Fight, flight, freeze…or lie? Rethinking the principles of res gestae evidence in light of its revival

Abstract

This paper argues that it is long past time that res gestae evidence under the Criminal Justice Act 2003 s. 118(1)4(a), described here as ‘emotionally-overpowered statements’, was abolished. Res gestae adds nothing to the hearsay regime under the CJA 2003, apart from blurring the operation of s. 114(1)(d), and it is still frequently misapplied. However, it also rests on a false premise that runs counter to modern neuroscience and embeds outdated myths about trauma victims into the law – even when the law has moved on from those assumptions in other contexts. Using comparison with excited utterances under the USA's FRE 803(2), critiques from US scholars, and insights from neuroscientific research, this paper calls for the abolition of res gestae evidence, despite recent interest in its use in cases of domestic abuse, and advocates instead for the use of the s. 114(1)(d) interests of justice test.