chapter  15
16 Pages

Jan B. Gordon Hearsay Booked: Fugitive Talk Brought to Justice

There are, however, exceptions to this rule; for instance, an assertion otherwise disqualified from evidentiary status is often admitted when it bears upon the state of mind of a defendant or is offered to establish a declarant's belief at the time.5 Declarations antecedent to rational reßection-known in legal parlance as "excited utterance" -never qualifY as hearsay, under the assumption that the precipitating event was so starding as to suspend the possibility of fabrication. This would extend not merely to the edge of the grave--deathbed utterances are exempt from hearsay status under the assumption that a declarant facing imminent death would have no reason to lie-but also from the cradle: the statements of an incompetent, because underaged, child also fail to qualifY as hearsay.6 In other words, prereßective utterance, because it is uncontaminated by a truth claim-or, concomitandy, the willed deceptions and justifications imagined to attend the operations of reason-evades the fugitive status with which the law has historically stigmatized hearsay testimony. As "voice," in Jacques Derrida's formulation, is the irrecoverable foundation to which writing or inscription always (in occidental thought) doubly defers, so some mental consciousness exhibiting spontaneity outside or beyond a reasoned truth assertion (yet somehow "informing" it, as voice may inform inscripted iteration) renders the testimony acceptable within the Anglo-American jurisprudential tradition.?