Fight, flight, freeze…or lie? Rethinking the principles of res gestae evidence in light of its revival
| Author | Ruth Coffey |
| DOI | http://doi.org/10.1177/13657127221139505 |
| Published date | 01 January 2023 |
| Date | 01 January 2023 |
| Subject Matter | Articles |
Fight, flight, freeze…or lie?
Rethinking the principles of res gestae
evidence in light of its revival
Ruth Coffey
Yale Law School, New Haven, Connecticut, USA
Abstract
This paper argues that it is long past time that res gestae evidence under the Criminal Justice
ished. Res gestae adds nothing to the hearsay regime under the CJA 2003, apart from blurring
the operation of s. 114(1)(d), and it is still frequently misapplied. However, it also rests on a
false premise that runs counter to modern neuroscience and embeds outdated myths about
trauma victims into the law –even when the law has moved on from those assumptions in
other contexts. Using comparison with excited utterances under the USA’s FRE 803(2), cri-
tiques from US scholars, and insights from neuroscientific research, this paper calls for the abo-
lition of res gestae evidence, despite recent interest in its use in cases of domestic abuse, and
advocates instead for the use of the s. 114(1)(d) interests of justice test.
Keywords
comparative criminal law, domestic abuse, excited utterances, hearsay, neuroscience and
the law
Introduction
Res gestae exceptions to the rule against hearsay, such as emotionally-overpowered statements under the
Criminal Justice Act 2003 s. 118(1)4(a) and excited utterances
1
under the Federal Rules of Evidence Rule
803(2), have been criticised for many years.
2
Despite this, not only do they continue to be good law, their
Corresponding author:
Ruth Coffey, Yale Law School, New Haven, Connecticut, United States.
E-mail: ruth.coffey@yale.edu
1. Excitedutterances are not described as ‘res gestae’in the USA, as discussed below, but are broadly equivalent to ‘emotionally
overpowered statements’under the CJA 2003 s. 118(1)4(c).
2. Much of the criticism was cited by the Law Commission in their Consultation paper, discussed below. The psychology underpinning it has
been questioned for a long time, see Hutchins and Slesinger (1928: 432), cited in Tapper and Cross (1985: 589, fn. 4).
Article
The International Journal of
Evidence & Proof
2023, Vol. 27(1) 51–82
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/ 13657127221139505
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use has recently been encouraged, especially in domestic abuse prosecutions. This article draws together
arguments from England & Wales (‘E&W’) and the USA, marshalling four strands of criticism into two
key arguments to advocate that in E&W the exception to the rule against the admission of hearsay evi-
dence for emotionally-overpowered statements should be abolished, and s. 114(1)(d), the interests of
justice ‘safety valve’test, with its structured safeguards should be used instead.
The paper is structured in three parts: Part A introduces ‘emotionally-overpowered statements’in the
law of E&W, their origins,retention and codificationinto the Criminal Justice Act 2003 and thecurrent state
of the law. It then introduces ‘excited utterances’under the Federal Rules of Evidence in the USA, high-
lighting the similarities and differences with E&W law, and arguing that the differences are slight enough
for US criticisms of ‘excited utterances’to be a valuable resource in critiquing ‘emotionally-overpowered
statements’in E&W. It concludes by noting the recent support for the use of ‘emotionally-overpowered’
statements in E&W, particularly in cases involving allegations of domestic abuse, and argues that, in
light of the argument in Parts B and C, this support is misguided.
Part B presents the arguments for the first two strands of criticism, those concerning the use of the
exception:
(i) The principles of res gestae evidence, and in particular emotionally-overpowered statements, are
still misapplied.
(ii) The admission of emotionally overpowered statements is unnecessary; s.114(1)(d) is available.
It considers the case law on emotionally-overpowered statements in E&W highlighting the continued
misapplication of the CJA 2003 s. 118(1)4(a) and the test in Andrews, and then considers whether
s. 118(1)4(a) performs any useful role or whether, as initially suggested by the Law Commission and
argued by others, the hearsay provisions of the CJA 2003 function without any need for s. 118(1)4(a).
It could be abolished with no detrimental impact on cases or on the law of evidence in E&W.
Part C provides the core of the paper, fundamentally critiquing the scientific and philosophical under-
pinnings of ‘emotionally-overpowered statements’as a concept, and as an exception to the rule against
the admission of hearsay evidence. It presents the following arguments:
(i) The psychological principle underlying emotionally-overpowered statements runs counter to
modern neuroscience.
(ii) The principle of emotionally-overpowered statements embeds old myths and stereotypes about
victim behaviour into the criminal law.
The concept behind ‘emotionally-overpowered’statements is that when people are overwhelmed by an
event, they blurt out the truth. This concept is in direct contradiction to the current understandings of
neuroscience; this section considers both criticisms by legal scholars, and the medical literature, conclud-
ing that people who are stressed, excited or emotionally-overpowered are in fact likely to be quicker and
better at lying as their ‘fight, flight, freeze or lie’instinct allows them to react rapidly to preserve their
physical safety. Part C then turns to the myths and stereotypes embedded within the concept of
emotionally-overpowered statements, arguing that the retention of this concept in the evidence law of
E&W promotes outdated and harmful understandings of how a credible victim acts, undermining the evi-
dence of survivors and privileging the voices of those already able to speak. The retention of this excep-
tion is in contradiction to the recognition of the impact of trauma and the varying responses of victims that
is acknowledged in other areas of the criminal justice system. Its retention therefore comes at the expense
of the intellectual and moral integrity of evidence law.
The paper concludes by arguing for the abolition of ‘emotionally-overpowered statements’under
s. 118(1)4(a) and the proper scrutiny of hearsay evidence under the CJA 2003, including the use of
52 The International Journal of Evidence & Proof 27(1)
s. 114(1)(d), the interests of justice safety valve, as appropriate, with the care and consideration required
by Riat and s. 114(2), and the other safeguards of the CJA 2003.
Part A
Emotionally-overpowered statements in England and Wales
The words ‘res gestae’have been given different meanings over the years, and this lack of precision is
one of the reasons for the concept having been much criticised. Phipson on Evidence notes its common
law meaning as ‘the events at issue or others contemporaneous with them’and notes further that for many
years there has been ‘widespread agreement on both sides of the Atlantic that the expression serves no
purpose’(Phipson and Malek, 1982: 1078). The term has been used broadly to mean the immediate cir-
cumstances of an incident, misconduct that is not ‘bad character’evidence under the CJA 2003 s. 98, or
conduct that is part of the events in issue (Phipson and Malek, 1982: 1079). In the criminal law of
England & Wales, it is now used to refer to the common law exception to the rule against the admissibility
of hearsay evidence, preserved under s. 118 (1) of the CJA 2003. And there too, it has three meanings.
118 Preservation of certain common law categories of admissibility
1. The following rules of law are preserved.
Res gestae
4 Any rule of law under which in criminal proceedings a statement is admissible as evidence of any
matter stated if—
(a) the statement was made by a person so emotionally overpowered by an event that the possibility
of concoction or distortion can be disregarded,
(b) the statement accompanied an act which can be properly evaluated as evidence only if considered
in conjunction with the statement, or
(c) the statement relates to a physical sensation or a mental state (such as intention or emotion).
This paper focuses on the exception preserved under s. 118(1)4(a) as the most commonly used and most con-
tentious provision within the res gestae exceptions, referred to here as ‘emotionally-overpowered statements’.
The Law Commission published its report, Evidence in Criminal Proceedings: Hearsay and related
topics, in 1997, following a consultation in 1995. The proposals on res gestae hearsay evidence changed
between the consultation and the report. The Consultation paper gave six possible options for reform
(Law Commission, 1995: 145). The recommendation was for categories of automatic admissibility
and a safety valve discretion (The Law Commission, 1995: 159). On the particular topic of res gestae,
the Consultation paper recommended abolition:
We considered, but rejected, the idea of retaining the res gestae and associated exception. Much of the evi-
dence covered by res gestae will fall within our proposed new exception if the witness is unavailable; if
the witness is available, he or she ought to be called even if the statement is at present admissible as part
of the res gestae. Our regime would exclude the statement of an unidentified witness unless the party
seeking to adduce it successfully invokes the safety valve provision. Accordingly, our provisional view is
that these exceptions should be abolished. (The Law Commission, 1995: 176)
The Consultation paper criticised the case law as ‘convoluted’such that it is ‘[d]ifficult to extract clear
principles from it’(The Law Commission, 1995: 37). It did not, however, question the underlying
premise of res gestae, its particular trustworthiness or guarantee of reliability based on its nature, its
Coffey 53
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