# Is there really a "dying words" exception to the "no hearsay" rule in court? **URL:** \ **Category:** Factual Questions\ **Created:** [March 15, 2006, 1:02pm UTC](https://boards.straightdope.com/t/is-there-really-a-dying-words-exception-to-the-no-hearsay-rule-in-court/348440 "2006-03-15T13:02:42Z")\ **Posts on this page:** 7\ **Page:** 1
**Author:** ![Emilio\_Lizardo](https://avatars.discourse-cdn.com/v4/letter/e/898d66/32.png) [@Emilio\_Lizardo](https://boards.straightdope.com/u/Emilio_Lizardo)\ **Post date:** [March 15, 2006, 1:02pm UTC](https://boards.straightdope.com/t/is-there-really-a-dying-words-exception-to-the-no-hearsay-rule-in-court/348440/1 "2006-03-15T13:02:42Z")
In her essay “Six Seconds,” originaly published in _Meridian_ magazine, Paula Speck says: > [@Paula Speck](#): > > Even the law grants special status to last moments. Evidently codes recognize an exception to the hearsay rule for a “dying declaration.” I think she meant to say _evidentiary_ instead of _evidently_ but the question stands: is this really the case? ---
**Author:** ![chrisk](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@chrisk](https://boards.straightdope.com/u/chrisk)\ **Post date:** [March 15, 2006, 1:09pm UTC](https://boards.straightdope.com/t/is-there-really-a-dying-words-exception-to-the-no-hearsay-rule-in-court/348440/2 "2006-03-15T13:09:42Z")
Certainly [seems](http://faculty.ncwc.edu/toconnor/405/405lect11.htm) 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. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [March 15, 2006, 1:20pm UTC](https://boards.straightdope.com/t/is-there-really-a-dying-words-exception-to-the-no-hearsay-rule-in-court/348440/3 "2006-03-15T13:20:23Z")
chrisk cited a common law basis. The exception is also codified in the [federal rules of evidence](http://expertpages.com/federal/a8.htm): > [@Rule 804](#): > > Rule 804. Hearsay Exceptions; Declarant Unavailable > (a) Definition of unavailability. > > “Unavailability as a witness” includes situations in which the declarant– > > is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or > > persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or > > testifies to a lack of memory of the subject matter of the declarant’s statement; or > > **is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity** ; or > > is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means. bolding mine. AFAIK every state has a similar rule too. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [March 15, 2006, 3:40pm UTC](https://boards.straightdope.com/t/is-there-really-a-dying-words-exception-to-the-no-hearsay-rule-in-court/348440/4 "2006-03-15T15:40:55Z")
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 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 15, 2006, 3:44pm UTC](https://boards.straightdope.com/t/is-there-really-a-dying-words-exception-to-the-no-hearsay-rule-in-court/348440/5 "2006-03-15T15:44:32Z")
> [@Otto](#): > > chrisk cited a common law basis. The exception is also codified in the [federal rules of evidence](http://expertpages.com/federal/a8.htm): > > bolding mine. > > AFAIK every state has a similar rule too. **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. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [March 15, 2006, 5:57pm UTC](https://boards.straightdope.com/t/is-there-really-a-dying-words-exception-to-the-no-hearsay-rule-in-court/348440/6 "2006-03-15T17:57:19Z")
Oops. Where’s the cigar cutter? ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [March 15, 2006, 7:38pm UTC](https://boards.straightdope.com/t/is-there-really-a-dying-words-exception-to-the-no-hearsay-rule-in-court/348440/7 "2006-03-15T19:38:53Z")
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