Dying Declarations and the Hypochondriac

I’ve been writing a good deal recently about Federal Rule of Evidence 804(b)(2), which 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.

A popular question that often comes up in my Evidence classes is what to do with the hypochondriac under Rule 804(b)(2). If a declarant suffers a relatively minor injury, honestly but unreasonably believes that he is going to die, and makes a statement, does that statement qualify as a dying declaration if the declarant is “unavailable” at trial? I think that the answer is “yes.” For support, let’s look at Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010).

I actually wrote about Satterwhite a a few years ago when it was decided, and I use it as a hypothetical in my Evidence class:

Hypo 2: Tanisha Naar found her boyfriend,Joyner, lying on her bathroom floor, covered in blood. She went over to Joynerand knelt down beside him as he gasped for breath. Joyner faded in and out ofconsciousness. Naar called 911. The 911 operator asked Naar what happened.While still on the phone, Naar asked Joyner “who did it?” Breathing heavily,Joyner replied, “Darin Satterwhite did it.” Paramedics arrived soon thereafterand were able to stabilize Joyner, who lived for another six weeks beforepassing away. Satterwhite is now on trial for murder. He claims that Joyner’sstatement is inadmissible as a dying declaration because Joyner’s death was notimminent when he made the statement. How should the court rule? See Satterwhite v. Commonwealth, 2010 WL2899044 (Va.App. 2010).

I use this hypothetical to demonstrate that what matters for purposes of the dying declaration exception is whether the speaker thinks that he is going to die, regardless of whether he actually is about to die. Moreover, as the court notes, this is a subjective rather than an objective inquiry:

FN5. Nor is it dispositive that others, including medical personnel, discount the likelihood of death. Hall v. Commonwealth, 12 Va.App. 198, 204, 403 S.E.2d 362, 366 (1991) (finding unpersuasive defendant’s argument that “emergency room personnel” thought the declarant’s “wound was minor”). “When considering the admissibility of dying declarations, the necessary element is a subjective one relating solely to the declarant’s expectations.” Id.

As the court held in Hall, “Here, we find that the trial court did not err in finding that the evidence demonstrated West’s sure belief in his impending death; the statements to the contrary made by others do not require a different result.”

-CM