The Difference Between Massachusetts and Federal Law on Dying Declarations

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.

As with other Rule 804(b) hearsay exceptions, Rule 804(b)(2) only applies if the declarant is "unavailable," which could be based upon the declarant dying soon after making the subject statement, but also could be based upon the declarant (1) dying days later; or (2) miraculously surviving, but suffering from memory loss (along with other types of unavailability). 

Massachusetts doesn't have official rules of evidence, but it does have a guide to evidence that sets forth the state's precedent on evidence law, and its "version" of Rule 804(b)(2) is a little different. It provides an exception to the rule against hearsay

In a prosecution for homicide, [for] a statement that a declarant, who believed that the declarant’s death was imminent and who died shortly after making the statement, made about the cause or circumstances of the declarant’s own impending death or that of a co-victim.

This same "rule" is stated in the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Monegro, 2024 WL 3579911 (Mass. App. 2024). So, when would this "rule" reach a different conclusion than the federal rule?

Imagine four separate scenarios as examples:

1. Dana shoots Victoria. An EMT tells Victoria she's about to die. Victoria says, "Dana shot me." Victoria dies minutes later.

2. Dana shoots Victoria. An EMT tells Victoria she's about to die. Victoria says, "Dana shot me." Victoria lives for a week before dying.

3. Dana shoots Victoria. An EMT tells Victoria she's about to die. Victoria says, "Dana shot me." Victoria lives but later dies in a car accident.

4. Dana shoots Victoria. An EMT tells Victoria she's about to die. Victoria says, "Dana shot me." Victoria lives but suffers from memory loss.

In situation #1, Victoria's statement would be admissible as a dying declaration under both federal and Massachusetts law. But, in situations #2-4, Victoria's statement would be admissible as a dying declaration under federal law while it would be inadmissible under Massachusetts law because Victoria did not  die "shortly after making the statement."

-CM