RELIABILITY OF DYING DECLARATION HEARSAY EVIDENCE Timothy T. Lau* INTRODUCTION Rule 802 of the Federal Rules of Evidence, which prohibits the admission of 1 hearsay statements into evidence, reflects the Anglo-American tradition of favor­ 2 ing 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 Commit­ tee”) 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: hear­ say 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: testi­ mony 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 3 [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 * The author is a member of the Research Division of the Federal Judicial Center. The views expressed in this article are of the author alone and do not represent the views of the Federal Judicial Center or the Advisory Committee on the Federal Rules of Evidence of the Judicial Conference of the United States. The author thanks Daniel Capra of Fordham Law School, George Fisher of Stanford Law School, and Edward Imwinkelried of UC Davis School of Law for their comments. © 2018, Timothy T. Lau. 1. FED.R.EVID. 802. “Hearsay” is defined as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Id. R. 801. 2. 2 MCCORMICK ON EVIDENCE § 244 (7th ed. 2013). 3. FED.R.EVID. 804(b) advisory committee’s note. 373 374 AMERICAN CRIMINAL LAW REVIEW [Vol. 55:373 exceptions, and the Advisory Committee’s notes on the rule, Posner argues that the rule is “too complex” and “archaic.”4 Regarding the rule’s exceptions, Posner has also reasoned that they “seem to [him] on the whole sound, but with three exceptions.”5 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.”6 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.7 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.”8 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.”9 Two earlier studies (the “PSI study”10 and the “EU study”11) 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.12 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 tradition­ 13 ally referred to as the dying declaration (“DD”). DD is defined as follows: 4. United States v. Boyce, 742 F.3d 792, 802 (7th Cir. 2014) (Posner, J., concurring). 5. Richard A. Posner, On Hearsay,84FORDHAM L. REV. 1465, 1469 (2016). 6. Boyce, 742 F.3d at 801–02 (Posner, J., concurring). 7. Posner, supra note 5, at 1471. 8. FED.R.EVID. 803(1) 9. Id. R. 803(2). 10. Timothy T. Lau, Reliability of Present Sense Impression Hearsay Evidence,52GONZ.L.REV. 175 (2017) [hereinafter Lau, PSI Study]. 11. Timothy T. Lau, Reliability of Excited Utterance Hearsay Evidence,87MISS. L.J. (forthcoming 2018) (on file with author) [hereinafter Lau, EU Study]. 12. The two studies found that the Advisory Committee’s justifications for the exceptions, that the “substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation” and that “circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication,” are generally, though not conclusively, supported by the empirical research literature. FED.R.EVID. 803 advisory committee’s note; Lau, PSI Study, supra note 10; Lau, EU Study, supra note 11. 13. FED.R.EVID. 804(b)(2). 2018] RELIABILITY OF DYING DECLARATION HEARSAY EVIDENCE 375 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.14 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.15 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 16 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, 17 For they breathe truth that breathe their words in pain. Within the context of Anglo-American evidence law, the DD hearsay exception 18 derives from the medieval maxim, nemo moriturus praesumitur mentiri. In Rex 14. Id. 15. CONFUCIUS,THE ANALECTS, bk. 8, ch. 4. Zhu Xi (朱熹), the influential Confucian scholar, provides the explanation for these lines: 鳥畏死，故鳴哀。人窮反本，故言善。 Birds fear death, hence their dying calls are mournful. Humans return to their fundamental nature of goodness at their limits, hence their dying words are good. ZHU XI,ANNOTATIONS OF THE ANALECTS, bk. 4. All translations are provided by the author. 16. WILLIAM SHAKESPEARE,KING JOHN, act 5, sc. 4, at 191–93 (Barbara A. Mowat & Paul Werstein eds., Folger Shakespeare Library n.d.) (1623). 17. WILLIAM SHAKESPEARE,RICHARD II, act 2, sc. 1, at 57 (Barbara A. Mowat & Paul Werstein eds., Folger Shakespeare Library n.d.) (1597). 18. No one about to die is presumed to lie. 376 AMERICAN CRIMINAL LAW REVIEW [Vol. 55:373 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 19 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 20 falsehood of her assertions. The Advisory Committee rejected this explanation for the DD hearsay excep­ tion, 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 21 powerful psychological pressures are present. Few evidence scholars are convinced even by this modernized, cautious 22 justification provided by the Advisory Committee. As Professor Aviva Orenstein 23 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 24 Orenstein try to justify the rule using scientific literature.