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March 18, 2013
Dying Declarations and the Hypochondriac
I've been writing a good deal recently about Federal Rule of Evidence 804(b)(2), which 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.
A popular question that often comes up in my Evidence classes is what to do with the hypochondriac under Rule 804(b)(2). If a declarant suffers a relatively minor injury, honestly but unreasonably believes that he is going to die, and makes a statement, does that statement qualify as a dying declaration if the declarant is "unavailable" at trial? I think that the answer is "yes." For support, let's look at Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010).I actually wrote about Satterwhite a a few years ago when it was decided, and I use it as a hypothetical in my Evidence class:
Hypo 2: Tanisha Naar found her boyfriend, Joyner, lying on her bathroom floor, covered in blood. She went over to Joyner and knelt down beside him as he gasped for breath. Joyner faded in and out of consciousness. Naar called 911. The 911 operator asked Naar what happened. While still on the phone, Naar asked Joyner “who did it?” Breathing heavily, Joyner replied, “Darin Satterwhite did it.” Paramedics arrived soon thereafter and were able to stabilize Joyner, who lived for another six weeks before passing away. Satterwhite is now on trial for murder. He claims that Joyner’s statement is inadmissible as a dying declaration because Joyner’s death was not imminent when he made the statement. How should the court rule? See Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010).
I use this hypothetical to demonstrate that what matters for purposes of the dying declaration exception is whether the speaker thinks that he is going to die, regardless of whether he actually is about to die. Moreover, as the court notes, this is a subjective rather than an objective inquiry:
FN5. Nor is it dispositive that others, including medical personnel, discount the likelihood of death. Hall v. Commonwealth, 12 Va.App. 198, 204, 403 S.E.2d 362, 366 (1991) (finding unpersuasive defendant's argument that "emergency room personnel" thought the declarant's "wound was minor"). "When considering the admissibility of dying declarations, the necessary element is a subjective one relating solely to the declarant's expectations." Id.
As the court held in Hall, "Here, we find that the trial court did not err in finding that the evidence demonstrated West's sure belief in his impending death; the statements to the contrary made by others do not require a different result."
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May I suggest that your Hypo #2 does not contain enough information to clearly establish that the declarant's statement was a dying declaration? There is no evidence that the declarant believed he was dying.
It is true that the time between the assault and the victim's death is immaterial as long as the declarant thought he was dying when he spoke. But the hypo gives not enough facts from which we can infer that. I would think that to make this clear and to clarify the issue -- does a prolonged time between assualt and death matter? -- the declarant would either have to say something indicating he believed he was dying or that he be told that he might not make it. The fact he was covered in blood (from what wound??) and died weeks later is not enough alone to infer the declarant's state of mind when he spoke. I would be reluctant to grade a student wrong if s/he answered "Not a dying declaration" based on the wording of the hypo as is.
Posted by: Fred Moss | Mar 19, 2013 12:40:17 PM