Section 16.25 Dying Declarations

• Library: Evidence 2017

D. (§16.25) Dying Declarations

Out-of-court statements by a declarant who believed that the declarant’s death was imminent, with no hope of recovery, are admissible as “dying declarations.” State v. Smith, 32 S.W.3d 532, 547 (Mo. banc 2000). These statements are admitted partly out of necessity—there may be no other witness to the act other than the perpetrator. SeeState v. Custer, 80 S.W.2d 176, 179 (Mo. 1935). The historical reasons for the belief that these statements are trustworthy and reliable were cultural or religious, namely, that persons would be likely to tell the truth in these circumstances because they would not want to meet their Maker with a lie on their lips. The modern justification appears to be that stress and fear of death make it unlikely that the declarant would have a motive to falsify or be able to act on such a motive.

Despite legal scholars’ criticisms (and modern codes of evidence and contrary decisions from other states), Missouri adheres to the common-law rule that a dying declaration is not admissible in civil cases. Cummings v. Ill. Cent. R. Co., 269 S.W.2d 111, 119–21 (Mo. 1954). Federal Rule of Evidence 804(b)(2) allows statements under the belief of imminent death in civil cases; the speaker must believe that death is imminent, and then statements made about the cause or circumstances of the death are admissible as an exception...