The “Excited Utterance” and the Rhetorical Agent: How Language Ideology Shapes Agency in the American Law of Evidence

Author: Jennifer Andrus
Degree: Ph.D. in Rhetoric, Carnegie Mellon University, 2009

My dissertation contributes to current discussions in the field of rhetoric regarding discourse, discursive agency and the value of interdisciplinarity. I interrogate a specific type of legal discourse in Anglo-American evidence law, the excited utterance exception to hearsay, which admits second-hand statements as long as they were made under exciting circumstances. In particular, I look at the implications when this rule is used in cases involving domestic violence. In an analysis of the discourse produced in the case law of the US Court of Appeals and US Supreme Court, I argue that ideas about language circulated in excited utterance case law construct the legal artifact “excited utterance,” the institutional role the speaker can inhabit, and the speaker’s discursive agency. I apply the analysis of discourses produced in these two Federal Courts in a case study of United States v. Hadley (2002, 2005). To do so, I articulate traditionally rhetorical concerns (the interplay between a rhetor, an audience, a message and a situation) through the concept of language ideology from linguistic anthropology.

The excited utterance exception is a part of the hearsay rule of evidence (Federal Rules of Evidence, section 8). The hearsay rule excludes the repetition of out-of court statements in the testimony of a third party. Typically used to admit the utterances of anonymous bystanders, the excited utterance exception to hearsay can be used to admit statements made in response to circumstances that are so exciting that the reflective faculties of the speaker have been stilled. That is, according to definitions of the excited utterance exception, exciting events can silence the rhetorical and discursive agency of a speaker, resulting in a spontaneous, non-subjective and thus “inherently trustworthy” utterance. I argue that the use of this legal rule in trial and on appeal amounts to a language ideology. A language ideology consists of ideas about what language is, how it functions, and how it relates with aspects of social life (Silverstein; Woolard; Kroskrity; Johnstone). To understand this language ideology, I trace legal discourses that make up this rule to the earliest legal treatises on evidence in English law written in the late 1600s. The ideas about language circulated in these early works focus on the validity of sensory experience and the problems that speaker subjectivity, history, context and prior texts pose for the trustworthiness of an utterance. I argue that when cited via the use of precedents in common law, these ideas about language decontextualize the utterance and create an inherent link between the utterance and the “original event” that bypasses the history, context and discursive agency of the person to whom the excited utterance is attributed.

The effects of the language ideology of the excited utterance exception are most apparent and problematic in cases involving domestic assault when the speaker to whom the original utterance is attributed attempts to disown or alter the narrative embedded in the “excited utterance.” I ultimately argue that the metadiscourse of the excited utterance (developed primarily in contract, accident and male-on-male assault cases) limits the authority the speaker has over her narrative account of domestic assault. The speaker is a non-agent who makes trustworthy utterances only under the duress of a violent event in which her husband claimed agency. Even her false utterances are attributed to the husband with the claim that they are the product of coercion. The speaker of the excited utterance is articulated within the legal discourse as a fundamentally untrustworthy witness of a crime committed against and permanently linked to her body.