Rule 802 of the Federal Rules of Evidence, which prohibits the admission of\u00a0hearsay statements into evidence, reflects the Anglo-American tradition of favoring\u00a0cross-examination for discerning truth in litigation. But because hearsay can\u00a0be valuable and sometimes necessary evidence, Rules 803 and 804 exempt\u00a0twenty-eight types of hearsay statements from the ambit of the general prohibition\u00a0against admissibility.<\/p>\n
The exceptions are generally justified on the ground that there is something\u00a0in the background circumstances where the excepted statements are made that\u00a0make these statements reliable. Within these excepted statements, some are\u00a0considered less reliable than others and thus require different treatment. The\u00a0Advisory Committee on the Federal Rules of Evidence (the \u201cAdvisory Committee\u201d)\u00a0provides the following explanation in its notes to Rules 804:<\/p>\n
Rule 803 . . . is based upon the assumption that a hearsay statement falling\u00a0within one of its exceptions possesses qualities which justify the conclusion\u00a0that whether the declarant is available or unavailable is not a relevant factor in\u00a0determining admissibility. [Rule 804] proceeds upon a different theory: hearsay\u00a0which admittedly is not equal in quality to testimony of the declarant on the\u00a0stand may nevertheless be admitted if the declarant is unavailable and if his\u00a0statement meets a specified standard. The rule expresses preferences: testimony\u00a0given on the stand in person is preferred over hearsay, and hearsay, if of\u00a0the specified quality, is preferred over complete loss of the evidence of the\u00a0declarant. The exceptions evolved at common law with respect to declarations\u00a0of unavailable declarants furnish the basis for the exceptions enumerated in\u00a0[Rule 804].<\/p><\/blockquote>\n
Judge Richard Posner has recently criticized the structure of the hearsay rule.\u00a0Pointing to the general prohibition against admitting hearsay evidence, the many\u00a0exceptions, and the Advisory Committee\u2019s notes on the rule, Posner argues that the\u00a0rule is \u201ctoo complex\u201d and \u201carchaic.\u201d Regarding the rule\u2019s exceptions, Posner has\u00a0also reasoned that they \u201cseem to [him] on the whole sound, but with three\u00a0exceptions.\u201d In 2014, in United States v. Boyce<\/em>, he wrote a concurring opinion in\u00a0which he charged that Rules 803(1) and (2) \u201cdon\u2019t even have support in folk\u00a0psychology\u201d and \u201crest[] on no firmer ground than judicial habit, in turn reflecting\u00a0judicial incuriosity and reluctance to reconsider ancient dogmas.\u201d In 2016, he\u00a0followed up on his concurring opinion in Boyce<\/em> with an article which not only\u00a0reiterates his attacks against Rules 803(1) and (2) but also criticizes Rule 804(b)(2)\u00a0as being \u201ca fossil\u201d like the other two hearsay exceptions.<\/p>\n
Rule 803(1) (the \u201cPSI hearsay exception\u201d) is concerned with the present sense\u00a0impression (\u201cPSI\u201d), \u201c[a] statement describing or explaining an event or condition,\u00a0made while or immediately after the declarant perceived it.\u201d Rule 803(2) (the \u201cEU\u00a0hearsay exception\u201d) is concerned with the excited utterance (\u201cEU\u201d), \u201c[a] statement\u00a0relating to a startling event or condition, made while the declarant was under the\u00a0stress of excitement that it caused.\u201d Two earlier studies (the \u201cPSI study\u201d10 and the\u00a0\u201cEU study\u201d) reviewing the literature on deception and perception have shown\u00a0that, contrary to Judge Posner\u2019s assertion, there is reason to think that PSI and EU\u00a0hearsay evidence may be reliable and that both Rules 803(1) and (2) may be worth\u00a0retaining.<\/p>\n
This paper completes the trilogy with an examination of the scientific support\u00a0for and against Rule 804(b)(2). Rule 804(b)(2) (the \u201cDD hearsay exception\u201d) is\u00a0concerned with the \u201cstatement under the belief of imminent death,\u201d more traditionally\u00a0referred to as the dying declaration (\u201cDD\u201d). DD is defined as follows:<\/p>\n
In a prosecution for homicide or in a civil case, a statement that the declarant,\u00a0while believing the declarant\u2019s death to be imminent, made about its cause or\u00a0circumstances.<\/p><\/blockquote>\n
The motivating principle of the DD hearsay explanation is the ancient and\u00a0universally held notion that dying people do not lie. The Analects<\/em> of Confucius,\u00a0dating from almost 2,000 years ago, contains the following lines:<\/p>\n
\u9ce5\u4e4b\u5c07\u6b7b\uff0c\u5176\u9cf4\u4e5f\u54c0\uff1b
\n\u4eba\u4e4b\u5c07\u6b7b\uff0c\u5176\u8a00\u4e5f\u5584\u3002
\nThe calls of a dying bird are mournful;<\/em>
\nThe words of a dying man are good.<\/em><\/p><\/blockquote>\nShakespeare\u2019s writings, which obviously drew from a very different cultural\u00a0tradition, also reflect the idea. In King John<\/em>, the dying Count Melun explains why\u00a0his dying words ought to be believed:<\/p>\n
Have I not hideous death within my view,
\nRetaining but a quantity of life,
\nWhich bleeds away, even as a form of wax
\nResolveth from his figure \u2019gainst the fire?
\nWhat in the world should make me now deceive,
\nSince I must lose the use of all deceit?
\nWhy should I then be false, since it is true
\nThat I must die here and live hence by truth?<\/p><\/blockquote>\nThe idea is similarly expressed in Richard II<\/em>:<\/p>\n
O, but they say the tongues of dying men
\nEnforce attention like deep harmony.
\nWhere words are scarce they are seldom spent in vain,
\nFor they breathe truth that breathe their words in pain.<\/p><\/blockquote>\nWithin the context of Anglo-American evidence law, the DD hearsay exception\u00a0derives from the medieval maxim, nemo moriturus praesumitur mentiri<\/em>. In Rex\u00a0\u00a0v. Woodcock<\/em>, an English case from 1789, the court provided the following articulation of the exception:<\/p>\n
Now the general principle on which this species of evidence is admitted is, that\u00a0they are declarations made in extremity, when the party is at the point of death,\u00a0and when every hope of this world is gone: when every motive to falsehood is\u00a0silenced, and the mind is induced by the most powerful considerations to speak\u00a0the truth; a situation so solemn, and so awful, is considered by the law as\u00a0creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.<\/p><\/blockquote>\n
The key to the reliability of DD hearsay evidence, according to this formulation,\u00a0is that:<\/p>\n
the deceased . . . apprehended that she was in such a state of mortality as would\u00a0inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions.<\/p><\/blockquote>\n
The Advisory Committee rejected this explanation for the DD hearsay exception,\u00a0with all of its Abrahamic undertones. Instead, it stated that:<\/p>\n
While the original religious justification for the exception may have lost its\u00a0conviction for some persons over the years, it can scarcely be doubted that\u00a0powerful psychological pressures are present.<\/p><\/blockquote>\n
Few evidence scholars are convinced even by this modernized, cautious\u00a0justification provided by the Advisory Committee. As Professor Aviva Orenstein\u00a0puts it, the DD hearsay exception is \u201cthe laughing stock of hearsay exceptions.\u201d<\/p>\n
But is DD hearsay evidence really that bad? Do people, at the point of death,\u00a0make unreliable statements? Not even modern defenders of the exception such as\u00a0Orenstein try to justify the rule using scientific literature.24 Rather, almost all\u00a0assume that there is no positive, empirical case to be made about the reliability of\u00a0DD hearsay evidence.<\/p>\n
This Article seeks to explore the reliability of DD hearsay evidence using the\u00a0interdisciplinary approach taken in the PSI and EU studies for their respective\u00a0exceptions. It begins with a definition of reliability and reviews a number of cases\u00a0where the DD hearsay exception is applied to set forth the background of the\u00a0discussion. Then, based on the reviewed cases, it proposes a classification scheme\u00a0for DD hearsay statements. It looks into the available research along the definition\u00a0of reliability, providing a modern justification for the exception. It ends with a\u00a0conclusion about the DD hearsay exception and some general reflections about the\u00a0PSI, EU, and DD hearsay exceptions.<\/p>\n