Wednesday, March 6, 2013
There's Just One More Thing: Why Do Excited Utterances & Dying Declarations Have To Relate to Their Cause?
Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay
In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
Meanwhile, Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
I have always wondered about the same limitation that applies in each of these Rules. A statement qualifies as a dying declaration under Rule 804(b)(2) only if it was "made about [the] cause or circumstances" of what the speaker believes to be his impending death. And a statement only qualifies as an excited utterance under Rule 803(2) if it "relat[ed] to [the] startling event or condition. Why?
Let's start with excited utterances. I wrote about these in my article, A Shock to the System: Analyzing the Conflict Among Courts over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 Wm. & Mary J. Women & L. 49 (2005). As I noted in that article,
The central theory behind the excited utterance exception is that startling events and conditions cause a certain level of stress in an individual. While the individual is controlled by the stress caused by such an event or condition, her mind is completely focused on the occurrence, and she is unable to use her reflective capacity to lie. More specifically, the theory is that the individual is so consumed by the stress of the startling occurrence that she is unable to act to promote her own self-interest. The necessary principle underlying this theory is that people's instinct is to tell the truth and that it is only when they begin to reflect on an occurrence that they begin to twist or create facts for their own benefit.
So, let's take a hypothetical: William is at Bob's Bar when he simultaneously sees two things: (1) A bartender serving alcohol to a minor; and (2) Dan brutally attacking Vince. William doesn't especially care about alcohol being served to a minor, but he is good friends with Vince, so he runs outside, calls 911, and hysterically says, "Send someone to Bob's Bar! Dan is killing Vince! And they're also serving beer to minors!"
William's statement about Dan attacking Vince is clearly admissible as an excited utterance, but what about his statement about serving alcohol to minors? This last statement seemingly doesn't qualify for admission because it does not relate to the startling event or condition in that it has nothing to do with Dan attacking Vince. But why shouldn't it qualify for admission? If we believe that William is so controlled by the stress of the attack that he can't used his reflective capacity to lie, why do we only allow for the admission of statements related to the attack?
The same applies if we tweak the facts a bit so that William's statement is a dying declaration. William is at Bob's Bar and is shot by Dan as he sees alcohol being served by the minor. When the EMT arrives and tells William that things aren't looking good, WIlliam says, "It was Dan who shot me. And I feel like I should tell you that they're serving alcohol to minors."
There are two arguable justifications for the dying declaration exception: The first is religious, that speaker doesn't want to die with a lie on his lips as he prepares to meet his maker. The second is that
At the moment wherein the deceased realizes his own death is imminent there can no longer be any temporal self-serving purpose to be furthered regardless of the speaker's personal religious beliefs. Indeed, given the physiological revulsion peculiar to the moment and common to all men, an express showing of the declarant's theological beliefs is immaterial. People v. Calahan, 356 N.E.2d 942, 997 (Ill.App. 1 Dist. 1976).
Again, this being the case, why do we limit the exception to William's statement about his shooter and not allow for the admission of the statement about serving alcohol to minors? If William doesn't want to die with a lie on his lips and/or doesn't have any motive to lie as he dies, why would his statement about serving alcohol to minors be any less reliable than the statement about his shooter?
I would imagine the reason for the limitation is that many unrelated statements are about more remote events, making such statements less reliable. The example I usually give to students is a dying declarant telling an EMT who shot him and that he left the stove on in his apartment. I can see the reason for excluding such a statement because the dying declarant could be remembering this older event incorrectly.
But in the examples I gave above, the other event is contemporaneous with the the startling/death causing event, and it is easy to imagine the other event actually coming after the triggering event if, for instance, William sees alcohol being served to minors in the bar after he has been shot but before the EMT arrives. If either of these is the case, can anyone think of a good reason for excluding the statement about alcohol being served to minors?