Dying Declarations in U.S. Evidence Law

Introduction

A dying declaration is a hearsay exception that allows a statement from a person who believed death was imminent to be used in court when that person is unavailable to testify. In the United States, the Federal Rules of Evidence recognize this exception in homicide prosecutions and civil cases, with specific conditions that must be met. Because these statements often carry significant weight with juries, both admitting and challenging them requires careful attention to the rule’s text and case law.

This guide explains the rule, the elements courts look for, key cases, and practical steps for building (or opposing) admissibility in U.S. courts.

What You'll Learn

• How FRE 804(b)(2) defines a dying declaration
• The required elements: unavailability, belief of imminent death, and subject matter limits
• Where the exception applies (homicide prosecutions and civil cases)
• How courts evaluate timing, form, and credibility
• How Shepard v. United States and other cases shape the rule
• Practical steps to admit or exclude a dying declaration
• Key issues under the Confrontation Clause after Crawford

Core Concepts

The Rule at a Glance

Under Federal Rule of Evidence 804(b)(2), a dying declaration is admissible if:

• The declarant is unavailable under FRE 804(a).
• The statement was made while believing death was imminent.
• The statement concerns the cause or circumstances of what the declarant believed to be impending death.
• The case is a homicide prosecution or any civil case.

Notes on scope:

• The FRE do not require the declarant to have actually died, only that the declarant be unavailable at trial and held a belief of imminent death when speaking.
• Some states still follow a narrower common-law rule that limits dying declarations to homicide prosecutions and sometimes requires the declarant to have died. Always check local law in addition to the FRE when in state court.

Unavailability and the Belief of Imminent Death

Unavailability (FRE 804(a)) typically means the declarant cannot testify because of death, serious illness, infirmity, or another recognized reason (such as privilege or lack of memory). For dying declarations, death or severe medical incapacity is common, but the exact reason is less important than meeting 804(a).

Belief of imminent death is the heart of the exception. Courts look for evidence that the declarant had a settled expectation that death was near, not just fear or concern. Proof can include:

• The declarant’s own words (e.g., “I’m dying,” “I won’t make it”).
• The severity and nature of the injuries.
• Statements by medical professionals to the declarant about their condition.
• Requests for last rites or similar conduct.
• The timing between the statement and death (close timing can help, but is not required).

The declarant does not have to die immediately after the statement, and a short period of improvement does not necessarily defeat the belief if the record shows the belief persisted.

Subject Matter: Cause or Circumstances of Death

The statement has to concern the cause or circumstances of the expected death. Examples that fit:

• Identifying the attacker (“John shot me”).
• Describing the event (“I was stabbed during a robbery at the store”).
• Explaining relevant conditions (“I drank the liquid he handed me and felt burning”).

Statements that usually do not fit:

• Topics unrelated to the cause or circumstances (e.g., insurance, unrelated disputes).
• Speculation beyond the declarant’s perception.
• Narrative far removed from the event unless tied to the cause.

Courts often admit only the parts of a statement that fall within the rule and exclude the rest.

Form, Timing, and Corroboration

Form of the statement:

• Oral, written, recorded, or gestures can qualify if intended as an assertion.
• Body-worn camera footage, 911 calls, and hospital recordings can be useful, provided the belief and subject matter elements are shown.

Timing:

• The statement must be made while the belief of imminent death is present. The death need not occur right away, but long gaps without proof the belief continued can be a problem.

Corroboration:

• The rule does not require independent corroboration, but judges and juries weigh credibility heavily. Medical records, paramedic testimony, and contemporaneous recordings often make or break admission and weight.

Confrontation Clause Considerations

In criminal cases, the Sixth Amendment restricts the use of testimonial hearsay unless the defendant had a prior opportunity to cross-examine the declarant. After Crawford v. Washington, courts analyze whether a statement is testimonial by looking at its primary purpose.

• Many courts treat dying declarations as a historic exception that can be admitted even if testimonial, but the Supreme Court has not issued a definitive, across-the-board ruling.
• Statements to medical personnel or during ongoing emergencies are more likely to be deemed non-testimonial.
• When the statement is made to law enforcement primarily to build a case, expect a Confrontation Clause challenge and a careful primary-purpose analysis.

Key Examples or Case Studies

Shepard v. United States (1933)

• Facts: The victim allegedly said, “Dr. Shepard has poisoned me.” The government argued that this was a dying declaration.
• Holding: The Supreme Court excluded the statement. The record did not show a settled belief of imminent death at the time the statement was made.
• Takeaway: The declarant’s state of mind matters. Without clear evidence of a belief in impending death, the exception does not apply.

People v. Cavazos

• Facts: Shortly before dying from her injuries, the victim identified her attacker and acknowledged she was not going to survive.
• Ruling: The court admitted the statement as a dying declaration, finding the victim knew death was near when she spoke.
• Takeaway: A clear expression of impending death plus a statement about the cause satisfies the rule.

King v. Commonwealth

• Facts: A dying victim identified the assailant and briefly described the attack.
• Ruling: The statement was admitted, and it played a major role in the conviction.
• Takeaway: Identification of the perpetrator tied to the cause of death fits squarely within the exception.

R v. Perry (common-law example outside the U.S.)

• Facts: The victim identified Perry as the attacker shortly before death.
• Ruling: The court admitted the statement as a dying declaration based on the victim’s belief in imminent death.
• Takeaway: Common-law roots support the modern U.S. approach, but always apply U.S. rules and the Confrontation Clause in American courts.

Practice note: Case names and outcomes vary by jurisdiction. Always confirm local authority and current appellate guidance when you rely on these statements.

Practical Applications

For prosecutors

• Build the record on belief of imminent death:
  • Elicit the declarant’s exact words about their condition.
  • Use testimony from paramedics and medical staff about injury severity and prognosis conveyed to the declarant.
  • Document last rites or similar conduct that shows awareness of imminent death.
• Tie the statement to cause or circumstances:
  • Limit the proffer to who did it, what happened, where, and how, as described by the declarant.
• Show unavailability under FRE 804(a):
  • Death, severe medical incapacity, or another recognized ground.
• Anticipate Confrontation Clause arguments:
  • Highlight non-testimonial contexts (e.g., statements for medical care, ongoing emergency).
  • If testimonial, be ready to brief the historical exception and any controlling local precedent.
• Preserve the record:
  • Offer recordings, EMS run sheets, and hospital notes.
  • Be prepared to redact content that strays beyond the cause or circumstances.

For defense

• Move to exclude under FRE 104(a):
  • Argue there is no clear evidence the declarant believed death was imminent.
  • Challenge the subject matter as beyond the cause or circumstances.
  • Point out gaps in unavailability proof.
• Confrontation Clause:
  • If police elicited the statement with a primary purpose of building a case, argue it is testimonial and barred absent prior cross-examination.
• Reliability and scope:
  • Highlight intoxication, shock, sedation, or cognitive impairment.
  • Seek redaction of parts that are speculative or unrelated.
  • Request a limiting instruction to confine the jury’s use of the statement.

For civil litigators

• Use in wrongful death and other civil actions:
  • The FRE allow dying declarations in civil cases.
  • Line up medical testimony and contemporaneous documentation to support the declarant’s belief and the link to cause.

For first responders and medical staff

• Record exact words, not summaries.
• Note time, injuries, life signs, and any statements that show the patient’s belief about dying.
• If possible, audio or video record the exchange or ensure body-worn cameras are active.

For judges

• Hold a focused admissibility hearing:
  • Make findings on belief of imminent death, unavailability, and subject matter.
  • Address Confrontation Clause issues on the record.
  • Consider partial admission with redactions where appropriate.

Summary Checklist

• Is the declarant unavailable under FRE 804(a)?
• Did the declarant believe death was imminent when speaking?
• Does the statement concern the cause or circumstances of the expected death?
• Is the case a homicide prosecution or a civil case?
• Is there clear evidence supporting the belief (words, medical proof, timing)?
• Can you corroborate with recordings, EMS notes, or medical records?
• Does any part of the statement need redaction to stay within the rule?
• Are there Confrontation Clause concerns, and how will they be addressed?
• Have you prepared a concise record for the admissibility ruling?

Quick Reference