EvidenceProf Blog

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

Friday, August 30, 2013

Die Another Day: Property Dispute Reveals Difference Between Federal & Utah Dying Declaration Exceptions

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.

It is easier to admit a dying declaration under Utah Rule of Evidence 804(b)(2). That rule provides an exception to the rule against hearsay

In a civil or criminal case, a statement made by the declarant while believing thedeclarant’s death to be imminent, if the judge finds it was made in good faith.

In other words, a statement is only admissible under Federal Rule of Evidence 804(b)(2) if it was made about the cause or circumstances of what the declarant believed to be his imminent death while there is no similar requirement under Utah Rule of Evidence 804(b)(2). As a result, statements made by a decedent while she was suffering from cancer were potentially admissible at a trial involving a Utah property dispute. But were they actually admissible? Let's take a look at Howard v. Manes, 2013 WL 4473091 (Utah App. 2013).

As noted, Manes involved a property dispute. Specifically, the grandchildren of the decedent, Thelma, claimed that she gave property to her son, Sam, and daughters with the intent to create an oral trust for the benefit of her children as well as for the benefit the grandchildren. The children disagreed. The grandchildren thereafter sought to prove their grandmother's intent to create a trust through statements that she made when she had cancer.

The trial court, however, found that these statements did not qualify as dying declarations, and the Court of Appeals of Utah later agreed. According to the appellate court,

In arguing that Thelma's statements are admissible under the dying declaration exception, the estate relies on the fact that Thelma made these statements after she had been diagnosed with cancer, some of them within a relatively short time before her death. Thelma was initially diagnosed with cancer in 1993, which went into remission but returned sometime in late 1999 or early 2000. Thelma died on August 26, 2001, and, according to the estate, Thelma made several of the relevant statements in July and August 2001, just weeks before her death. The estate thus argues that "[a]t the time [she] discussed the oral trust agreement with her daughters..., Thelma was in a state of imminent, impending death-and, in fact, she died very soon thereafter.. from her long bout with cancer."...

Sam, however, points out that during the summer of 2001, Thelma was undergoing chemotherapy and, in fact, had been receiving chemotherapy treatment on August 26, 2001, when she suffered an unexpected heart attack and passed away. He maintains that "Thelma could not have anticipated the heart attack, and if she had abandoned all hope of recovery from her cancer, then she would not have been undergoing chemotherapy treatment on the day she died." Sam thus argues that "there is...no evidence that Thelma had abandoned all hope of recovery from her cancer or thought her death was imminent." Indeed, some of Thelma's statements were requests that should something happen to Sam at a time when she, for some reason, was unable to act according to the purported verbal agreement, her daughters should do so for her. These statements do not indicate that Thelma was contemplating her imminent death but, instead, was considering the implications of Sam's death and her own incapacitation. Such facts defeat whatever inference might otherwise be drawn simply from the fact that some statements were made shortly before her death and during a period of time that she was battling cancer. Other statements were made even earlier, at a time less proximate to the date of her death, and her cancer diagnosis alone cannot satisfy the exception. Thus, because the evidence does not support a determination that Thelma "so fully expected to die from an existing affliction that [she] had in fact abandoned all hope of recovery,"...we conclude that the district court acted within its discretion in ruling that Thelma's statements are inadmissible hearsay and not subject to the dying declaration exception.

I agree with the court's conclusion, but I also wonder why the grandchildren (ostensibly) did not claim that their grandmother's statements were admissible under Utah Rule of Evidence 803(3), which provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.



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