Dying Declaration (FRE 804b2)
What is the Dying Declaration (FRE 804b2)?
In a homicide prosecution or any civil action, a statement made by a declarant who believes their death is imminent, concerning the cause or circumstances of their impending death, is admissible. The declarant must be unavailable.
Definition
Federal Rule of Evidence 804(b)(2) codifies the ancient hearsay exception for dying declarations — statements made by a declarant who believes their death is imminent, concerning the cause or circumstances of what they believe to be their impending death. Unlike the FRE 803 exceptions, this exception requires that the declarant be unavailable as a witness, though the declarant need not actually die. If the declarant survives but is unavailable for another reason (such as being unable to testify due to physical condition), the exception may still apply.
The exception rests on the deeply rooted belief, described by the Supreme Court as 'the settled expectation of almost certain death,' that a person who sincerely believes they are about to die would not meet their maker with a lie on their lips. While this psychological assumption has been questioned by modern commentators, the exception has an extensive historical pedigree and remains firmly embedded in American evidence law.
The exception has notable limitations. In federal court, it applies only in homicide prosecutions and civil cases — it does not apply in other criminal cases such as assault or attempted murder, even if the statement would be equally reliable. The declarant must have a subjective belief in imminent death; the statement need not identify the killer by name but must concern the cause or circumstances of the believed impending death. Statements about unrelated matters or about events far removed from the death do not qualify. The declarant's state of mind at the time of the statement is critical — a statement made when the declarant has hope of recovery does not qualify, even if the declarant later dies.
Key Elements
- 1The declarant is unavailable as a witness (FRE 804(a))
- 2The declarant believed their death was imminent at the time of the statement
- 3The statement concerns the cause or circumstances of the declarant's believed impending death
- 4The case is a homicide prosecution or a civil action (in federal court)
- 5The declarant had personal knowledge of the facts described
Landmark Cases
Mattox v. United States
146 U.S. 140 (1892)
Recognized the dying declaration exception as a longstanding exception to both the hearsay rule and the Confrontation Clause, based on necessity and the guarantee of trustworthiness inherent in belief of impending death.
Shepard v. United States
290 U.S. 96 (1933)
Held that the declarant must have had a settled hopeless expectation of death — mere serious illness is insufficient if the declarant retains hope of recovery.
Giles v. California
554 U.S. 353 (2008)
In the Confrontation Clause context, the Court noted that dying declarations are a historically recognized exception that may survive Crawford's testimonial hearsay framework.
State v. Satterfield
457 S.E.2d 440 (W. Va. 1995)
Discussed the foundational requirement of demonstrating the declarant's subjective belief in imminent death through circumstantial evidence.
Exam Tips
- In federal court, the dying declaration exception is limited to homicide and civil cases — do not apply it in assault, robbery, or other criminal cases on exams.
- Focus on the declarant's subjective belief at the time of the statement — did they believe death was imminent? Evidence of this can include the severity of injuries, statements about dying, and medical testimony.
- The declarant need not actually die — the exception can apply if the declarant is unavailable for other reasons (e.g., comatose), as long as they believed death was imminent when making the statement.
- After Crawford, note that the Supreme Court in Giles suggested dying declarations may be a historical exception to Confrontation Clause requirements.
Common Mistakes to Avoid
- Assuming the declarant must actually die — the declarant must be unavailable, but unavailability can result from causes other than death.
- Applying the exception in non-homicide criminal cases in federal court — FRE 804(b)(2) is limited to homicide prosecutions and civil cases (though many state rules are broader).
- Failing to establish the declarant's subjective belief in imminent death — the fact that the declarant was seriously injured is not enough; they must have believed they were about to die.
Memory Aid
Dying declarations require 'the shadow of death': the declarant must believe death is at the door, and the statement must be about what brought death to the door.