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54 Crim. L. Bull. 1 (2018)
Somniloquy as Evidence: The Recurring Appearance of Outdated Sleep Talk Expertise

handle is hein.journals/cmlwbl54 and id is 5 raw text is: 

Somniloquy as Evidence: The Recurring
Appearance of Outdated Sleep Talk

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  How   and why  does  outdated  scientific knowledge persist in legal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  Sometimes outdated ideas are built into the law, for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

     * 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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