APril, 1937 A RECONSIDERATION OF THE HEARSAY RULE AND ADMISSIONS* JOHN S. STRAHORN, JR.t Dying declarations The dying declarations of the victim, if made in fear of death and con- cerning the circumstances of the assault, may be offered in a criminal homi- cide case. They may be used either for or against the defendant, for nar- rative purposes, and to prove the truth of their content. The same "neces- sity" underlies this and the following hearsay rule exception, i. e., the un- availability of the declarant himself as a witness and an extraordinary need for having the advantage of his testimonial knowledge lest injustice be done. It is for this exception that the "circumstantial guarantee" can most easily be rationalized in terms of a positive stimulus to trustworthiness equivalent to the conditioning devices, although, to be sure, a complete justification for the exception can also be worked out on the basis of intrinsic superiority. The expectation of death, the imminence of divine judgment on one's con- duct, the gravity of the situation, all do create a situation working a posi- tive stimulus to trustworthiness were it ever desirable to look for one in the hearsay exception situations. But the dying declaration also has a peculiar intrinsic superiority as testimony in its own right. It is highly probable that the victim did perceive that which he narrates. The typical conduct of the assailant thus narrated is of such simple outline that mistakes in perception of the normal sort are less than usually likely. Recollection will usually be but for a brief interval, never more than one year and one day.3 3 Despite the lapse of time, the vividness of the experience will make it one not likely to be easily forgotten. Narration is capable of being made in simple and unmistakeable terms, in view of the type of event to be narrated. Motive to falsify is seen to be absent by the factors mentioned above as furnishing the alternative positive stimulus to trustworthiness. Further, the dying declaration is intrinsically superior with reference to the danger of error in its being reproduced in the courtroom. The statements and conduct of a dying man are likely to be * The first installment of this article, containing footnotes I to 32, appeared in the March issue of the REviEw. (1937) 85 U. oF PA. L. REv. 484. t A. B., 1922, St. John's College; LL. B., 1925, Washington and Lee University; S. J. D., 1926, Harvard University; J. S.D., 1931, Yale University; Professor of Law, University of Maryland School of Law; author of The Effect of Impossibility on Criminal Attempts (193o) 78 U. OF PA. L. REv. 962; Criminology and the Law of Guilt (1936) 84 U. oF PA. L. REv. 491, 6oo, and other articles in legal periodicals. 33. Because of the rule of criminal law that a conviction of criminal homicide may be had only if the victim dies within one year and one day of the infliction of the fatal wound. (564) THE HEARSAY RULE AND ADMISSIONS well attended to and thus well perceived. The vivid nature of their utter- ance makes for intent to remember and probable memorandum to aid recol- lection. Narration is hardly a problem inasmuch as, again, it is a matter of the quotation of small groups of words, with no range of choice for the wit- ness in describing his experience. It seems to the writer that the rule restricting the use of dying declara- tions to criminal homicide cases concerning the death of the victim, with one exception, tends to prove that the true rationale of the exception is its intrin- sic superiority and not a matter of its having a positive stimulus to trust- worthiness. Were the superiority of the dying declaration due to the posi- tive effect of fear of death as a stimulus to trustworthiness it would be appropriate to use dying declarations, actually made in such fear, in any case, civil or criminal, and about any subject matter. There would be present a "necessity" found in the death of the narrator and a circumstantial guarantee found in his fear of death when he spoke. But the rule limits them to criminal homicide cases brought because of the death. This rule recognizes that the superiority of the dying declaration exists only where it is as to a certain type of fact, viz., a fatal assault on the victim, which is something peculiarly likely to be well perceived, briefly and accurately re- membered, and simply narrated, without motive to falsify. The law does not recognize any greater trustworthiness of dying declarations as to the nor- mal run of facts for which there is likely to be the normal chance of erro- neous perception, long time or casual recollection, and language trouble in the narration. Thus it must be argued that the important factor in the dying declaration, as the law works it out, is not the positive stimulus of the fear of death,3 4 but rather the intrinsic superiority of the specific type of dying declaration which the rule permits. To be sure, the law even rejects the use of dying declarations in one class of cases, civil suits for wrongful death, where there is present the same intrinsic superiority. But is not this to be explained by the historical acci- dent of the fact that at the time the rule was crystallizing, before the enact- ment of Lord Campbell's Act, 5 there were no civil suits for wrongful death? Did not the framers of the rule merely visualize what was then the only possible situation in which the intrinsic superiority of the dying declaration could be availed of? On such a basis the writer is prone to feel that a much cited minority case,36 departing from the strict common law limitation and admitting dying declarations in all cases, civil or criminal, wrongful death or otherwise, is 34. Although, to be sure, the rule as it is worded requires that the declarant actually fear death at the time he speaks. 35. 9 & io VIcr. c. 93 (1846). 36. Thurston v. Fritz, 9r Kans. 468, 138 Pac. 625 (1914). UNIVERSITY OF PENNSYLVANIA LAW REVIEW wrong and should not be followed. He feels that immediate reform of the dying declaration rule should be limited to extending it to civil actions for wrongful death, but that, short of adopting the broad departure of the Mas- sachusetts Hearsay Statute 37 for all statements by deceased persons, there is no justification for permitting dying declarations as to all and sundry facts. To do this would depart from the true spirit of the common law rule for dying declarations, which is to admit only those which happen to possess an unusual intrinsic superiority following from the nature of the typical facts included therein. The common law rule itself recognizes this principle of intrinsic supe- riority in its own limitation of dying declarations to the "res gestae" of the killing. Thus the rule is to restrict their content to the very circumstances of the killing, likely to be well perceived, remembered, and narrated, and not to permit them, even in criminal homicide cases, to narrate other rele- vant facts antedating the assault. For these latter facts there is normal likelihood of defective perception, loss of memory, and inept choice of words in the narration. Declarationsagainst interest Statements made by a person now unavailable as a witness which are damaging to his own pecuniary or proprietary interests may be offered as narration to prove the truth of their content. The necessity is obvious from the statement of the rule and is the same as for dying declarations. No pos- sible positive stimulus to trustworthiness can be discerned to supply the cir- cumstantial guarantee, which must, therefore, be rationalized in terms of the intrinsic superiority of the type of utterance which is permitted by the ex- ception. This intrinsic superiority would also seem obvious. There is hardly a happier situation for accurate perception of the subject of a narration than that held by the speaker concerning his own money or property affairs. While time may have elapsed between the fact and the narration about it, yet the same consideration as for perception suggests that one will vividly remember any of his own money or property affairs about which he essays currently to speak. The nature of the two topics is such as to indicate little possibility of inept phraseology leading to inaccurate acquisition of meaning by the fact finder. Money has either been paid or it has not, property has either been sold or it has not. For such topics there is little chance of that awkward choice of wording which causes untrustworthiness at the narra- tion stage. The rule that the statement must be against the speaker's interest restricts the exception to situations where the usual motive to falsify is likely 37. 2 MASS. GEN. LAWS 0932) C. 233, §§ 65, 65A. THE HEARSAY RULE AND ADMISSIONS to be totally absent. One does not consciously make false unfavorable state- ments. The limitation of declarations against interest to money and property affairs and the rejection of declarations against penal interest, i. e., those admitting guilt of a crime, is usually considered irrational and unjust. It is, no doubt, a historical accident.38 Certainly one's having committed a crime is a matter as likely to have been well perceived, accurately remembered, and simply narrated as the details of one's money or property affairs. But per- haps there is more motive to falsify, particularly in the so-called "deathbed confessions" whereby one, actually innocent, may be able to do a good turn for a guilty friend by making a false exculpatory statement.