EvidenceProf Blog

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

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?



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Great questions. I think the explanation for the limitations you examine are merely historical (if not hysterical). A "lie on the lips" when meeting St. Peter is a lie regardless of whether it relates to the cause of death or the startling event. Why would St. Peter care? You're in trouble either way.

One might well ask, then, what were the historical reasons for these common law limitations? I don't know, frankly. Perhaps the only reason for the limitations are, as you suggest, to keep the exception from being used too much -- to allow it to be used when the evidence is really needed (in the D.D./homicide case, and because excited utterances normally relate to what startled/stressed the declarant. If other things are mentioned in BTW fashion, they are suspect (I guess). In the end, your critique amply shows that many of the hearsay exceptions are ridiculous vestigial remains of an earlier, less critical but more rigid age.

Thanks for your contributions.


Posted by: Fred Moss | Mar 6, 2013 1:39:35 PM

The subject of dying declarations is fascinating when one considers the root of the hearsay exception and the ensuing mental gymnastics to avoid that same root. The exception, which dates back 800 (sic) years, is firmly rooted in the well-reasoned belief that a religious person would not commit a mortal sin immediately prior to being judged by The Almighty. As such, whether the declarant held such a belief, i.e. whether the declarant believed in God, would be highly relevant. Moreover, one would think that as a mater of foundation, the proponent of such evidence would have to establish the declarant's religious bona fides. Indeed, there is ample legal history of precisely that analysis.

Whether one agrees with the logic today presents wonderful academic questions that are uncomfortably, if at all, debated by the courts. Instead, we are left with completely unsupportable suppositions suggesting "psychological pressures" mitigate in favor of truthfulness or that, in an ego driven, vain society, there is no basis to conclude that a dying declarant would act out of self interest when in reality there is more than adequate evidence that people seek to control things that will occur long after their death.

Under today's dying declaration law, a atheist sociopath driving a car with failed brakes can use his mobile phone to call 911 and say "John sabotaged my car," and with his next act, intentionally steer the car into an unsuspecting victim. Under an 18th century common law analysis, his declaration would be inadmissible. But in our enlightened society, John could be executed based upon the declaration of a man who felt no fear over the consequences of his last lie, and though so little of his soul that he committed an intentional murder as his last act.

I suspect, like much in the criminal law over recent decades, this thinking is rooted in the concept of victim's rights. After all, a victim's right to justice shouldn't be compromised by his religious belief or non-belief. But while that concept is both morally laudable and constitutionally correct, it does not follow that the courts alter well-reasoned hearsay exceptions to allow less (un-) reliable hearsay into the courts.

As far as the question you ask, Colin, (whether there is a good reason ...) I agree with Fred, subject to my remarks above. Why would St. Peter care about the subject matter indeed. Perhaps the limitations written into the law are a tacit admission by the code writers and the courts that they have shredded so much of the foundation for the exception that its use should be curtailed.

Posted by: Joe Heinzmann | Mar 7, 2013 1:03:13 PM

I would assert that there is a far more practical reason for why many of these exceptions exist: the need to make a case. Lawyers make cases, it is what they do for a living, and there is a deep reluctance by many in the legal profession to limit their ability to do what they perceive as their job. The only analogy I can think of is that it is like taking ammunition out of a gun. At some point in time if one takes all the ammunition out what is left is a useless gun.

Society could take the approach that unless the prosecutor had the proverbial smoking gun they wouldn't even be allowed through the courthouse doors. The good news about such an approach is that the public could have a high degree of confidence in the verdict, many of the silly rules of evidence would be eliminated, and costs would be much lower. At the same time time, there would be a lot of unhappy victims who would feel that they did not get their day in court and a lot of lawyers who would be out of work.

So while I also think it is logically unsupportable to allow a dying declaration, I also sympathize with the prosecutor who has a dead body, a dying declaration, and a victim's family who is crying for their day in court. Why not let the jury decide?

Posted by: Daniel | Mar 8, 2013 8:40:10 AM

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