Dying Declarations

In general

• Although generally inadmissible, hearsay is admissible under the “dying declaration” exception . . . .

Wright v. State, 916 N.E.2d 269, 275 (Ind. Ct. App. 2009), trans. denied

See Wallace v. State, 836 N.E.2d 985, 991 (Ind. Ct. App. 2005), trans. denied(“Hearsay is also admissible under the dying declaration exception . . . .”)

See also Thompson v. State, 796 N.E.2d 834, 839 (Ind. Ct. App. 2003), reh’g denied, trans. denied(“[A] dying declaration is an exception to the hearsay rule . . . .”)

• [A] dying declaration, as used in criminal proceedings, normally comes from a victim who has suffered a fatal wound and subsequently utters a statement related to the cause of their injury.

Thompson v. State, 796 N.E.2d 834, 840 n. 1 (Ind. Ct. App. 2003), reh’g denied, trans. denied

• [W]e do not foreclose the possibility that a statement made by a death row inmate may properly be admitted as a dying declaration in a criminal proceeding . . . .

Thompson v. State, 796 N.E.2d 834, 840 n. 1 (Ind. Ct. App. 2003), reh’g denied, trans. denied

Text of the rule

• The following are not excluded by the hearsay rule if the declarant is unavailable as a witness[:] . . .

(2) Statement Under the Belief of Imminent Death. A statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

Evid. R. 804(b)(2)

Interpretations of the text: In general

• Rule 804(b)(2) changes previous Indiana law in two ways. First, because earlier Indiana law required that the declarant's death be the subject of the statement, the declarant had to be dead as condition of admissibility. Rule 804(b)(2) requires only that the declarant be unavailable as a witness under Rule 804(a), which recognizes many forms of unavailability short of death. Second, earlier Indiana law recognized the dying declaration exception only in criminal homicide cases, and not in civil cases, while Rule 804(b)(2) allows the exception to apply in all cases.

13 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 804.202 n. 3 (3d ed. 2015)

Interpretations of the text: Unavailability

• For information about the meaning of “unavailable” within the context of Indiana Evidence Rule 804, please review Unavailability.

Interpretations of the text: The declarant’s belief that the declarant’s death is imminent

• This statement must be made by a person who knew death was imminent and had abandoned all hope of recovery.

Wright v. State, 916 N.E.2d 269, 275 (Ind. Ct. App. 2009), trans. denied(citing Wallace v. State, 836 N.E.2d 985, 991 (Ind. Ct. App. 2005), trans. denied)

See Bishop v. State, 40 N.E.3d 935, 944 (Ind. Ct. App. 2015), trans. denied(quoting Wright v. State, 916 N.E.2d 269, 275 (Ind. Ct. App. 2009), trans. denied)(“It is true that, to be admissible as a dying declaration, the statement ‘must be made by a person who knew death was imminent and had abandoned all hope of recovery,’ . . . .”)

See also Thompson v. State, 796 N.E.2d 834, 839 (Ind. Ct. App. 2003), reh’g denied, trans. denied(citing Dean v. State, 432 N.E.2d 40, 45 (Ind. 1982), reh’g denied)(“[I]t is essential that the declarant's statement be made while believing that his death is imminent.”

• In order to determine if a declarant made statements with the belief that “death was imminent” while having “abandoned all hope of recovery,” the trial court may consider “‘the general statements, conduct, manner, symptoms, and condition of the declarant, which flow as the reasonable and natural results from the extent and character of his wound, or state of his illness.’”

Wright v. State, 916 N.E.2d 269, 275 (Ind. Ct. App. 2009), trans. denied(quoting Wallace v. State, 836 N.E.2d 985, 991 (Ind. Ct. App. 2005), trans. denied(quoting Beverly v. State, 801 N.E.2d 1254, 1260 (Ind. Ct. App. 2004), trans. denied))

Bishop v. State, 40 N.E.3d 935, 944 (Ind. Ct. App. 2015), trans. denied(quoting Wright v. State, 916 N.E.2d 269, 275 (Ind. Ct. App. 2009), trans. denied)(alteration in the original)

See Thompson v. State, 796 N.E.2d 834, 839 (Ind. Ct. App. 2003), reh’g denied, trans. denied(citations omitted)(“[T]he trial court may infer a belief of imminent death by considering the declarant's statement of belief of his impending death; the declarant's conduct and physical condition at the time the statement is made; the nature or gravity of the injury having been suffered by the declarant; or statements made by the declarant to a treating physician after being informed of imminent death.”)

• “Under the dying declaration exception, the fact that a victim ultimately dies from her injuries does not make her statement [automatically] admissible; rather, the victim must have known that death was imminent and abandoned all hope of recovery.”

Wallace v. State, 836 N.E.2d 985, 991 (Ind. Ct. App. 2005), trans. denied(quoting Beverly v. State, 801 N.E.2d 1254, 1259 (Ind. Ct. App. 2004), trans. denied)

Interpretations of the text: The cause of, or circumstances giving rise to, the fatal injury

• [I]t is also essential that the declarant's statements relate to the cause or circumstances giving rise to his fatal injury; it may not include what happened before or after the act.

Thompson v. State, 796 N.E.2d 834, 839 (Ind. Ct. App. 2003), reh’g denied, trans. denied(citing Montgomery v. State, 80 Ind. 338, 346 (Ind. 1881))

Interpretations of the text: The time between the dying declaration and the declarant’s death

• The time between the declarant's statement and death does not normally affect its admissibility.

Thompson v. State, 796 N.E.2d 834, 839 (Ind. Ct. App. 2003), reh’g denied, trans. denied(citing Jones v. State, 71 Ind. 66, 73-74 (1880))

Rationale

• The two reasons typically given for admitting such statements into evidence are: (1) to bring to justice murderers who otherwise might escape the penalty of the law because the victims of their crimes are not available to testify; and (2) the dying declaration is reliable because of the belief that a person about to die is less likely to fabricate the guilt of an innocent person than one who would stand to derive some benefit from his falsehood.

Beverly v. State, 801 N.E.2d 1254, 1259 (Ind. Ct. App. 2004), trans. denied(citing Ferdinand S. Tinio, Annotation, Sufficiency of Showing of Consciousness of Impending Death, by Circumstances Other Than Statements of Declarant, to Justify Admission of Dying Declaration, 53 A.L.R.3d 1196, 1201 (1973))

• Indiana case law and commentators to the Indiana Rules of Evidence make clear that the contemporary purpose for admitting dying declarations into evidence is based on the grounds of necessity (the declarant having died) and on the assumed guarantee that a person expecting imminent death, similar to a person testifying under oath, will tell the truth because of the powerful psychological forces brought to bear at the moment of death.

Thompson v. State, 796 N.E.2d 834, 839 (Ind. Ct. App. 2003), reh’g denied, trans. denied(citing Glen Weissenberger, Indiana Evidence 2001 Courtroom Manual 314 (2000))

See Bishop v. State, 40 N.E.3d 935, 944 (Ind. Ct. App. 2015), trans. denied(quoting Idaho v. Wright, 497 U.S. 805, 820 (1990))(“The admissibility of such a ‘dying declaration’ is based on ‘the belief that persons making such statements are highly unlikely to lie.’”)

Relationship to the right of confrontation

• In a footnote [to the landmark case of Crawford v. Washington], the Court acknowledged that a historical exception to the right of confrontation “involves dying declarations,” specifically noting that “[t]he existence of that exception as a general rule of criminal hearsay law cannot be disputed” and that “[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are.”

Bishop v. State, 40 N.E.3d 935, 945 (Ind. Ct. App. 2015), trans. denied(quoting Crawford v. Washington, 541 U.S. 36, 56 n. 6 (2004))

See Wright v. State, 916 N.E.2d 269, 275 (Ind. Ct. App. 2009), trans. denied(“[The defendant] concedes that the rule in Crawford has a well-recognized exception for dying declarations.”)

• The Court [in Giles v. California] noted that it had “previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted” and that “[t]he first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.”

Bishop v. State, 40 N.E.3d 935, 945 (Ind. Ct. App. 2015), trans. denied(quoting Giles v. California, 554 U.S. 353, 358 (2004))(footnote omitted)

• Today, we formally recognize that dying declarations as provided by Evid. R. 804(b)(2) are excepted from the right of confrontation provided by the Sixth Amendment.

Bishop v. State, 40 N.E.3d 935, 949 (Ind. Ct. App. 2015), trans. denied

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