Should the Residual Hearsay Exception Apply to Narrow Misses Under the Dying Declaration Hearsay Exception?

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Usually, it is the prosecution using this “dying declaration” exception to introduce statements implicating a defendant (e.g., dying victim saying, “Defendant shot me”). United States v. Berrios, 2023 WL 4745951 (D.V.I. 2023), is the rare example of a defendant trying to use the “dying declaration” exception, and it makes me wonder about using another exception if such an attempt fails.

In Berrios, Reinaldo Berrios, Angel Rodriguez, and other co-defendants were charged with the murder of Officer Cuthbert Chapman. The court’s discussion of the “dying declarations” issue is brief. It noted that

Berrios’ first and second grounds for relief are based on a statement that Officer Chapman allegedly made while in the hospital, after being shot and before passing away, to the effect that “[Shandel] Hernandez was the cause of his injuries.”…Trial counsel for Angel Rodriguez, one of Berrios’ codefendants, sought to have this statement admitted into evidence, arguing that the statement was admissible under Rule 804(b)(2) of the Federal Rules of Evidence, which provides for an exception to the rule against hearsay where, “[i]n a prosecution for homicide…a [party offers a] statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances[.]” Fed. R. Evid. 804(b)(2). A hearing on the matter was held outside the presence of the jury, during which Rodriguez’s counsel called a witness to testify as to Officer Chapman’s physical condition and mental state while in the hospital….Berrios’ attorney also questioned the witness….After hearing this testimony and oral argument, the trial court found that there was not enough evidence that Officer Chapman believed that his death was imminent at the time he made the statement….Accordingly, the trial court concluded that Rule 804(b)(2) did not justify introduction of Officer Chapman’s statement and excluded it….

Insofar as Berrios argues that his trial counsel provided ineffective assistance in failing to attempt to locate additional witnesses to testify as to any statement Officer Chapman made while hospitalized, his argument is without merit. Because the trial court ruled that the statement was inadmissible hearsay because there was insufficient evidence that Officer Chapman had the mental state necessary to trigger an exception to the hearsay rule, it would have been futile for counsel to attempt to locate any additional witnesses to testify to the statement (emphasis added).

I don’t have enough information to decide whether the ruling excluding this statement was correct or incorrect. But this case does make me wonder whether defense counsel could use the residual hearsay exception in a future case like this one. Federal Rule of Evidence 807(a) provides an exception to the rule against hearsay as follows:

(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:

(1) the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and

(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

Subsection (2) seems like the easier one to prove, depending on the circumstances of the case. For example, if the officer was shot in the chest at relatively close range, his statement identifying the person who shot him would pretty clearly be more probative than any other evidence that the person named was the person who shot him. Second, under Subsection (1), courts have recognized that statements made while a person has death looming over them, even if they don’t believe their death to be imminent, are made with a reduced incentive to conceal information. See Fossyl v. Milligan, 317 Fed.Appx. 467, 477 (6th Cir. 2009). Therefore, in a given case, there could be a good argument for applying the residual exception.

-CM