Dying declarations in an ever-changing world: a peek into the implications of expansion.

• Author: Jarreau, Jessica C.

"Of the doctrines that authorize the admission of special classes of hearsay, the doctrine relating to dying declarations is the most mystical in its theory and traditionally among the most arbitrary in its limitations." (1)

ARE all exceptions to the hearsay rule 100% trustworthy? What if the reasoning for codifying the exception has since changed? Should the rule change as the justifications change? When dying declarations were excepted from the hearsay rule, the belief was that these statements were, by their very nature, trustworthy since persons chanced fear of eternal punishment if they lied. (2) But what happens in a secular world where a person may no longer fear eternal retribution? Or what should happen when a person takes essential elements away from the traditional dying declaration?

The United States allows the dying declaration exception to the hearsay rule to be used in civil cases. Problems relating to the expansion of this exception are pronounced in the most recent United States case on the issue: Garza v. Delta Tau Delta Fraternity National. (3) In Garza, the Louisiana First Circuit Court of Appeal affirmed the decision of a district court to allow a suicide note to fall within the "statement under belief of impending death" hearsay exception. (4) Relying on the only other United State case that ruled the same way, (5) the Garza court determined that a woman who killed herself immediately after writing a suicide note believed her death was imminent, even though she had complete control over her death.

1. Historical Perspective

   1. The Hearsay Rule and Its Exceptions

      The need for the hearsay rule appeared in the 1500s when the prevalence of witnesses testifying in open court rose. (6) The purpose of the hearsay rule was to ensure that the ideal conditions, testifying by oath, in person, and by cross-examination, were met. An oath was considered important because it may induce "a feeling of special obligation to tell the truth, and it may also impress upon the witness the danger of criminal punishment for perjury." (7) Personal presence at trial was viewed as a way for the trier of fact to determine whether the witness was credible by observing his demeanor. It was easier to believe that a statement was accurate if the declarant was actually testifying in court. The main justification for the hearsay rule is the lack of opportunity to cross-examine the declarant. It is supported by the premise that "[a] person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties ... [H]e entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author." (8)

      Numerous exceptions to the hearsay rule have been established. These exceptions are allowed when "circumstantial guarantees of trustworthiness" justify the inclusion. (9) Exceptions pertaining to an unavailable declarant were deemed admissible although live testimony was preferred. Exceptions that were admissible regardless of whether the declarant was available were considered reliable if in-court testimony would be pointless. Ultimately, trustworthiness was the deciding factor as evidenced by Federal Rule of Evidence article 102, which states that "[t]hese rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." (10)

   2. The Dying Declaration First Appears in England

      In 1788, Silvia Woodcock was severely beaten. Two days before she died from the bludgeoning, she told a magistrate that her husband, William Woodcock, was the perpetrator. For the first time, the court encountered a problem in which hearsay evidence was available, but the witness was not. In an effort to allow the magistrate to testify to Silvia's deathbed statements, the court formulated an exception to the hearsay rule, in the case of a dying declaration by a person who has received a fatal blow. (11) Chief Baron Eyre stated:

      [T]he general principle on which this species of evidence is admitted is, that they are declarations 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 considerations 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 created by a positive oath administered in a Court of Justice. (12) This exception was very limited. The declarant had to be speaking at the moment of death when there was no hope of recovery.

      This decision was further explained almost 100 years later in Regina v. Osman. The court held that the exception's trustworthiness requirement was satisfied because no person "who is immediately going into the presence of his Maker will do so with a lie upon his lips." (13) The statement was thought to be reliable even though the declarant did not take an oath because a person's religious conviction would compel him to tell the truth. (14)

   3. The Common Law Rule Manifests in the United States

      Around the same time, the traditional common law rule developed in the United States. (15) The requirements were substantially similar to the English rule. "Although originally the use of dying declarations was not limited to particular types of cases, by the early 19th century common-law courts had begun to restrict their use to homicide prosecutions...." (16) The statement could be offered only in a criminal homicide prosecution for the death of the declarant. (17) Furthermore, the declarant must have actually died after making the statement. (18) Still today, "it is a rule of almost universal application in the United States that in the absence of statute dying declarations are admissible only in criminal cases where the prosecution is for homicide or for abortion in which the death of the victim is an element of the offense." (19)

      The rule was thought to be trustworthy because "the fear of impending death assumed to be as powerful an incentive to truth as the obligation of an oath." (20) The courts determined that the necessity of convicting the murderer overrode the risk of untruthfulness, even though it acknowledged that declarants do lie at the moment of death. (21) To qualify, it must be apparent that the declarations are made "by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance, when he has despaired of life and looks to death as inevitable and at hand." (22)

      As the world became more secular, the underlying rationale of the trustworthiness of dying declarations came into issue. However, "the thought persist[ed] that psychological forces produce a final truthful impulse, and it [was] said that memory and perception [were] not likely to be serious risks with dying statements relating to the cause or circumstances of death. " (23)

   4. United States Federal Rule of Evidence 804(b)(2)

      In 1975, the concept was codified in the Federal Rules of Evidence. The adopted language states:

      (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

      (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, 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. (24)

      The traditional common law rule was expanded to include civil actions in addition to criminal homicides. (25) Still relying on the English and common law rules, courts held that Rule 804(b)(2) provided for an exception to the hearsay rule "because the circumstances of belief of impending death seem to obviate any motive on the part of the declarant to misstate the truth. More realistically, the dying declaration is admitted, because of compelling need for the statement rather than any inherent trustworthiness." (26) Proponents for expansion of the rule to include all criminal and civil cases have been unsuccessful because "[t]he 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." (27)

   5. Louisiana Code of Evidence 804 (B)(2)

      Louisiana, the only civil law jurisdiction in the United States, adopted a similar rule in 1989. The article provides in pertinent part:

   2. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

      (2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death. (28)

      The only difference between the Louisiana rule and the federal rule is that there is no requirement that the statements be used only in cases of criminal homicides. This similarity is also apparent when the legislative intent is analyzed. "[T]he adoption of this Code facilitates the movement towards a uniform national law of evidence.... Louisiana courts now have available a body of persuasive authority which may be instructive in interpreting the Louisiana Code." (29) The language is virtually identical to the federal rule except that the Louisiana rule allows the statement to be used in all cases, both criminal and civil.

   6. Explanation of Belief of Imminent Death Requirement

      The need for the declarant to believe that his death is imminent has been a requirement since the concept was first applied in 1789. The...