Shortcuts to 'truth': the legal mythology of dying declarations.

Author:Liang, Bryan A.

    1. The Traditional Story

    2. Prima Facie Objections

    3. Some Scientific Considerations III. LAW AND ECONOMICS ANALYSIS

    4. The Rule is Valid

      1. Fingered Party is Guilty

      2. Fingered Party is Innocent

      3. Discussion

      1. Relative Frequencies are Equal

      2. Relative Frequencies May Not Be Equal

      3. Some Additional Considerations

    5. The Rule Does Not Apply

      1. Fingered Party is Guilty

      2. Fingered Party is Innocent

      3. Discussion

      1. Relative Frequencies are Equal

      2. Relative Frequencies May Not Be Equal

      3. Some Additional Considerations



    These rules shall be construed to secure fairness ... to the end that the truth may be ascertained and proceedings justly determined.

    --Rule 102. Purpose and Construction, Federal Rules of Evidence(1)

    Dying declarations enjoy a special position within the law of evidence. This position is expressed in Rule 804(b)(2) of the Federal Rules of Evidence (FRE):

    Rule 804. Hearsay Exceptions; Declarant Unavailable

    (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 his [or her] impending


    Thus, although hearsay,(3) dying declarations are not subject to the general hearsay exclusion if the declaration was made while the declarant was under a belief that he or she was dying;(4) directly relates to the "cause or circumstances" of the declarant's dying;(5) and the declarant is not available to testify.(6)

    There are important stakes to be wagered in any decision to adopt an exception to the hearsay rule. The fundamental risk of admitting an unimpeachable statement offered for the truth of the matter asserted resides in the potential that the statement or its interpretation is wrong -- and thus highly prejudicial against an innocent defendant. Of course, dying declarations are particularly important in a deeper way. They deal directly with the most critical of human circumstances -- that of one person killing another -- as well as one being severely punished by society for making this greatest of social transgressions. The potentially blinding emotional reactions that arise and are associated with such actions are strong, and the concomitant desire to inflict an extremely high cost against the accused is high. Hence, any decision to allow or exclude statements made in this arena should be measured carefully.

    In formal adjudication, the premise of the law is that a decision in favor of one party and against another is based on the merits of the case, after a careful consideration of all the relevant evidence. Thus, we would expect to find that the decision regarding the choice of a particular rule of evidence would be premised upon the same conception. However, on closer inspection, there appears to be little careful assessment in determining just what the rule regarding dying declarations should be. Instead, a mixture of western tradition and unsubstantiated theories has resulted in formal validation of dying declarations by allowing their admission over the general policy of hearsay exclusion under the current rules of evidence.

    This decidedly unrigorous approach is an unacceptable paradigm for analyzing what a particular legal rule should be. Law's substantiation should be based on a thorough assessment of the merits. Instead of the anti-rational, anecdotal method of determining admissibility of evidence as utilized by courts, commentators, and the drafters of the FRE, a workable paradigm is proposed here that involves an assessment of the relevant scientific evidence supporting or refuting the rule, consideration of the rule's theoretical social costs and benefits, and contemplation of important individualistic jurisprudential concerns that relate to the legal rule.

    In Part II, the traditional rationale for the current rule is provided and criticized on its face. In addition, relevant scientific and medical evidence is assessed, which provides support for the position that the current rule may not be appropriate. In Part III, a theoretical law and economics analysis of dying declarations is provided, which indicates that a hypothetical legal regime that excludes dying declarations was a greater likelihood of being socially desirable than the current rule.(7) In Part IV, jurisprudential concerns directly related to dying declarations are discussed which also appear to favor exclusion of these statements. Finally, in Part V, the paper's findings are summarized and a call is made for a reversal of the law's anti-rational hegemony and the use of a relevant and rigorous analysis to assess and choose legal rules.

  3. Basis of the Rule: No Evidence for the Evidence Rule

    The greatest derangement of the mind is to believe in something because one wishes it.


    1. The Traditional Story

      A logical and somewhat obvious starting point to assess dying declarations would be through an examination of relevant scientific and medical evidence. This form of analysis would provide a foundation of understanding as to the broad reliability limits these statements do or do not possess.

      Alas, those who support and propagate the current rule have not taken such an approach. Instead, the dying declarations exception appears to have developed through an amalgam of religious idealism and amateur psychology resulting in a conclusion that these statements possess an inherent trustworthiness or reliability.(8)

      Originally, it appears that the dying declaration exception predated the rule itself. Indeed, as early as the twelfth century, dying declarations such as deathbed statements were already "long understood" to be imbued with a "special trust."(9) On this basis, these statements began their elevated status as an exception to the rule against hearsay early in the eighteenth century.(10) Typical reasoning for such an admission was expressed by Lord Chief Justice Mansfield, who indicated that the dying declaration of Lady Douglas was admissible, for "[w]ould she have died ... with a lie in her mouth ...?"(11) Indeed,

      The principle on which this species of evidence is received is that the mind

      impressed with the awful idea of approaching dissolution, acts under a

      sanction equally powerful with that which it is presumed to feel by a solemn

      appeal to God upon oath. The declarations therefore of a person dying under

      such circumstances are considered as equivalent to the evidence of the

      living witness upon oath.(12)

      More modern perspectives echo these jurists' western cultural beliefs. For example, dying declarations have a "circumstantial probability of trustworthiness"(13) and thus should be admitted as evidence since "the probability of accuracy and trustworthiness of the statement is practically sufficient, if not quite equivalent to that of statements tested in the conventional manner [i.e., cross-examination]."(14) Apparently, simple "common sense and experience have from time to time pointed [to the conditions surrounding dying declarations] ... as practically adequate substitutes for the ordinary test"(15) of cross-examination. Hence, the dying declaration has, on the basis of western "common sense and experience,"(16) the requisite guarantee of trustworthiness. These circumstances, coupled with the western "fear of divine punishment,"(17) result in an unbeatable combination. Overall:

      (1) The declarant, being at the point of death, "must lose the use of all

      deceit" -- in Shakespeare's phrase. There is no longer any

      temporal self-serving purpose to be furthered.(2) If a

      belief exists in a punishment soon to be inflicted by a Higher Power

      upon human ill-doing, the fear of this punishment will outweigh any possible

      motive for deception, and will even counterbalance the inclination to

      gratify a possible spirit of revenge. (3) Even without such a belief,

      there is a natural and instinctive awe at the approach of an unknown

      future -- a physical revulsion common to all men, irresistible,

      and independent of theological belief.(18)

      Therefore, according to Wigmore, the dying declaration exception to the hearsay rule is, in his words, "to that extent, rational. . . ."(19) Even Quick, who criticized the current rule in his oft-cited piece, indicates that:

      By and large, however, the "sincerity guaranty" [of the declarant] theory

      seems the most cogent reason justifying the exception, even though the basis

      has not been clinically affirmed. Awe of the unknown and the fact that the

      declarant really has perceived the event may, though there be lingering

      doubts, be some persuasive reason for admitting the dying declaration of a

      deceased person.(20)

      Baldly stated, then, the imminence of death and attendant circumstances, coupled with a western tradition of belief in an afterlife, is presumed to provide the appropriate incentives for the dying declarant to reliably tell the truth.

      However, religiosity of the declarant is not fundamentally necessary for an acceptance of a dying declaration into an adjudicatory matter. Necessity(21) alone can be the rationale for admitting these statements; this bottom line conception simply expresses the idea that the court should accept the evidence because otherwise it would lose the benefit of it. Evidence of equivalent value is simply unavailable.(22) The crux of the issue is:

      Where the test of cross-examination is impossible of application, by

      reason of the declarant's death or some other cause rendering him now

      unavailable as a witness on the stand, we are faced with the alternatives

      of receiving his statements without that test, or of leaving his

      knowledge altogether unutilized.(23)


To continue reading