The Talking Dead: 4 Observations About the Dying Declaration Exception Based on the Advisory Committee's Notes

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.

Working off of my post from yesterday about dying declarations being admissible for ("The defendant didn't do it") and against ("The defendant didn't do it"), I wanted to take a look at the Advisory Committee's Note to Rule 804.

In that Note, we first have the Committee in part justifying the former testimony exception by reference to the dying declaration exception:

Falknor concluded that, if a dying declaration untested by cross-examination is constitutionally admissible, former testimony tested by the cross-examination of one similarly situated does not offend against confrontation....The constitutional acceptability of dying declarations has often been conceded.

We then have an argument for expansion of the dying declaration exception beyond its common law roots:

The common law required that the statement be that of the victim, offered in a prosecution for criminal homicide. Thus declarations by victims in prosecutions for other crimes, e.g. a declaration by a rape victim who dies in childbirth, and all declarations in civil cases were outside the scope of the exception. An occasional statute has removed these restrictions...or has expanded the area of offenses to include abortions....Kansas by decision extended the exception to civil cases....While the common law exception no doubt originated as a result of the exceptional need for the evidence in homicide cases, the theory of admissibility applies equally in civil cases and in prosecutions for crimes other than homicide. The same considerations suggest abandonment of the limitation to circumstances attending the event in question, yet when the statement deals with matters other than the supposed death, its influence is believed to be sufficiently attenuated to justify the limitation.

Later, however, the Committee on the Judiciary limits this expansion, concluding that

Rule 804(b)(3) as submitted by the Court (now Rule 804(b)(2) in the bill) proposed to expand the traditional scope of the dying declaration exception (i.e. a statement of the victim in a homicide case as to the cause or circumstances of his believed imminent death) to allow such statements in all criminal and civil cases. The Committee did not consider dying declarations as among the most reliable forms of hearsay. Consequently, it amended the provision to limit their admissibility in criminal cases to homicide prosecutions, where exceptional need for the evidence is present. This is existing law. At the same time, the Committee approved the expansion to civil actions and proceedings where the stakes do not involve possible imprisonment, although noting that this could lead to forum shopping in some instances.

A few observations:

1. I find it interesting that the former testimony exception is justified by reference to the dying declaration exception, which is later declared to be not among the most reliable forms of hearsay. Additionally, I wonder if a litigant has ever used this reliability statement by the Judiciary Committee in making arguments to a judge or jury.

2. I find the reference to  applying the dying declaration exception to cases involving rapes and deaths during childbirths/abortions to be interesting. We already have special rules of evidence -- Rule 412-415 -- that apply to rape and sexual assault cases. I wonder whether it makes senses to expand the dying declaration exception to cases involving alleged rapes and sexual assaults.

3. I find it interesting that the Committee found that it made sense only to allow for the admission of dying declarations in civil cases and criminal cases involving homicide, "where exceptional need for the evidence is present." A foundational requirement for the exception is that the declarant be unavailable to testify at trial. So, how is the need for the evidence any less in any other type of criminal trial?

4. Another reason for this limitation is that a defendant can be imprisoned after a criminal action, which is why the exception was limited to homicide cases. But, as noted in yesterday's post, a defendant can use dying declarations to exculpate himself. Assume that Dan allegedly shoots Vince, who says, "Carl shot me" as he thinks he is dying. Vince survives but later dies in a car accident. If Dan is charged with attempted murder, is there an argument that Dan should be able to use Vince's statement under a "mercy rule" analysis? Should the statement come in under the residual hearsay exception?

-CM