Yesterday I commented on Scott Greenfield’s post regarding a new policy in Dallas, where police are now entitled to “remain silent” for 72 hours after they are involved in a shooting. One of the “experts” involved in the policy change claimed that police need time to rest before they can accurately recall stressful events:
Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.
This is bonkers, as I noted in my response:
This statement stands in direct contradiction to the logical foundation on which both federal and state laws of evidence rest. The Excited Utterance exception to the Hearsay rule, for example, is based on the idea that, under the stress of a traumatic or shocking event, a declarant is more likely to make a reliably truthful statement about the things they saw—precisely because they *don’t* have time to think about it and possibly alter their account to remove unflattering details.
The tomfoolery at work here is mindblowing. If this “expert’s” opinion is true, then what does that say about FRE 803(2) and state analogs? Should there now [be] a “police officer” exception to the Excited Utterance Exception?
Keep in mind that this is based on the work of a “nationally known behavior consultant for law enforcement agencies.” So I’m going to assume she knows police pretty darn well.
If we assume that Alexis Artwohl is correct—that police really do need up to 72 hours to rest before they can accurately recall stressful events—then one of two things is true: (a) the minds of police work differently than the minds of every other human being on the planet, and they are thus entitled to a public policy exception in their favor, or (b) the logical justification for the Excited Utterance Exception to the Hearsay rule, which has existed for centuries, is a complete farce. In either case, Alexis Artwohl should be given honorary PhD’s, J.D.’s, fellowships, visiting professorships, publishing offers, and numerous other accolades for revolutionizing not only the civil and criminal justice systems, but the field of human psychology.
Or she’s just wrong. In which case, nobody should take her suggestions on this topic seriously. I leave it to my reader to determine which one is the case. But if you need up to 72 hours to think about it, I’ll understand.