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Dying Declarations

Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence

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Dying declarations have taken on increased importance since the Supreme Court indicated that even if testimonial, they may present a unique exception to its new confrontation jurisprudence. Starting with Crawford v. Washington in 2004, the Court has developed strict rules concerning the use of testimonial statements made by unavailable declarants. Generally, testimonial statements (those made with the expectation that they will be used to prosecute the accused) may be admitted only if they were previously subject to cross-examination. The only exceptions appear to be dying declarations and forfeiture by wrongdoing when the accused intentionally rendered the declarant unavailable. This Article argues that the dying declaration merits examination for two important reasons. First, its status as an exception to the Court's new confrontation rules seriously undermines the Court's dramatic new interpretation of the Confrontation Clause and demonstrates the internal contradictions of the Court's originalist approach. Second, the...

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The Talking Dead: 4 Observations About the Dying Declaration Exception Based on the Advisory Committee’s Notes

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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.

Working off of my post from yesterday about dying declarations being admissible for ("The defendant didn't do it") and against ("The defendant didn't do it"), I wanted to take a look at the Advisory Committee's Note to Rule 804.

In that Note, we first have the Committee in part justifying the former testimony exception by reference to the dying declaration exception:

Falknor concluded that, if a dying declaration untested by cross-examination is constitutionally admissible, former testimony tested by the cross-examination of one similarly situated does not offend against confrontation....The constitutional acceptability of dying declarations has often been conceded.

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