MY GOD - A FEMINIST CRITIQUE OF THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE

The excited utterance exception admits hearsay statements made while t he declarant was under the stress or excitement of a particularly star tling event, on the theory that such stress or excitement precludes th e kind of reflection necessary for the declarant to fabricate, and hen ce renders such out-of-court statements sufficiently reliable, The exc ited utterance exception has long been subjected to a psychological cr itique, which questions the wisdom of a doctrine that relies on the st ress of the declarant. This criticism claims that stress and excitemen t are as likely to cloud perception and memory as they are to ensure t ruthfulness. The author applies the insights of both the difference an d dominance schools of feminist jurisprudence to explain the longevity and cultural appeal of the doctrine in the face of such challenges. S he criticizes the existing excited utterance exception an the ground t hat it betrays a masculine bias, privileging the accustomed responses to stress of empowered persons over those of women and other disadvant aged groups. The excited utterance exception ignores the experiences o f people who deviate from the rule's paradigm of how ''normal'' people react to stress, and thereby subtly perpetuates a cultural and legal image of women as unreliable. In particular, the Article focuses on th e inconsistency between the doctrinal demands of the excited utterance and women's documented reactions to rape. In requiring a prompt state ment and visible signs of distress, the excited utterance exception si mply does not reflect the reported experiences of many rape survivors who often are too disoriented, numb, afraid, or ashamed to issue a pro mpt statement, excited or otherwise. Instead, the excited utterance ex ception seems to describe best those who are sufficiently confident of their power to emit a prompt excited cry, and who expect that their c ries will be taken seriously. In response, the author proposes a modif ication of the excited utterance exception, and an additional exceptio n that would allow out-of-court statements by survivors of sexual viol ence even when made well after the attack itself The author incorporat es safeguards to protect the rights of criminal defendants when such s tatements are to be introduced.