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Discourse & Society

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Beyond texts in context: Recontextualization and the co-production of texts


and contexts in the legal discourse, excited utterance exception to hearsay
Jennifer Andrus
Discourse Society 2011 22: 115
DOI: 10.1177/0957926510392119

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and contexts in the legal


discourse, excited utterance
exception to hearsay

Jennifer Andrus
University of Utah, USA

Abstract
The excited utterance exception to hearsay from the US Federal Rules of Evidence (US Courts,
2006: Section 8) is a special kind of reported speech the repetition of an utterance that reports
an event, made prior to the courtroom interaction, in response to exciting circumstances, to
a passive third party. This reported speech and the rules that govern it provide insight into
the discursive relationship between text and context. This article uses the excited utterance
exception to develop a theory of recontextualization, building on research that shows that texts
do not merely constitute contexts, nor do contexts neatly hold and inform the texts embedded
in them. Contexts are complex and subjective matrices made up of utterances, texts, actions and
events, and these matrices are themselves open to recontextualization. This analysis shows that
legal discourse simplifies and constrains both texts and contexts, and positions them causally in
the recursive and simultaneous processes of entextualization and recontextualization.

Keywords
Anglo-American law of evidence, context, critical discourse analysis (CDA), domestic violence,
entextualization, excited utterance, legal discourse, recontextualization, reported speech, rhetoric

Discourse analysis of legal topics often takes courtroom interaction as its object, analyz-
ing expert witnesses (Shuy, 1990, 2002; Winiecki, 2008), question asking strategies used
by attorneys in trials (Conley et al., 1978; Drew, 1992; Ehrlich, 2001; Ehrlich and Sidnell,

Corresponding author:
Jennifer Andrus, Room 3700, University Writing Program, University of Utah, 255 So. Central Campus Drive,
Salt Lake City, UT 84112, USA.
Email: j.andrus@utah.edu

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116 Discourse & Society 22(2)

2006) or judicial instructions to jurors or the accused (Philips, 1998), for example. Others
analyze legal texts used in everyday settings like warning labels (Shuy, 1990), or the
legal text of precedents and statutes (Scheppele, 1990). In this article, I continue in this
tradition, analyzing both a trial-based interaction and the legal discourses (precedents
and statutes) that are used to recontextualize and entextualize (Silverstein and Urban,
1996) narrative accounts in a trial, United States of America [hereafter USA] v. Hadley
(2002). I am concerned with understanding the ways in which entextualization, or the
metadiscursive process of identifying and bounding a bit of discourse and defining it as
a text (Silverstein and Urban, 1996), impacts the contexts that are linked to the resultant
text. Indeed, I show that text and context are defined in the same discursive processes.
The relationship between the context(s) and text(s) is established and re-established via
the processes of recontextualization (Silverstein and Urban, 1996; Hodges, 2008) that
drive entextualization. It is the aim of this article to better understand the relationship
between texts and contexts that results from the co-processes of recontextualization and
entextualization.
The legal rule I use to explore the relationship between text and context is the excited
utterance exception to hearsay (US Courts, 2006: Federal Rules of Evidence, Section 8,
1973/2004). In a trial, this exception is used to evaluate and rule on second-hand speech
(hearsay) offered in the testimony of a third party someone who did not see the crime
or accident in question. Here, I will give a very brief discussion of the rule and will leave
a full discussion of hearsay and the excited utterance exception for a later section of the
article. The hearsay rule and the excited utterance exception to hearsay have roots deep
in the Anglo-American legal tradition. Out of that tradition, the following rubric for
measuring a purported excited utterance has emerged: an excited utterance was said (1)
spontaneously, (2) by an excited speaker whose reflective faculties have been stilled by
the exciting event, (3) in response to an exciting event, and as long as (4) it gives an
account of the exciting event (cf. USA v. Hadley, 2005; Haggins v. Warden, Fort Pillow
State Farm, 1983; USA v. Schreane, 2003). In short, the excited utterance exception to
hearsay admits hearsay testimony, as long as the hearsay is an account of an event that
was said by a speaker in an excited state about an exciting event. The excited utterance
exception to hearsay is a legal device that explicitly recontextualizes an utterance so that
it is available to and intelligible as a legal discourse. As reported speech that gives an
account of the context that caused the speaker to speak, this rule provides us with an
excellent view into the processes that create the seemingly natural relationships between
texts, contexts and speakers.
The excited utterance is always reported speech, and as such, it is developed intertex-
tually via reiteration in new contexts and situated in different texts. According to Gregory
Matoesian (2000: 879), trials operate on an economy of intertexuality, decontextualiz-
ing speech from one speech event and recontextualizing it in a new one. The trial recon-
textualizes reported speech as a way of obscuring inconsistencies by foregrounding some
aspects of the context of earlier speech events and backgrounding others (Matoesian, 2000).
Importantly, as Susan Ehrlich (2007) argues, institutional processes of recontextualization
dont only affect the resultant text, but the recontextualization and re-entextualization
that take place in a trial also constitute the identities of participants. I expand on such
arguments in order to argue that contexts are shot through with texts even as texts are

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Andrus 117

made up of contexts, and that to try to disentangle the two concepts and show that one
(typically the text) is embedded in the other (typically the context) ignores both the
complexity of the discurso-contextual situation of constant recontextualization and the
subjectivity with which individuals respond to texts and contexts. I use Per Linells
description of context as a starting point for this analysis:

Any discourse or text is embedded in a matrix of contexts made up from an array of different
contextual resources: prior discourse, concrete physical environments, people (and assump-
tions about people) with their interpersonal relations, various kinds of background knowledge,
situation definitions (frames), models of topics talked about, etc. (1998: 144)

Context is irreducible to any single aspect of interaction. It is the goal of this article to
understand the ways in which this matrix of contexts develops, changes and is affected
by institutional recontextualization and entextualization processes and the subjective
representations of what happened (cf. Van Dijk, 2008a, 2008b). The production of the
text, excited utterance, is always one of recontextualization, a process that has conse-
quences to past and future sites of recontextualization. Using discourse analysis (Huckin,
1992; Van Dijk, 1993; Fairclough, 1995, 2001 [1989]; Johnstone, 2008), I trace the
recontextualization of an utterance (made as part of an interaction that occurred prior to
and outside of the courtroom) through the trial and the appellate opinion.

Context, text and recontextualization


The importance of context in the development of discourse studies is well established. In
their well-known discussion of context, Paul Drew and John Heritage (1992: 7) link cur-
rent work on context to the work of Bronislaw Malinowski (1965 [1935]), who argued
that the meaning of an utterance is derived from its sociocultural context, or context of
culture. As a way of moving away from Malinowskis deterministic and monolithic
view of context, they suggest that utterances and actions are both context shaped and
context renewing (Drew and Heritage, 1992: 18). Thus, utterances not only respond to
context, but also contribute to them. Critical discourse analysis (CDA) has developed a
context-sensitive way of analyzing the discursive structures through which social
inequalities and the machinations of hegemony are constituted and circulated (Huckin,
1992; Van Dijk, 1993; Fairclough, 1995, 2001 [1989]; Wodak and Van Dijk, 2000).
Norman Fairclough (1995, 2001 [1989]), for example, has argued that the meaning of a
text cannot be exclusively derived from the text itself. [CDA] is [] dedicated to expli-
cating the interdiscursive, intertextual layers of social and historical practices within
which texts are embedded (Benwell and Stokoe, 2007: 104, emphasis in original).
In his recent two-volume work on context (2008a, 2008b), Teun van Dijk (2008a: 5)
criticizes most recent theories of context for falling into the trap of a determinist fal-
lacy, which views context as the objective social properties of the situation that
impact the discourses circulating in them. He argues instead that there is no direct rela-
tionship between aspects of the social situation [] and discourse (2008a: 4, emphasis
in original). In response, Van Dijk develops a cognitive, subjective view of context, in
which what counts as context will depend on the individual and his/her mental models.

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118 Discourse & Society 22(2)

Thus a context is what is defined to be relevant in the social situation by the participants
themselves (Van Dijk, 2008a: 5). The link between context and discourse is found in the
way participants understand and represent the social situation (Van Dijk, 2008a: 5,
emphasis in original). This model allows for a view of context as changing/changeable:
not only are texts malleable, open to the effects of context, but contexts, too, are open to
reconfiguration by the people communicating in and about context. A context is no lon-
ger seen as an artifact or set of stable social conditions that exist objectively in the world,
somehow prior to subjectivity or experience. Instead, context is recognized as being
constituted in interaction, in real time, and is thus open to revision and re-representation
by the individuals orienting toward and using discourse.
Destabilizing context and the causal link between context and text allows us to see the
depths to which it is open to the effects of prior institutional discourses and individual
subjectivity alike. Instead, contexts and texts are produced in the same process: the con-
stitution of a text also constitutes the contexts to which it is linked (after the fact). Prior
discourses, metadiscourses and subjective assumptions about interaction are used to
entextualize a text, by pulling it from its infinitely rich, exquisitely detailed context, [by
drawing] a boundary around it, inquiring into its structure and meaning (Silverstein and
Urban, 1996: 1). During the process of enquiring into its structure and meaning, the
vastness and richness of the ongoing discourse is abridged taken out of the context that
it was in (whether or not that context was original in some sense), inserted into a new
set of contexts and bounded as a text-artifact. When a bit of ongoing discourse is entex-
tualized or converted into a text-artifact, it is made detachable from its local context
(Urban, 1996: 21), despatialized and detemporalized so that it can be transmitted
across social boundaries (Silverstein and Urban, 1996: 1). The contexts used to evalu-
ate and comment on the structure, context, correctness, rhetorical adequacy, etc. of the
discourse entextualize it as a text with an apparently discrete referential content, begin-
ning and end. In this way, the construction of the text-artifact also constructs the context
it too is extracted from ongoing discourse and bounded.
As Ehrlich (2007: 455) has shown, entextualization is part and parcel of legal contexts
where talk originally produced in one setting will be written, summarized, reworded
and reframed by participants not directly engaged in the original talk. Crucially, this
reframing process often involves participants whose interpretations of the original talk
ultimately become the official story of the institutio. That is, the legal entextualiza-
tion also constitutes an authoritative account that ultimately affects the contexts to which
that talk is related. The discourses used to entextualize text and context make up a new
matrix of contexts, and so the production of text and context always involves recontex-
tualization (Silverstein and Urban, 1996; Linell, 1998; Hodges, 2008) because contexts
are always changing. The mechanisms that define the parameters of the text and context
determine the chronological and causal relationship between the two (Richards, 1936).
One result of demarcating the referential content of the text-artifact and structuring the
relationship between text and context causally and/or chronologically is that the context
begins to seem objective, a set of stable elements that make texts meaningful.
In what follows, I unpack the discourses that make the excited utterance mobile, as a
way of locating and interrogating the layers of context and meaning that were deemed
unimportant or ineffectual when the utterance was entextualized as the legal artifact,

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Andrus 119

excited utterance. Using discourse analysis, or what Barbara Johnstone (2008: xiv) calls
an open ended heuristic [] consisting of a set of topics to consider in connection with
any instance of discourse, I analyze the definitional structure of legal precedents from
the US Court of Appeals and the US Supreme Court1 that have ruled on admissible hear-
say. Out of this web of precedents, USA v. Hadley2 (Sixth Circuit of the US Court of
Appeals, 2005) emerges as an important precedent because it was decided just after the
US Supreme Court opinion, Crawford v. Washington (2004), which changed the admis-
sibility of some types of hearsay. Due to the timing, it goes painstakingly through the
precedents in which the rationale for the excited utterance exception has been developed.
I use this precedential backdrop to analyze the discourse of the USA v. Hadley (Hadley)
jury trial (heard in the Federal District Court by Chief Justice Collier, 20023) in order
to locate the ideological underpinnings of the rule. I focus here on quotation and the
attribution of utterances to Mrs Hadley that occurs in the direct examination of the police
officers in whose testimony the excited utterance is established. Using the discursive
construction of the excited utterance in Hadley, I show that the relationship between text
and context is complicated by the institutional, individual and idiosyncratic ways par-
ticipants interact; the discursive, social processes that participants bring with them to
produce and make sense of texts and contexts; and the prior discourses that constrain the
text, the context and the participants roles, in interactions concerned with the relation-
ship between texts and contexts. At the end of the article, I will suggest that this research
also complicates the concept of context for critical discourse analysis.

The excited utterance exception to hearsay


The excited utterance exception to hearsay is a text that is understood to give an account
of an event that has minimal rhetoricity and little, if any, contingency on prior discourses
and contexts. It is the model decontextualized legal utterance. Hearsay and the excited
utterance exception are defined in article VIII of the US Federal Rules of Evidence
(FRE) (1973/2004) and developed in Federal and State Court precedents (see, for exam-
ple, Crawford v. Washington, 2004; Davis v. Washington/Hammon v. Indiana, 2006).
Hearsay is the in-court repetition of the out-of-court utterance of somebody else not the
person giving testimony. An important innovation of Anglo-American common law
(Landsman, 1990; Shapiro, 1991) that dates back to the last half of the 1600s (cf. Gilbert,
1690 [1754]), hearsay is banned because the person with the first-hand knowledge of the
event the person who made the original utterance is not in the courtroom to be
examined and cross-examined in front of the judge, jury and accused. Hearsay has been
debated in legal circles for centuries and has a number of exceptions, including the
excited utterance exception. An excited utterance is a statement relating to a startling
event or condition made while the declarant was under the stress of excitement caused by
the event or condition (US Courts, 2006: 803.2). In other words, an excited utterance is
an utterance about an event that the speaker just witnessed or in which she/he was vic-
timized, and it is admissible because the speaker was excited by the event and speaking
spontaneously not rhetorically. As it is defined and operationalized in US case law, the
legally constructed excited utterance is understood to erupt into the world as an excited
utterance: a fully formed, objective (that is, not subjective) account of an event. The

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120 Discourse & Society 22(2)

reasoning for the admission of the excited utterance can be found in the rationale for
admissibility in appellate opinions, such as this:

We ask whether the statements at issue were made under circumstances that eliminate the pos-
sibility of fabrication, coaching, or confabulation, and that therefore the circumstances sur-
rounding the making of the statement provide sufficient assurance that the statement is
trustworthy and that cross-examination would be superfluous. Schreane, 331 F.3d at 563 (inter-
nal quotation marks and citation omitted) (emphasis in original). (USA v. Hadley, 2005: 10)

In other words, the context in which the utterance was made and to which it refers is
believed to still the reflective faculties of the speaker, thereby rendering the statement
trustworthy and cross-examination superfluous.
In the legal concept excited utterance, context is implicated in three important ways.
First, the excited utterance must be about an event; it must index the context that also
caused it to erupt from the speaker. This context is often domestic or intimate violence,
which is a context already stocked with expectations about both the abused and the abuser
that affect police training and policies (such as mandatory arrest policies), police-reporting
documents (such as victim response reports) and laws (such as no-drop laws). Second,
the context to which the utterance responds is positioned as the subject of the sentence,
the active agent (Andrus, 2009). It is the event that eliminates the possibility of fabrica-
tion and provide[s] sufficient assurance that the statement is trustworthy (USA v.
Schreane, 2003). Elsewhere the excitement of the context is said to make the utterance
inherently reliable (Ohio v. Roberts, 1980). In sum, the excited utterance is a referential
utterance that is self-cohesive a closed system of reliability, in which the utterance is
reliable, because it is reliable. Such an utterance is effectively decontextual meaningful
independent of the context in which it was produced (even though it must give an account
of this context) and the trustworthiness of the speaker. The relationship between the con-
text and utterance defined in this legal rule contains the contingency of the utterance, and
different, sometimes competing, contexts that it might index for different speakers and
through which it will be moved as it is recontextualized in different legal (con)texts. The
rule thus treats context as a mere backdrop for the utterance, rather than being intertwined
with the utterance. Ultimately, this simplification of context suppresses the role of insti-
tutional discourses in entextualizing the excited utterance and the contexts it indexes.
The event that led to two calls to 911 was domestic violence in which Mr Hadley held
a gun to his wifes head during an argument that took place at a party in their home. Two
police officers arrived at the home of the Hadleys within two minutes of the first call to
911, made by Yvette, a friend of Mrs Hadley. Officer Tyrone Williams arrived first, fol-
lowed closely by Officer Alicia Jenkins. Officer Jenkins testified that when they pulled
up, Mrs Hadley ran out of the house to the police, hysterical and in a state of panic. She
made comments to them that she was afraid of her husband and that he had a gun. Officer
Jenkins also recalled her saying that he put a gun up to her head. Officer Williams testi-
fied that Mrs Hadley ran out of the house and immediately said [H]e has a gun and hes
going to kill me. The police were responding to an assault in progress (USA v. Hadley,
Williams Testimony, 2002: 20), and indeed the initial charges that were brought against
Mr Hadley were for aggravated assault. In Officer Williams words, I initially arrested

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Andrus 121

Mr Hadley for the assault that occurred on Mrs Hadley. [] The firearm was in addition
to the assault itself, because she told me it was used in the assault (USA v. Hadley,
Williams Testimony, 2002: 23). The initial charges of assault were dropped within 36
hours of Mr Hadleys arrest and replaced with felony possession of a gun. When the
charges changed, so did the description of the context of arrest and the excited utterance
evidence. The context being reflected by the utterance is simplified transformed from
contextually dense intimate violence to a legally controllable assault with a gun.
During the trial both officers gave testimony, but Mrs Hadley did not.3 As is common,
the attorneys for both sides created narratives of the event in question. In their narratives,
the context is clearly defined and simplified to suit the requirements of the legal setting
(cf. Gewirtz, 1996), facts are established (cf. Bruner, 1998) and the vocabulary for telling
and retelling the narrative is established (cf. Ehrlich, 2001). The attorneys elicit answers
that establish (and challenge) the facts and chronology of events and establish a way of
talking about the facts using a legal vocabulary that constrains the potential answers
(cf. Conley et al., 1978; Ehrlich and Sidnell, 2006). In the following trial extracts from
the direct examination of the first witness, the attorney asked questions about the event
in question, which limited and gave shape to the context referenced.

Q: How long did it take you to get there?


A: Probably a couple of minutes.
Q: When you say a couple, you mean two, or ten?
A: Probably two minutes. (USA v. Hadley, Williams Testimony, 2002: 7)

The attorney for the government provided vocabulary for the officer giving testimony
that facilitated the admission of the excited utterance that would be elicited soon after.
The attorney needs to control the vocabulary of time, because many judges look at the
timeline to decide whether a speakers reflective faculties were stilled when the utterance
was made. The difference between two and 10 minutes could mean the difference
between an excited utterance and a subjective utterance.
Upon establishing the time frame, the examining attorney for the government contin-
ued asking questions that frame the context of the excited utterance, by establishing the
emotional state of the speaker. Excited speakers are thought to speak spontaneously, and
so time and emotional state are used together to measure for spontaneity. Continuing the
testimony, Officer Williams is asked a series of open-ended questions in which he estab-
lishes the emotional state of Mrs Hadley.

Q: What happened when you arrived?


A: As I arrived on the scene and got out of my patrol car, I observed Mrs Hadley running
from the front door. Seemed to be in a state of panic. And at that
Q: Why do you say that?
A: She was crying, very upset, shaking, just really didnt have any control of her emotions at
that time. (USA v. Hadley, Williams Testimony, 2002: 7)

The reiteration of her emotional state is important as a key aspect of the context of utter-
ance, and terms such as hysterical and crying are repeated many times during trial and in

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122 Discourse & Society 22(2)

the appellate opinion. Thus, the texts of the courtroom give shape to the context being
referenced by limiting and giving shape to the answers to questions about the event.
After establishing both time and the emotional state of Mrs Hadley, Mr Neff, an attor-
ney for the government, asked the open-ended question that led to the excited utterance.
The co-texts of this utterance are contributed by Mr Neff (prosecution), Mr McDougal
(defense) and Judge Collier, all of whom worked together to recontextualize and entex-
tualize the utterance attributed to Mrs Hadley as an excited utterance (USA v. Hadley,
Williams Testimony, 2002: 8):

Q: Okay. What happened next?


A: At that time she was yelling something
Mr McDougal
[defense attorney]: Objection, Your Honor. Hearsay.
The Court: Overruled.
A: At that time she was yelling to me and another officer that He has a gun.
Mr McDougal: Objection. Hearsay again.
A: And said, Hes going to kill me.
The Court: Whats the objection?
Mr McDougal: Hes basically stating that she was yelling that He has a gun. And that is
hearsay, Your Honor. Hes basically stating what somebody else is stating
in this case, Your Honor.
The Court: Mr Neff?
Mr Neff: Judge, we are offering it as an excited utterance.
[attorney for
government]
The Court: Okay. Mr McDougal, the government argues that these statements are
admissible pursuant to Federal Rules of Evidence, Rule 803(2).
Mr McDougal: Yes, Your Honor. But I believe at that time I mean, its basically more of
a statement. She was coming out of the house, is what the testimony is. I
dont think the incident was going on at that time. Therefore I dont think
it falls into the scope of excited utterance.
The Court: Objection is overruled.

The objection exchange gives Mr Neff the opportunity to have the excited utterance
repeated another time.

Q: Im sorry, Officer Williams. What did she say as she came out of the house?
A: She stated to me that He has a gun, and she said, He was going to kill me. (USA v.
Hadley, Williams Testimony, 2002: 8)

In this exchange, the context to which the utterance refers is simplified to a finite moment
in which a man held a gun. When viewed embedded in trial language, the indebtedness
of this simplified context to the rules and discourse of the legal system becomes appar-
ent. This text does not index an unfolding, complicated event with multiple participants
and background noise (which becomes apparent when we look at the testimony of the

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Andrus 123

witnesses as a whole), but rather one single event.4 The presuppositions of the rule time,
excitement, single event abridge the context in the process of entextualizing the excited
utterance: he has a gun. The presuppositions are so deeply ingrained in the legal system
that the attorney for the government, Mr Neff, merely states, Judge, we are offering it as
an excited utterance when the objection is called. Having been adequately primed by the
prior legal discourses, briefs and conversations, Judge Collier himself cites the Federal
Rules of Evidence, the legal discourse required to admit the excited utterance. Such legal
discourses make the excited utterance seem objective distinct from and prior to con-
texts and interactions.

Police (re)contextualization of the excited utterance


During the trial, the police officers took the stand first, establishing the scene, their pro-
cedure and, of course, the excited utterance. The police in general are represented as hav-
ing simply arrived at the house and heard the naturally occurring excited utterance. As
they explain in their testimony, they didnt ask leading questions or direct her explanation
of events in any way. It is in police testimony that the excited utterance is entextualized
via recontextualization. Treating the police officers as nothing more than addressees of
the excited utterance reduces their role in interaction to bystander, which works to down-
play their institutional role, interactional contexts and the prior texts that inform both.
In direct examination, each officer focused on different aspects of the interactional
context: Officer Williams focused on the gun and how important it was to locate and
neutralize the gun; Officer Jenkins focused on taking statements and talking to Mrs Hadley.
We also get a sense of the prior expectations of Mr and Mrs Hadley during sentencing
when Mr Hadleys previous encounters with the police are described and Mrs Hadley
takes the stand to try to reclaim the utterances attributed to her. Figure 1 illustrates the
range of contexts that converged when the police interacted with Mrs Hadley on the front
lawn of her home, minutes after a domestic assault, and the web-like interconnection
between texts and contexts.
No single speaker referenced all of these contexts, but all are mentioned over the
course of the trial and sentencing. The police officers and Mrs Hadley bring different sets
of prior contextual knowledge to the interaction. The officers expectations are filtered
through training, forms and previous responses to domestic assault calls. Mrs Hadleys
expectations and goals are filtered through her prior encounters with her husband, her
goals in the moment, her expectations for her future and, primarily, the event that pre-
cipitated the call to 911: domestic assault.5 The matrix of contexts matters very little in
the courtroom, where the filters of courtroom rules of interaction, jury values and the
police officers viewpoint (cf. Lewis, 1993) have more authority in constructing a legiti-
mate account of what happened. The authority of the police officer testimony, the values
of the judge, the ability of the attorneys, the rule of law all were active in the entextu-
alization and recontexutalization of the excited utterance. The very same discursive ges-
ture also simplified and hypostatized6 the context indexed by the utterance, which is
indicated by the circle with a double line in Figure 1.
In his testimony Officer Williams positioned himself as a spectator, a person outside
of the scene that he is observing and trying to control. In offering the excited utterance,

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124 Discourse & Society 22(2)

Utterance is about this context (1)


Assault that
happened Original utterance is reported
Hadleys prior moments before as having been said in this
arguments/ police arrived context (2) Excited utterance is said and
assaults
entextualized and
that informed
recontextualized in this context (3)
the fight
Mrs Hadley at her
Mrs Hadleys home speaking to
history with her police about Police testimony
husband domestic assault in the trial

Expectations
Mrs Hadleys
about domestic Institutional prior
prior interactions
assault (con)texts
with police
of the individual training for domestic
police officers assault, police policies,
report templates, etc.

Mrs Hadleys Prior Contexts Context(s) of Interaction Police Officers Prior Contexts

Figure 1. (Con)texts that are implicated in the entextualization of the excited utterance in
USA v. Hadley (2002)

given above, he used a quotative style that maintains him as an outsider who was spoken
to: she stated to me that he had a gun, and she said, He was going to kill me (USA
v. Hadley, Williams Testimony, 2002: 8). Though this was not the only (para)phrasing of
the original utterance, it is no surprise that the excited utterance offered here was the
excited utterance reiterated over the course of the trial, in the appeal and when the appeal
is cited by later cases, because it explicitly uses a quotative style that keeps the focus on
the empirical details, original speaker and original context.
Officer Jenkins testimony is noticeably different from Officer Williams, although, as
we will see, the differences between the two are not accounted for in the appellate opin-
ion. Most of Jenkins account of the event focused on the domestic context and the
assault on Mrs Hadley. When asked to continue with her testimony, Officer Jenkins nar-
rated her initial encounter with Mrs Hadley, giving more detail about the interaction than
Officer Williams had.

Basically It was hard to get anything out of her. Like I said, she was hysterical. She was weep-
ing, and, you know, I was doing my best to try to get her to talk. And basically she kept talking
about a gun, how he put a gun up to her head, and how he was going to kill her. (USA v. Hadley,
Jenkins Testimony, 2002: 30)

Compare this to Officer Williams version of the excited utterance (discussed above). As
it was narrated by Officer Jenkins, the initial interaction between police and Mrs Hadley
was far more dialogic and contextually situated. The event in this account was not a situ-
ation in which a single utterance about a gun was blurted out. Officer Jenkins narrates a

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Andrus 125

discursive event an event that took place in contextually dependent dialogue. She
doesnt merely reiterate a statement, but gives a representation of interaction between
Mrs Hadley and herself. In so doing, Officer Jenkins account makes Mrs Hadleys reac-
tion to the violence the focal point of the event (. . . she was hysterical. She was weeping,
and, you know, I was doing my best to try to get her to talk), and situates the gun as a
feature but not focal point of the scene. In other words, the context narrated by Officer
Jenkins involved a gun, but does not revolve around the gun; it revolves around
Mrs Hadleys reaction to assault. The information about the gun that Officer Williams
focused on is given toward the end of Officer Jenkins narrative, after she has established
the scene of interaction, including dialogue between the police and Mrs Hadley: So
basically I was, like, pleading with her, Look, Im going with you. Im You know, I
will be there. I will be in between you. You know, there is nothing he can do to you
(USA v. Hadley, Jenkins Testimony, 2002: 33). In her retelling of the event, she appears
to understand herself as an active participant in the interactional context, and she sees
Mrs Hadleys central concern as a structure of violence.
Officer Williams testimony is used by the attorney for the government, Ms Combs,
to interrupt and refocus Officer Jenkins testimony on the issue of the gun (2002: 32).

Q: I want to back up just for a minute. You stated earlier testified earlier about Mrs Hadley
running out of the house and stating to you, or yelling to you, He has a gun. Hes going
to kill me.
A: Yes, maam.

Importantly, Officer Jenkins did not make those statements, Officer Williams did. As I
quoted above, Officer Jenkins gave an account of the things Mrs Hadley talked about.
From a structuralist perspective, it may seem like the meaning packaged in both state-
ments is the same, and perhaps that is what led Officer Jenkins to reply in the affirmative.
However, the two ways of linking Mr Hadley to the gun presuppose different ways of
contextualizing the utterance: one in which the primary event is domestic violence and
the other in which the primary event is felony possession of a gun, which are the charges
that Hadley was convicted on. He has a gun thus becomes the authoritative account,
simplifying the context it was about, and making many aspects of the context in which it
was uttered, namely police expectation, seem irrelevant. When Officer Jenkins discusses
herself as a participant, she is redirected to repeat the correctly entextualized account,
which focuses on a gun. Thus, the trial context, the expectations of the judge, the goals
of the attorney asking the questions, the charges brought against Mr Hadley and the prior
discourses of law are also involved in the recontexutalization of both the excited utter-
ance and the event it indexed.

Texts and contexts in the appellate opinion


The appellate court is built out of the trial transcript, measuring the trial procedure and
verdict against the measurement of precedent and statute. The layer of recontextualiza-
tion makes the excited utterance portable and suitable for application in other cases con-
cerning felony possession of a gun. In the 2005 appellate decision for USA v. Hadley,

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126 Discourse & Society 22(2)

the excited utterance is reified as substantively and effectively the same as the original
utterance. With each reiteration of the excited utterance in the appellate opinion, he has
a gun is further decontextualized and delinked from the context of domestic assault that
Mrs Hadley references when she speaks to the police.7 As it is moved from the trial to the
context of the appellate circuit, the excited utterance in question is evaluated and judged
using more legal texts. Recontextualized in this legal discourse, the utterance is abstracted
away from the circumstances of utterance and the expectations and history of the people
involved in Hadley, and toward the discourse of excited utterance case law of which it
has become a component. In the evaluation of the excited utterance that takes place in the
appellate opinion, the court applies the discourses developed in 300 years of common
law to explain and rationalize their decision. The analysis that takes place in the appellate
opinion breaks the excited utterance into its conceptual parts (determined by precedents)
and evaluates each in the service of evaluating the whole: was there an exciting event and
was the speaker under the stress of the event? Each time the excited utterance he has a
gun is reiterated, it is used in the service of a specific legal argument, and thus it does
different rhetorical work. When it is first reiterated in the appellate opinion, the excited
utterance is distinctly situated in testimony and the transcript of the trial: According to
the officers, Mrs Hadley yelled that he has a gun and hes going to kill me (Id. at 78,
30, J.A. at 2930, 43) (USA v. Hadley, 2005). The discursive complexity of admissible
hearsay is clearly apparent in this statement. An excited utterance must: accurately
recount the facts as they were established in trial; reference the police speakers who were
authorized speakers during the trial; and link the utterance directly to the only person in
a position to be so startled by the event that the resultant utterance could be an excited
utterance Mrs Hadley. Because of the complexity of the discursive situation of hearsay,
the discourse markers point in multiple directions. The use of parenthetical citation lets
the reader know that this information was obtained from the trial transcript, the first writ-
ten version of the utterance. The fact of hearsay is clearly established in calling attention
to the role of the officers with the introductory quotative clause according to the offi-
cers. Next, the indirect quotation marker that is used, signaling a paraphrase but not a
direct quotation. Nevertheless, the utterance is still marked with quotation marks which
link the utterance to the original event and the original speaker.
Again, the next iteration of the excited utterance is given in the description of the legal
background: The Government called Officer Williams as a witness, and sought through
his testimony to introduce Mrs Hadleys statements that he has a gun and hes going
to kill me (USA v. Hadley, 2005). Because this is the place in the appellate opinion in
which the procedural background is given, the attorneys action in calling for a witness
and providing him the opportunity to introduce the excited utterance is included in this
reiteration of the trial excited utterance. But, again, the quotation marks, an indicator of
an exact quote, are used along with that, an indicator of indirect quotation or paraphrase.
The use of direct and indirect quotation helps conflate Mrs Hadleys speech with the
police citation of that speech during the trial. Linking the excited utterance directly to the
event does three things: first, it makes the excited utterance appear to have been pro-
duced fully formed as an excited utterance; second, it elides the effects of the context of
domestic assault and the police officer; and, finally, it ignores the effects of the legal
context in which the utterance is elicited and evaluated. By following the citation in the

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Andrus 127

appellate opinion back to the trial transcript, we can see that the word that was said by
Officer Williams when he first introduced the excited utterance. The appellate opinion is
explicitly quoting from the trial transcript, marking the quoted text with a parenthetical
citation:

The Government called Officer Williams as a witness, and sought through his testimony to
introduce Mrs Hadleys statements that he has a gun and hes going to kill me. (USA v.
Hadley, 2005)

In the trial transcript (USA v. Hadley, Williams Testimony, 2002: 7), we find this quote:

At that time she was yelling to me and another officer that He has a gun (omitted line 19) and
said, Hes going to kill me.

When the appellate opinion quotes the excited utterance testimony, the word that should
have been a part of the quote, that is, inside the quotation marks, indicating that the offi-
cer was paraphrasing not quoting. When Officer Williams says the utterance in his testi-
mony, he uses indicators of both indirect and direct quotation. He uses the word that.
Because the quote is directly attributed to the officers in the parenthetical citation, the
word that should be marked as coming from Officer Williams speech. Additionally, in
the two consecutive talk turns in which the excited utterance is produced and reproduced,
Williams used both the present tense has, which would be direct quotation, and the past
tense had, which would indicate indirect, after-the-fact quotation. In the appeal, only
the present tense is quoted, and, in fact, when the appellate opinion uses the past-tense
form, had, it is marked with square brackets ha[d] indicating that this change was
made in the appellate opinion (USA v. Hadley, 2005: 7). Thus, the fact that Officer
Williams testimony ambiguously uses direct and indirect quotation indicators at the
same time calls attention to the fact that quoted speech will bear features that index the
different speakers and contexts through which the utterance is filtered.
Additionally, Officer Williams paraphrasing is structurally erased in the appellate
opinion. According to the excited utterance exception, a paraphrase cannot be an excited
utterance, because a paraphrase is the product of the person paraphrasing. An excited
utterance is bound by legal rules that link it directly to the person who saw the event, and
these rules treat the excited utterance as though it is linguistically and semantically the
original utterance. Moreover, the legal context in which the utterance is embedded pre-
supposes that an excited utterance will be a direct quotation. What we see in Hadley is
that when the spoken is transcribed, the expectations of the court, the presupposition
embedded in the legal concept itself and the conventions of writing led to the use of
quotation marks, even when the speech is in the form of paraphrase.
These competing conventions mark the utterance as a quotation of Mrs Hadley, and in
so doing they elide the consequences of the context. In other words, the evaluation of the
utterance in the appellate opinion shapes, simplifies and places the utterance fully formed
in the mouth of Mrs Hadley. In the shaping of this referential utterance making it sim-
ply about a gun the context it indexes and the contexts it passed through (police report,
trial, etc.) are all given shape some information is excised as irrelevant, whereas other

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128 Discourse & Society 22(2)

bits of information are highlighted. For example, some aspects of the police and trial
contexts are ignored completely. It is in the interest of the law to accurately represent the
speakers through whom the excited utterance is transmitted, because the police were
the authorities on scene to witness the aftermath of the incident with the gun, witness the
hysteria of Mrs Hadley and create an authoritative account of the event. However, includ-
ing that inside of the quotation marks would call too much attention to the police offi-
cers discursive agency, and de-emphasize the attribution of the statement to Mrs Hadley,
the only person who saw the event and would have been sufficiently excited by it. The
police officer bringing this event into the courtroom is working between the spoken and
the written contexts, and he uses indicators of both. The court reporter who transcribes
the utterance is especially aware of the interplay between the two language systems, and
as she translates the spoken into the written, she necessarily disciplines the spoken (adds
quotation marks), but without upsetting the fidelity of the transcript (she doesnt omit
that). And, thus, both the police interaction and the trial are indexed in the trial tran-
script, a point the appellate opinion seems to ignore.
Reiterating that face-to-face interaction of the encounter between the Hadleys, and
between the Hadleys and the police, in the institutional and textual context of the court-
room divides the texts out of contexts in such a way as to preserve the causal relationship
that is required by the legal rule: an exciting context causes a particular speaker to make
a spontaneous and thus trustworthy exclamation. In other words, the presuppositions of
the court, which supersede individual interaction, assume a causal relationship between
context and text, thereby entextualizing that relationship in the artifactual excited utter-
ance: he has a gun.

Intercontextuality and institutional discourses


The interaction between texts and contexts that I have described is web-like and subjec-
tive, texts and contexts are both constructed and mutable, and they work together to create
meaning, which itself will change as the (con)texts, participants and discourses change.
Thus, it cannot be accounted for using the typical view of the relationship between texts
and social contexts (Fairclough, 1995: 97): the nature of the discourse practice of text
production shapes the text and leaves traces in surface features of the text. In this view
of the relationship between text and the social world, the text is positioned as a feature or
offshoot of a set of social practices in which it is embedded. Any instance of discursive
practice can thus be interpreted in terms of its relationship to existing orders of discourse
and discursive practices [] as well as its relationship to existing social structures, ide-
ologies and power relations (Fairclough, 1995: 95). The relationship between text, dis-
course practices and sociocultural practices that Fairclough is discussing are represented
in this well-known visual (Fairclough, 2001 [1989]: 21; 1995: 98).
This model conceives of interaction and context as distinct, with context narrowly
accounting for societal and/or cultural practices. Fairclough developed this model as a
context-sensitive model for text analysis applicable in analyses of social, political, his-
torical and cultural impacts on a text (see Benwell and Stokoe, 2007 for more on this).
However, for some, it doesnt pay adequate attention to the participant or what Schegloff

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Andrus 129

Text

Interaction (1989)
Discourse practice (1995)

Context (1989)
Sociocultural practice (1995)

Figure 2. Norman Faircloughs model of the relationship between text and practice (1995,
2001[1989])

(1997) would call talk-in-interaction. Schegloff (1997: 167) has criticized this model
for being too topdown, calling it theoretical imperialism. The analyst approaches the
discursive interaction with critical terms like text and discourse, by which the analyst
stipulate[s] the terms by reference to which the world is to be understood (Schegloff,
1997: 167). Of course, Schegloff and other conversation analysts have been criticized by
CDA scholars for treating interaction and utterances as though they are context-free (cf.
Van Dijk, 2008a). Thus, Jan Blommaert (2005: 1516) argues that in analyzing language-
in-society, the focus should be on what language use means to its users in its actual and
densely contextualized forms (emphasis his). The problem for Blommaert (2005: 17) is
that the linguistic bias of CDA stops it from adequately attending to what he calls the
forgotten contexts. As William Hanks (1996: 196) puts it, context cannot be treated as
the scenery to which language and interactive structures are related once they have been
objectively defined on other grounds, linguistic or sociological. The nesting figure and
metaphor of embeddedness makes the messy interconnectedness of text and context, or
sociocultural practice, seem a far simpler relationship than it actually is.
Conceiving of text as embedded in context makes it difficult to account for the rela-
tionship between entextualization and recontextualization of the excited utterance excep-
tion. As the above analysis of the excited utterance exception shows, the causal
relationship between context and text, in which contexts act on and inform texts, is estab-
lished by the metadiscourses that call attention to the text-ness of a bit of discourse, while
positioning it as a representation of the contexts of which it was a part. In other words,
the excited utterance exception treats context (the original event) as an already fully
formed object that the true utterance simply reflects once it has been placed in a neutral

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130 Discourse & Society 22(2)

Context 3
Context 2 Trial context in which
Context 1 Context in which the the police officers say
Context indexed in excited utterance was the excited utterance Context 4
excited utterance said to police officers (November 2001 to June Appellate context
(May 2001) (May 2001) 2002) (2005)

Simplified
Domestic He has
original
assault a gun
context

Face-to-face interaction that Utterance said in a Utterance repeated in Utterance repeated in


includes competing, multiple context with competing, context that minimizes context that ignores effects
and overlapping texts and multiple and overlapping and ignores co- of trial context and prior
contexts texts and contexts contextual factors of legal texts, and conflates
original context the first two contexts

Figure 3. Simplification of context via reiteration and recontextualization

context (the law). On closer inspection, the relationship between text and context is far
more intricate and multidirectional with texts affecting contexts as much as contexts
affect texts. Context is not simply prior to and productive of the text. As Van Dijk (2008a,
2008b) argues, context is not objective and stable. What this analysis shows is that con-
ceiving of texts as embedded in contexts (Figure 2) doesnt go far enough in understand-
ing how texts and contexts are co-constructed in response to changing institutional
discourses and individuals changing concerns and world views. In the case discussed
here, without a more nuanced conception of the interplay between texts and contexts, we
cannot locate and dissect the role of legal discourses and presuppositions in producing
both. This is in part because the legal (con)texts used to entextualize the excited utterance
put the text and context into an explicitly causal relationship, with the context preceding
and containing the utterances. The utterance that is used in the trial context to stand in for
and bracket the assault and the police interaction truncates all of the contexts that the
utterance moves through, and makes the utterance about a gun rather than an interaction.
Thus, the model represented in Figure 3 offers more resources and flexibility in locating
and interrogating the structures that truncate and/or abridge (con)texts.
As Figure 3 shows, the presumption of the causal relationship between the referential
excited utterance and the context creates a discursive situation that ignores some fea-
tures of context at various other points in the life cycle of the utterance. In Context 2, the
context of police reporting, domestic assault is the event that is granted primacy, eclips-
ing other aspects of the interaction. Context 3 is controlled by the servants of the court,
the judge and attorneys, who ask questions and can levy legal doctrine and interpreta-
tion. It is in this context that the key piece of evidence, the excited utterance, is reiter-
ated, eclipsing other aspects of interaction that Mrs Hadley claims were more important
to her (her relationship balanced with personal safety) when she took the stand during
sentencing. It is also in Context 3 that the official account of the original event is created
in the testimony of Officer Williams. In Context 4, the legal discourse hides its own role

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Andrus 131

in the construction of the text and context, by asserting that the meaning of the text
stems from context. Context 4 provides the structure that erases the effects of the recon-
textualization. The legal discourses strip away some contexts by assuming that they left
no traces on the utterance (prior interactions between Mr and Mrs Hadley, expectations
of police confrontation) or that they are neutral (police forms, training, policies). What
is left is an utterance about a gun that indexes a simple single-faceted context in which
the only activity (physical or discursive) was a man holding a gun. The shaping of the
utterance effectively simplifies the intercontextuality of the text, reducing the cacoph-
ony of interaction and the dialectical relationship between the text and the contexts
through which it moved.

Conclusions
Domestic assault is particularly contextually complex. The assault itself is rooted in the
historical trajectory of an intimate relationship (Baker, 2004; Shearer-Cremean, 2004),
and the laws that deal with domestic assault are new, borrowed from other legal contexts,
and steeped in the same patriarchy that domestic assault stems from (cf. Matoesian,
1993). Recognizing the multiple, competing contexts at play would fundamentally dis-
rupt the excited utterance, because it would reveal purpose rhetoricity as opposed to
spontaneity, which is the hallmark of the excited utterance. In other words, the discourses
of the excited utterance exception require a simplified relationship between context and
text in which the spontaneity of the utterance is easily recognizable. All witnesses except
for Officer Williams give a contextually complex account of the assault on Mrs Hadley,
but in the process of constructing the excited utterance, the intercontextuality is simpli-
fied to a simple and stable context, easily captured by the excited utterance. During the
entextualization process, Mrs Hadleys narrative is turned into something legally intel-
ligible (Ehrlich, 2007), an excited utterance, a process which also links it to an isolated
moment involving a gun rather than the contextually complicated and subjective rela-
tionship with her husband that extends beyond a single, isolated, (apparently) objective
moment. The domestic context is circumscribed to fit the purposes of the legal context/
texts and to properly elide the subjective position and goals of the speaker. Though
ostensibly intended to help Mrs Hadley, this paternalistic process effectively strips away
her civil agency, reducing her to a mere conduit for an utterance, rather than an active
agent able to make her own decisions, based on her knowledge of her whole context, not
one small aspect of it.
I have used a legal metadiscourse, the excited utterance exception, as an example of a
discursive structure that abridges context i.e. simplifies the meaning of a word by treat-
ing certain contextual features as though they are irrelevant. The legal discourse of the
rules of evidence provided a foundation that allowed the attorneys for the government
(after the fact) to preemptively establish the context of the original utterance as the kind
of context that would produce an excited utterance. By dismissing the elements of inter-
contextuality that always leave their traces on an utterance, and by dismissing the role of
the legal discourse in dividing the utterance from its contexts, this rule simplifies the
meaning of the utterance and suppresses its rhetoricity. By simplifying the utterance, the
context that it references is also simplified.

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132 Discourse & Society 22(2)

Texts cannot be isolated and situated within a context without altering both the text
(which is recontextualized) and the context. Texts and contexts are co-constructed over
and over as a part of interaction. Treating texts, especially representational texts, as
extensions of context or embedded in context assumes (however accidentally) that the
context being indexed exists in some stable, accessible form, and that the text simply
reflects the world. This is certainly the mistake made in the excited utterance exception
to hearsay, with its roots deep in the Enlightenment. The legal discourse of the excited
utterance assumes that some utterances are by their very nature distinct from the dis-
courses in which they were produced, and thus they represent an event that is stable,
complete and finite. What I have argued is that this view of the relationship between texts
and contexts is itself a (con)text that affects not only the shape of the text (excited utter-
ance) but also the contexts to which it refers (prior events). In other words, the excited
utterance is not only recontextualized, which it is, but also deeply intercontextual
indexing multiple, sometimes competing contexts all at the same time.
The nested box view of the relationship between text and context attempts to make the
treatment of discourse context-sensitive, but it does so in a way that treats social, cultural
and situational contexts as monolithic and identifiable structures that somehow exist out-
side of the text. And, indeed, in focusing on context as the unit of analysis, we run the risk
of reifying context. What I have shown here is that by carefully opening up a process by
which a context is constructed at the same time that we analyze discursive structures, we
can see that texts are made up of contexts and that contexts are shot through with texts.
Importantly, this is not (only) to say that in a different context an utterance can mean a dif-
ferent thing. Multiple and sometimes competing contexts make an utterance meaningful in
different ways for different participants in the same discursive event. As the utterance is
made meaningful, so is the context. Like texts, contexts are not meaningful in and of them-
selves; they are meaningful in relation to other contexts and texts used and implicated in
the process of separating a text and context out of ongoing discourse. The cultural, social
and situational contexts are not complete prior to interaction; the participants index differ-
ent aspects of each as they make sense of the utterances of their interlocutors. The context
becomes meaningful as an utterance is moved from speaker to speaker and context to con-
text. This reading of the relationship between context and text turns the traditional view on
its head. The context can no longer be seen as backdrop and cause of the utterance, because
context is itself affected by the (con)texts and situations that shape the utterance.

Acknowledgments
I am grateful to Barbara Johnstone for reading earlier versions of this article and giving
invaluable feedback, and to Andreea Ritivoi and Michael Witmore, whose insightful
comments helped clarify and focus the arguments and analysis presented here. Thanks
also to Roger Shuy and Teun van Dijk for their excellent comments and suggestions in
developing this article. Any error, of course, is mine alone.

Notes
1. The major US Supreme Court opinions are: California v. Green (1970), Ohio v. Roberts
(1980), USA v. Inadi (1986), Bourjaily v. USA (1987), Idaho v. Wright (1990), White v.

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Andrus 133

Illinois (1992), Lilly v. Virginia (1999), Crawford v. Washington (2004) and Davis v.
Washington/Hammon v. Indiana (2006). The Supreme Court is concerned with whether or not
an exception to hearsay satisfies the confrontation clause of the 6th Amendment to the US
Constitution. These precedents rule on different types of admissible hearsay, for example
Lilly v. Virginia is about co-conspirator statements, but in so doing, they also comment on
admissible hearsay generally, creating and reproducing criteria that any type of admissible
hearsay must adhere to. The notable cases from the US Court of Appeals cited in Hadley,
which was ruled on by the United States Court of Appeals for the Sixth Circuit, are: Haggins
v. Warden, Fort Pillow State Farm (6th Cir., 1983), USA v. Schreane (6th Cir., 2003), USA v.
Cromer (6th Cir., 2004) and USA v. Brito (1st Cir., 2005).
2. The trial, United States of America v. Jerome Hadley, took place on 1213 November 2002.
Sentencing took place on 21 March 2003 and 6 June 2003. Mr Hadley was tried in The United
States District Court Eastern District of Tennessee at Chattanooga, and was heard by The
Honorable Curtis L. Collier, United States District Judge. Officers Jenkins and Williams both
gave testimony on 12 November. The attorneys for the government were Tammy O. Combs
and Steven Neff; the attorney for the defendant was John G. McDougal. Appellate opinion on
United States v. Jerome Hadley, 431 F.3d 484, was issued by the United States Court of Appeals
for the Sixth Circuit in December 2005. The US Supreme Court denied certiorari in 2006.
3. Mrs Hadley insisted on taking the stand during sentencing. During direct questioning and
cross-examination, she alters key features of the story.
4. Indeed, if an utterance indexes multiple contexts, or an unfolding set of events, it is not an
excited utterance and is thus inadmissible (cf. Commonwealth of Pennsylvania v. Keys, 2003).
5. The differences in ways the participants understood this interaction between police and
Mrs Hadley could also be explained using schema theory. Social psychologists working with
context and language often use schema theory to understand the ways people make sense of
interaction and differences in perception. According to Arbib et al. (1987: 7), schemas are
units that make up an internal model of the world, allowing individuals to recognize par-
ticipant roles and situations and know how to interact. Schemas are thus flexible they can
be turned on, turned off and recombined into schema assemblages (Arbib et al., 1987: 8). In
the context of Hadley, schema theory could be used to explain how and why Mrs Hadley
responded to the police and vice versa. For the purposes of this project, I dont use schema
theory, because I am looking to discursive structures rather than cognitive ones to understand
the constraints imposed on meaning-making. Additionally, fully contrasting the entextualiza-
tion/recontextualization model proposed here with a schema theory model would be a big
project, warranting an article in itself.
6. The context for the assault on Mrs Hadley is established in the testimony of Officers Williams
and Jenkins; Mr and Mrs Hadleys view of their relationship, their prior knowledge of police
interaction, etc. are established during sentencing, after the jury has made their decision.
7. We only have a sense of what she said that night in the testimony of Officers Williams and
Jenkins. During sentencing, Mrs Hadley refused to read from her prior grand jury testimony
(given within 36 hours of Mr Hadleys arrest and in response to different charges), and she
would not repeat words she was told she had said earlier. Thus, any use of quotation marks
indexes police testimony, not Mrs Hadleys speech.

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Jennifer Andrus is an Assistant Professor of English and faculty in the University Writing
Program at the University of Utah. Her research interests bring together rhetorical theory
with discourse analysis to better understand the implications of legal discourses to the
discursive agency of individuals. Her work is aimed at better understanding the ideology
circulated in metadiscursive structures, like the US Law of Evidence, and the impact that
such legal discourses have on issues of gender and domestic violence.

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