Academic journal article Defense Counsel Journal

Dying Declarations in an Ever-Changing World: A Peek into the Implications of Expansion

Academic journal article Defense Counsel Journal

Dying Declarations in an Ever-Changing World: A Peek into the Implications of Expansion

Article excerpt

"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.

I. Historical Perspective

A. 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)

B. 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. …

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