§ 34.04 Dying Declarations: FRE 804(b)(2)

• Jurisdiction: United States

§ 34.04 Dying Declarations: FRE 804(b)(2)

Rationale. The exception for dying declarations is based on (1) necessity (i.e., the unavailability of the declarant) and (2) a circumstantial guarantee of trustworthiness that greatly reduces the risk of insincerity. The theory is that people would not want to die with a lie upon their lips. As an early English case put it: Dying declarations "are made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced, by the most powerful consideration, to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."⁵³ Nevertheless, it is not too difficult to imagine a person who would lie, even at the time of death, to protect a loved one, or for revenge. In addition, the stress associated with these circumstances may diminish perception and distort memory.

Unavailability. In contrast to the common law, admissibility is not conditioned on the declarant's death. Any of the conditions of unavailability specified in Rule 804(a) suffices. In other words, a person could make the statement believing that death was near but then later recover. If that person is in France at the time of trial and refuses to return, the unavailability requirement is satisfied.

Firsthand knowledge. As with all hearsay exceptions, the firsthand knowledge rule applies.⁵⁴ The federal drafters noted that "continuation of a requirement of first-hand knowledge is assured by Rule 602."⁵⁵ Such knowledge, however, may be inferred from the circumstances.⁵⁶

[A] "Imminent Expectation of Death" Requirement

The statement must be made while believing death is "imminent." This requirement follows from the theory underlying the exception; a declarant who does not believe that death is near may not feel compelled to speak truthfully. In Shepard v. United States,⁵⁷Justice Cardozo stated that the declarant must have spoken "without hope of recovery and in the shadow of impending death" and "with the consciousness of a swift and certain doom."⁵⁸ In another passage, he wrote that the statement must be "made under a sense of impending death, excluding from the mind of the dying person all hope or expectation of recovery."⁵⁹

Proof. In Shepard, Justice Cardozo also commented that "the state of mind must be exhibited in the evidence, and not left to conjecture."⁶⁰ The declarant's belief of impending death may be established by the declarant's own...