The Key Difference Between the Federal and Illinois Dying Declaration Exceptions
Similar to its federal counterpart, Illinois Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay
In a prosecution for homicide, [for] 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.
But there’s a key difference between the federal and state rules.
In People v. Harris, 2020 WL 7488678 (Ill.App.5th 2020), Marquad Harris was charged with five counts of first degree murder related to the shooting death of Christopher Nelson. Officer Kenneth Blackburn responded to the scene of the shooting, and his body cam picked up the following conversation between Nelson and Blackburn, which was admitted at trial:
OFFICER BLACKBURN: Keep that arm right here.VICTIM: I’m gonna die.OFFICER BLACKBURN: No, you’re not buddy, just keep breathing for me. Ok?Who shot you?VICTIM: Marquad Harris.OFFICER BLACKBURN: Marquad Harris?VICTIM: Aimee Harris’s son.OFFICER BLACKBURN: Where’d he go?VICTIM: He took off runnin’ [sic].OFFICER BLACKBURN: What’d he shoot you with?VICTIM: I don’t know.OFFICER BLACKBURN: Was it a handgun?VICTIM: Yeah.OFFICER BLACKBURN: Just keep breathing for me ok? Keep talking to me too, alright?”
After he was convicted, Harris appealed, claiming, inter alia, that Nelson’s statements were improperly admitted under Illinois Rule of Evidence 804(b)(2). The appellate court disagreed, finding that
To admit a statement as a dying declaration, the proponent must show, beyond a reasonable doubt, that (1) the declaration pertained to the cause or circumstances of the homicide, (2) the declarant believed death was imminent, and (3) the declarant was mentally capable of giving an accurate statement regarding the cause or circumstances of the homicide. People v. Graham, 392 Ill. App. 3d 1001, 1006 (2009).
Concluding that these elements were proved beyond a reasonable doubt, the court found no error.
What’s weird about the Illinois rule is that these elements need to be proven beyond a reasonable doubt. Under the federal rules and the rules of most (all?) states, the elements only need to be proven by a preponderance of the evidence.
When I was research the common law of evidence to advise the Illinois Supreme Court on the adoption of codified rules of evidence, I came across a line of Illinois cases finding that dying declarations need to be proven beyond a reasonable doubt. See, e.g., People v. Tilley, 406 Ill. 398, 403-04, 94 N.E.2d 328 (1950); People v. White, 251 Ill. 67, 75, 95 N.E. 1036 (1911). My advice was dispense with this common law and use the preponderance of the evidence test, but, probably out of an abundance of caution, the appellate courts in both Graham and now Harris have both applied the common law beyond a reasonable doubt test.
-CM