Excited Utterance and Officer Involved Trauma

By Joel Shults

The legal belief that people behave rationally on a conscious level, short of mental disease and defect, can be lethal to the career of an officer involved in a controversial traumatic event.. A lot of attention has developed around the brain and its processes in recent years. A search of book titles about how we think, make decisions, and learn most effectively will reveal several best sellers. Legal assumptions have not caught up with biological realities and may never be able to do so.

Are humans rational? I believe so, but not always on a conscious level. Let’s take a walk down the block and examine how the brain guides us. Stay with me while I make a crucial point. If the terrain is familiar then some neural paths have already been formed in the brain – you know to be alert for that uneven place in the sidewalk and the dog that always barks ferociously from the other side of the fence. If this is unfamiliar territory then the brain must rely on previous walks to interpret and navigate the environment. The brain speculates, very accurately, what to expect and how to respond.

Now let’s say you see a dog on a leash coming toward you. I once worked a series of peeping tom calls where the peeper used his dog walking as an excuse to be out in the evening. I’ve also been bitten too many times to remain a dog lover. So in my case my brain puts my body on alert when I see a dog. If you’re a dog lover, your brain puts your body in a different condition of acceptance and calm. In any case, the point is that our past experiences construct how we see the world and how we physically react to it.

As you continue on your imaginary walk, you see two people walking on the other side of the street. They stay close to the shadows, hold their jackets close to them, and look back over their shoulders. The average citizen would find them suspicious, but they wouldn’t necessarily understand why. As a seasoned officer you know that the behavior is suspicious because most people want to walk where it is best lighted, their arms relaxed, and focused on their path. The citizen just knows something doesn’t seem right because whatever those two are doing, it doesn’t match up to their mental template of normal people out walking. This is the concept of cognitive dissonance – things don’t feel right, causing some mental tension. We have to resolve this tension somehow. For the citizen it is typically a mental narrative seeking an explanation. The citizen resolves their fear and can go on about their business without further distress or involvement: “I bet they are skipping school” would be a nice way to explain and resolve the scene. The officer, however, will continue to investigate to determine the real facts.

Our walk gets more exciting. Out of nowhere, a motorcycle and speeding car collide and skid to within a few feet of you, striking a utility pole. Now the brain is remarkably focused. It shuts down every function and thought of the body that is not directly related to surviving the next few seconds of life. This is especially true if we have no existing template of experience in our past to guide our response. Digesting supper? Forget it. You need the blood elsewhere. Getting a cold? No time to make antibodies. Beautiful sunset? The building behind you could be on fire and you wouldn’t know it. The normal pathways that filter experiences through the frontal cortex are short circuited directly to the primitive fight or flight part of the brain. Most officers are aware of the sensory and memory distortions that accompany traumatic events like lethal encounters. But what about the moments after when the brain and body are trying to return to normal?

Here’s where the concept of excited utterance comes in. Also known as spontaneous exclamation or res gestae statement, these statements are legally considered reliable because they are made spontaneously in reaction to a sudden event without deliberation. While these statements may be honest and unfiltered, they reflect a mental search for truth but may not reflect factual reality. A police officer who has just shot a suspect (or engaged in any life threatening activity from a hard fight to a dramatic rescue) has gone from conscious, controlled awareness to a series of autonomic responses (hopefully using neural pathways built during training). As things rapidly begin to return to normal the brain now begins to reconstruct the event to make sense of it. Because killing someone doesn’t make “sense”, even to a trained police officer, the brain begins exploring “logical” explanations. Thinking outloud, an officer may say “I must have tripped”, or “My gun just went off”, or “I didn’t mean to kill him”, or “did you see that knife” when no knife is found. The officer is in no mental state to be constructing an alibi or defense, he or she is merely doing a very normal thing – trying to construct a narrative that makes sense to a freshly traumatized brain.

When the facts are in, or cooler statements are made after a period of rest and reflection the initial sense-making statements of the officer still in shock may seem incongruent. This may be interpreted as a deliberate lie, guilty statement, or cover up from the perspective of defense attorneys or officers investigating the shooting. I can’t suggest that no such statements ever be made because involved officers will not be thinking clearly enough to engage in self-protective silence that, in itself, could be misinterpreted as conspiratorial. I just ask that you keep this article for the day that you or a colleague need to help explain something that made perfect sense to your brain after the most traumatic event of a lifetime, but won’t make sense in the mind of a jury without the perspective of how the brain works in the context of that event.