Die Another Day: Does the Dying Declarations Exception Apply in Attempted Murder Cases?

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.

When I teach Rule 804(b)(2), students often ask whether this "dying declaration" exception applies in attempted murder cases. I always answer that the answer is likely "no" because homicide means homicide: the killing of one human being by another human being. That said, I've never come across a case on the issue, and I'm not sure whether one exists. Why? Well, consider the complicated fact pattern that would have to exist for a prosecutor to try to admit a dying declaration in an attempted murder trial. First, the victim would have to have reason to think that he was about to die when he made the statement but then make a miraculous recovery. Second, for Rule 804(b)(2) to potentially apply, the victim would have to be unavailable to testify at the attempted murder trial, meaning that the victim would need to miraculously survive the defendant's act but then become unavailable through some independent cause. 

So, is there any reason beyond speculation to believe that Federal Rule of Evidence 804(b)(2) does not apply in attempted murder cases? Let's take a look at Pennsylvania Rule of Evidence 804(b)(2).

Pennsylvania Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for

A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

As you can see from the language of rule, it does not contain the restriction in its federal counterpart limiting the exception to homicide trials. Why? Well, let's look at the Comment to the rule:

The common law traditionally, but illogically, excepted a dying declaration from the hearsay rule in a criminal prosecution for homicide, but not in a criminal prosecution for another crime, or in a civil case. Prior Pennsylvania case law followed the common law. See Commonwealth v. Antonini, 69 A.2d 436 (Pa. Super. 1949).    

Reasoned analysis dictated a change. If a dying declaration is trustworthy enough to be introduced against a defendant charged with murder, it is trustworthy enough to be introduced against a defendant charged with attempted murder, robbery, or rape. It is also trustworthy enough to be introduced against a party in a civil case. (emphasis added)

Now, obviously, this Comment is not a definitive statement of the scope of Federal Rule of Evidence 804(b)(2), but it certainly indicates that the drafters of the Pennsylvania Rules of Evidence thought that the Federal Rule did not apply in attempted murder cases.

One other interesting thing to note about the Pennsylvania rule is that the Comment explicitly justifies the exception on religious grounds:

The rationale for this exception from the hearsay rule was set forth in Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224, 225 (Pa. 1973):    

The reliability of a dying declaration is provided not by an oath, nor by cross-examination; rather, its admissibility is based on the premise that no one "who is immediately going into the presence of his Maker will do so with a lie upon his lips." Luch, L.J., Regina v. Osman, 15 Cox C.C. 1, 3 (Eng. 1881).

That's quite different from the federal approach, with the Advisory Committee's Note to Federal Rule of Evidence 804(b)(2) indicating that

While the original religious justification for the exception may have lost its conviction for some persons over the years, it can scarcely be doubted that powerful psychological pressures are present. See 5 Wigmore §1443 and the classic statement of Chief Baron Eyre in Rex v. Woodcock, 1 Leach 500, 502, 168 Eng.Rep. 352, 353 (K.B. 1789).

-CM