Based on nothing more than John Henry Wigmore’s personal belief that a witness under the throes of excitement is unable to fabricate an untruthful statement, the excited utterance exception allows parties to present out-of-court statements to the jury or judge without any of the safeguards the judicial system uses to promote honest and accurate testimony. This Article collects and examines much of the scientific evidence bearing on Wigmore’s premise and identifies two paradoxical conclusions that undermine the exception. First, the premise itself is unfounded; science absolutely does not support the notion that a witness is incapable of lying while emotionally agitated. But, there is a second phenomenon at work that counteracts the premise (were it valid); witnesses under extreme emotional stress are unreliable observers and reporters of the events causing the stress. Thus, in the unlikely event that an occurrence was sufficiently stressful to impede the ability to lie, the stress would also interfere with the ability to perceive and describe the occurrence reliably. Based on this paradox, this Article concludes that the excited utterance exception is both broken and irreparable, and therefore recommends abandoning the excited utterance exception altogether.
Steven Baicker-McKee, The Excited Utterance Paradox, 41 SEATTLE U. L. REV. 111 (2017).