivalent to, perhaps even greater than, those produced by the declarant's own live appearance under oath. (27)
The concern is not just about certain hearsay being perhaps more credible than cross-examined trial testimony of the speaker. Bans on evidence mean a loss of relevant information. "Any relevant evidence, including hearsay, has at least some absolute reliability because the existence of infirmities and uncertainties of a piece of evidence only justifies discounting the weight given to the evidence rather than ignoring the evidence through exclusion." (28) Besides, as the Supreme Court has averred, "[Reliability is an amorphous, if not entirely subjective, concept." (29) Legal cases are founded upon a need for factual evidence. The three transaction hearsay...