In her essay “Six Seconds,” originaly published in Meridian magazine, Paula Speck says:
I think she meant to say evidentiary instead of evidently but the question stands: is this really the case?
Certainly seems to be the case. It’s not the only exception to the hearsay rules, though it might just make it as the most unusual. Doesn’t seem very far out of the scope of the law. Basically: (a) he’s dead, so he can’t come into court and say it himself, and (b) very few people make up lies on their deathbed.
© Hi opal.
chrisk cited a common law basis. The exception is also codified in the federal rules of evidence:
bolding mine.
AFAIK every state has a similar rule too.
That’s not the exception, Otto. That’s merely the definition of unavailability. If you look in 804(b), it lists the actual exceptions that allow hearsay testimony of a witness who is unavailable as defined in the bit you quoted. Just because a declarant is unavailable, that doesn’t mean his testimony his allowed in; it must still fit within one of the 804(b) exceptions.
Rule 804(b)(2) is the subparagraph that deals with dying declarations. It states: “In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.” (Emphasis mine)
Note the limitations – the dying declaration “It was Henry who shot me!” is fine, but “Before I go, I must tell you, it was me who shot Henry all those years ago!” is not admissable under this exception. Of course, it might be admissable under another exception. There are 31 exceptions on my quick browse through my copy of the Rules, and depending on how you count it could be more.
Hearsay is to my mind the most interesting topic of the Rules of Evidence, and certainly the most complex. As we’ve seen, Rule 804 lists exceptions that are only operable when the declarant is unabilable as defined therein. Rule 803 lists a bunch of exceptions which are active regardless of whether the declarant is available to testify or not. Rules 801, 806, and 807 have their own exceptions for other circumstances.
–Cliffy
Otto, I think you’re off the track a bit. Your cite involves the unavailability of a witness because he’s dead. In that circumstance, certain prior statements, such as previous testimony, the witness made while alive may be admitted.
The OP asks about the “dying declaration” a statement made while in credible fear of imminent death after fatal injury.
Oops. Where’s the cigar cutter?
Dogpile on Otto! Dogpile on Otto! 
One additional note: this is the federal rule; I also believe all the states have exceptions for dying declarations, but they might have different contours. For instance, the federal rule excepts declarations made in fear of imminent death, but if the dude gets better, it may still be admissable (depending on (un)availability of the declarant). I can imagine that some states might actually require that the guy did in fact croak for the statement to be admissable. Whereas other states might allow dying declarations on subjects other than the declarant’s opinion on what is leading to his death. In those states, the abovementioned “It was me who killed Henry” would be admissable even though Henry’s murder had nothing to do with the decedant’s mode of death.
N.B. I am not saying such variations do exist, just that they might in some jurisdictions.
–Cliffy