EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, May 10, 2008

Forfeit Victory, Take 6: Another Example To Reject The Dying Declaration Argument

Previously, I wrote about the erroneous argument raised in oral arguments in Giles v. California about how reading a specific intent requirement out of the forfeiture by wrongdoing doctrine would swallow up and render useless the dying declaration.  As I noted in that post, there is at least one situation where the dying declaration exception would apply but a forfeiture by wrongdoing exception without a specific intent requirement would not.  Well, a question by a student regarding my upcoming Evidence exam has raised another clear example.  That question was whether the dying declaration exception can apply even if the declarant doesn't die.  The answer is that the exception can still apply, at least in a civil case.

Let's say that the defendant, Dan, is alleged to have violently attacked the victim, Victoria.  Victoria is seriously injured by the attack and thinks that she is on the verge of death (maybe an EMT even tells her that it doesn't look like she is going to make it).  She informs a bystander or medical services provider that Dan or someone with his physical characteristics attacked her.  Despite Victoria thinking that she was going to die, a doctor is able to perform his magic, and Victoria makes it. 

A civil suit is filed by Victoria and/or her family against Dan, but Victoria is "unavailable" to testify at trial as defined under Federal Rule of Evidence 804(a) and state counterparts, with her unavailability not being caused by the assault.  Maybe, for instance, she is later in a car accident and dies (Rule 804(a)(4)), or maybe she is senile and can no longer remember what happened (Rule 804(a)(3)). 

In such a case, the forfeiture by wrongdoing doctrine, even without a specific intent requirement, would not apply because even if there were strong evidence that it was Dan who attacked Victoria, Dan would not have caused her unavailability to testify at trial, a requirement for application of the doctrine.  On the other hand, the dying declaration exception under Federal Rule of Evidence 804(b)(2) (and state counterparts) states that "[i]n a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death" is admissible as an exception to the rule against hearsay as long as the declarant is "unavailable."

Here, we have a civil action and a statement made by Victoria while believing her death was imminent which concerned the cause or circumstances of what she believed to be her impending death.  While Victoria did not actually die, this fact is irrelevant; all that is needed is for the declarant to be unavailable, whether as a result of the incident prompting the dying declaration or as the result of some later event. 

Thus, as I noted before, there is absolutely no reason for the Supreme Court to find that the forfeiture by wrongdoing doctrine contains a specific intent requirement based upon the belief that ruling otherwise would render the dying declaration exception meaningless.



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