Somniloquy as Evidence: The Recurring Appearance of Outdated Sleep Talk Expertise
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Somniloquy as Evidence: The Recurring
Appearance of Outdated Sleep Talk
Expertise
David S. Caudill and Mark R. Pressman*
I. Introduction
[A] fundamental problem with the common law's tendency to rely upon
long-standing [precedents] to justify retaining standards is that [we
may ignore] advancements in scientific knowledge.'
How and why does outdated scientific knowledge persist in legal
contexts? Sometimes outdated ideas are built into the law, for
example, in the rules of evidence-the excited utterance exception
to the hearsay rule, and the corresponding belief that a spontane-
ous, impulsive statement made under the stress of a startling event
is trustworthy, are based upon the premise that excitement destroys
the ability for conscious reflection and deceit.2 This premise is
consistent with a common Freudian intuition that raw emotions can
reveal our true views about the world[.] Contrary to such folk
psychology, excitement can distort one's ability to make accurate
observations and thus actually increases the risk of faulty
perceptions.
* David S. Caudill J.D., Ph.D.; Professor and Arthur M. Goldberg Family Chair
in Law, Villanova University Charles Widger School of Law. This article is based
upon a paper entitled The Admissibility of Sleeptalk Evidence, given by Professor
Caudill at the 10th Annual Studies in Expertise and Experience Workshop
(SEEShop), Cardiff University, Wales, May 27-29, 2016.
Mark R. Pressman Ph.D.; Adjunct Professor of Law, Villanova University
Charles Widger School of Law; Diplomate, American Board of Sleep Medicine;
Licensed Psychologist, Sleep Medicine Services, Lankenau Medical Center; Clinical
Professor, Lankenau Institute for Medical Research; Clinical Professor of Medicine,
Jefferson Medical College.
Melissa Hamilton, The Reliability of Assault Victims' Immediate Accounts:
Evidence from Trauma Studies, 26 STAN. L. & POL'Y REV. 269, 270 (2015).
2Hamilton, supra note 1, at 278.
3Jamal Greene, Pathetic Argument in Constitutional Law, 113 COLUM. L. REV.
1389, 1448 (2013), quoted in Hamilton, supra note 1, at 278.
4Hamilton, supra note 1, at 278 (citing THOMAS A. MAUET & WARREN D. WOLFSON,
TRIAL EVIDENCE § 7.3 (4th ed. 2009), and Laurence H. Tribe, Triangulating Hearsay,
87 HARv. L. REV. 957, 967 n.32 (1974)); see also Lust v. Sealy, Inc., 383 F.3d 580,
588, 94 Fair Empl. Prac. Cas. (BNA) 645, 85 Empl. Prac. Dec. (CCH) P 41775, 65
Fed. R. Evid. Serv. 298 (7th Cir. 2004) (lamenting the faulty assumptions behind the
excited utterance exception to the hearsay rule).
@ 2018 Thomson Reuters * Criminal Law Bulletin * Vol. 54 No. 1
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Somniloquy as Evidence: The Recurring Appearance of Outdated Sleep Talk Expertise
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