Rule 802 of the Federal Rules of Evidence, which prohibits the admission of hearsay statements into evidence, reflects the Anglo-American tradition of favoring cross-examination for discerning truth in litigation. But because hearsay can be valuable and sometimes necessary evidence, Rules 803 and 804 exempt twenty-eight types of hearsay statements from the ambit of the general prohibition against admissibility.

The exceptions are generally justified on the ground that there is something in the background circumstances where the excepted statements are made that make these statements reliable. Within these excepted statements, some are considered less reliable than others and thus require different treatment. The Advisory Committee on the Federal Rules of Evidence (the “Advisory Committee”) provides the following explanation in its notes to Rules 804:

Rule 803 . . . is based upon the assumption that a hearsay statement falling within one of its exceptions possesses qualities which justify the conclusion that whether the declarant is available or unavailable is not a relevant factor in determining admissibility. [Rule 804] proceeds upon a different theory: hearsay which admittedly is not equal in quality to testimony of the declarant on the stand may nevertheless be admitted if the declarant is unavailable and if his statement meets a specified standard. The rule expresses preferences: testimony given on the stand in person is preferred over hearsay, and hearsay, if of the specified quality, is preferred over complete loss of the evidence of the declarant. The exceptions evolved at common law with respect to declarations of unavailable declarants furnish the basis for the exceptions enumerated in [Rule 804].

Judge Richard Posner has recently criticized the structure of the hearsay rule. Pointing to the general prohibition against admitting hearsay evidence, the many exceptions, and the Advisory Committee’s notes on the rule, Posner argues that the rule is “too complex” and “archaic.” Regarding the rule’s exceptions, Posner has also reasoned that they “seem to [him] on the whole sound, but with three exceptions.” In 2014, in United States v. Boyce, he wrote a concurring opinion in which he charged that Rules 803(1) and (2) “don’t even have support in folk psychology” and “rest[] on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.” In 2016, he followed up on his concurring opinion in Boyce with an article which not only reiterates his attacks against Rules 803(1) and (2) but also criticizes Rule 804(b)(2) as being “a fossil” like the other two hearsay exceptions.

Rule 803(1) (the “PSI hearsay exception”) is concerned with the present sense impression (“PSI”), “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” Rule 803(2) (the “EU hearsay exception”) is concerned with the excited utterance (“EU”), “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Two earlier studies (the “PSI study”10 and the “EU study”) reviewing the literature on deception and perception have shown that, contrary to Judge Posner’s assertion, there is reason to think that PSI and EU hearsay evidence may be reliable and that both Rules 803(1) and (2) may be worth retaining.

This paper completes the trilogy with an examination of the scientific support for and against Rule 804(b)(2). Rule 804(b)(2) (the “DD hearsay exception”) is concerned with the “statement under the belief of imminent death,” more traditionally referred to as the dying declaration (“DD”). DD is defined as follows:

In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

The motivating principle of the DD hearsay explanation is the ancient and universally held notion that dying people do not lie. The Analects of Confucius, dating from almost 2,000 years ago, contains the following lines:

鳥之將死，其鳴也哀；
人之將死，其言也善。
The calls of a dying bird are mournful;
The words of a dying man are good.

Shakespeare’s writings, which obviously drew from a very different cultural tradition, also reflect the idea. In King John, the dying Count Melun explains why his dying words ought to be believed:

Have I not hideous death within my view,
Retaining but a quantity of life,
Which bleeds away, even as a form of wax
Resolveth from his figure ’gainst the fire?
What in the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false, since it is true
That I must die here and live hence by truth?

The idea is similarly expressed in Richard II:

O, but they say the tongues of dying men
Enforce attention like deep harmony.
Where words are scarce they are seldom spent in vain,
For they breathe truth that breathe their words in pain.

Within the context of Anglo-American evidence law, the DD hearsay exception derives from the medieval maxim, nemo moriturus praesumitur mentiri. In Rex  v. Woodcock, an English case from 1789, the court provided the following articulation of the exception:

Now the 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 imposed by a positive oath administered in a Court of Justice.

The key to the reliability of DD hearsay evidence, according to this formulation, is that:

the deceased . . . apprehended that she was in such a state of mortality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions.

The Advisory Committee rejected this explanation for the DD hearsay exception, with all of its Abrahamic undertones. Instead, it stated that:

While the original religious justification for the exception may have lost its conviction for some persons over the years, it can scarcely be doubted that powerful psychological pressures are present.

Few evidence scholars are convinced even by this modernized, cautious justification provided by the Advisory Committee. As Professor Aviva Orenstein puts it, the DD hearsay exception is “the laughing stock of hearsay exceptions.”

But is DD hearsay evidence really that bad? Do people, at the point of death, make unreliable statements? Not even modern defenders of the exception such as Orenstein try to justify the rule using scientific literature.24 Rather, almost all assume that there is no positive, empirical case to be made about the reliability of DD hearsay evidence.

This Article seeks to explore the reliability of DD hearsay evidence using the interdisciplinary approach taken in the PSI and EU studies for their respective exceptions. It begins with a definition of reliability and reviews a number of cases where the DD hearsay exception is applied to set forth the background of the discussion. Then, based on the reviewed cases, it proposes a classification scheme for DD hearsay statements. It looks into the available research along the definition of reliability, providing a modern justification for the exception. It ends with a conclusion about the DD hearsay exception and some general reflections about the PSI, EU, and DD hearsay exceptions.

Keep Reading