Key Concepts

  • A statement from an unavailable declarant is not barred by the hearsay rules if the statement was made when the declarant believed that death was imminent and the statement concerned the cause or circumstances of the declarant’s impending death.
  • The former statute on dying declarations also required that the declarant must have been in actual danger at the time of the statement, and must have died as a result, but those requirements are not included in the current rule.
  • If a statement is admissible as a dying declaration, it is not barred by the confrontation clause.

The Basic Rule

Rule 804(b)(2) – Statement Under Belief of Impending Death

A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

G.S. 8C-804(b)(2). A statement offered under this rule is commonly referred to as a “dying declaration.” If the declarant is unavailable as a witness pursuant to Rule 804(a), and the declarant’s statement satisfies the two criteria for admissibility discussed below, the statement is not barred by the hearsay rules.

Requirements for Admissibility

Belief of Imminent Death

The statement must have been made a time when the declarant believed that his or her death was “imminent,” which is usually demonstrated by the circumstances surrounding the declarant’s injuries or condition, along with the declarant’s statements indicating an awareness that he or she was likely to die. See G.S. 8C-804(b)(2). See, e.g., State v. Bodden, 190 N.C. App. 505 (2008) (declarant was bleeding from a gunshot wound, and shortly after calling 911 he told his mother he thought was going to die; declarant’s statements to officers at the scene and at the hospital were admissible as dying declarations); State v. Penley, 318 N.C. 30 (1986) (video recording of declarant’s identification of defendant in a photo lineup admissible as dying declaration when declarant died the next day and had made statements acknowledging his impending death); State v. Richardson, 308 N.C. 470 (1983) (where declarant had repeatedly expressed his belief that he would die, his statements to officers at the hospital a few hours before he died were admissible as a dying declaration).

The declarant’s belief that death was “imminent” does not mean that the declarant must have expected his or her death to occur “immediately,” but it does require more than a vague or conditional risk of death at some point in the future. See State v. Stevens, 295 N.C. 21 (1978) (“(i)t is not necessary that the declarant should be in the very act of dying; it is enough if he be under the apprehension of impending dissolution.”). Compare State v. Hamlette, 302 N.C. 490 (1981) (declarant’s statements made just before he underwent surgery for gunshot wounds were admissible as dying declarations, even though he ended up surviving for 12 more days after the surgery, because his wounds, surroundings, and other circumstances were such that a person could reasonably believe death was imminent at the time he made the statements) with State v. Sharpe, 344 N.C. 190 (1996) (where declarant said he would “kill himself before he would go to jail,” and actually did commit suicide 27 days later, there was insufficient evidence that declarant genuinely believed his death was imminent at the time he made the statements); see also State v. Artis, 325 N.C. 278 (1989) (declarant’s statement that she would be killed if certain people “ever caught up with her” was inadmissible hearsay even though declarant was, in fact, murdered five months later).

Concerning the Cause/Circumstance of Death

To be admissible under Rule 804(b)(2), the declarant’s statements also must concern the “cause or circumstances” of what the declarant believed to be his or her impending death. G.S. 8C-804(b)(2). Testimony satisfying this requirement may include, for example, identifying the assailant or other witnesses who were present, describing the manner of injury, or explaining when, where, and why the precipitating event happened. See, e.g., State v. Bodden, 190 N.C. App. 505 (2008) (declarant identified the person who shot him and told the officer that “he was shot outside in the parking lot”); State v. Calhoun, 189 N.C. App. 166 (2008) (responding officers found gunshot victim lying on the floor and victim identified the two shooters before dying); State v. Penley, 318 N.C. 30 (1986) (declarant identified defendant as assailant); State v. Stevens, 295 N.C. 21 (1978) (severely burned and dying victim explained that his roommate poured gas on him and set him on fire in retaliation for an argument over sex and money, and nodded his head to answer yes or no questions during a follow-up interview when he could no longer speak).

Actual Danger, Resulting in Death?

Some cases applying the dying declaration exception (primarily, though not exclusively, cases decided before the adoption of the Rules of Evidence in 1983) have also listed “actual danger of death” and “death occurred” as additional requirements for admissibility, even though neither of those elements are found in Rule 804(b)(2). See, e.g., State v. Bodden, 190 N.C. App. 505 (2008) (“The requirements for a dying declaration are: (1) at the time declarant made the statements, the declarant was in actual danger of death; (2) declarant had full apprehension of the danger; (3) death occurred; and (4) declarant, if living, would be a competent witness to testify to the matter.”); accord, State v. Richardson, 308 N.C. 470 (1983); State v. Hamlette, 302 N.C. 490 (1981).

A second line of cases (decided after the Rules of Evidence were adopted) have declined to require those additional elements, and adhered instead to a two-part admissibility test that more closely tracks the language of Rule 804(b)(2) (described in Section B above). See, e.g., State v. Sharpe, 344 N.C. 190 (1996) (“the dying declaration of an unavailable declarant is admissible only where (1) the statement appears trustworthy because it is made at a time when the declarant believes his death to be imminent, and (2) the statement concerns the cause or circumstances of his impending death”); accord, State v. Penley, 318 N.C. 30 (1986) (quoting Rule 804(b)(2), and not listing actual danger or death as a requirement).

In practice, there will rarely be a case in which a purported dying declaration was made by a now-unavailable declarant who was not in actual danger of death and did not subsequently die. However, if that situation were to arise, the cases in favor of allowing such a statement into evidence as a dying declaration under Rule 804(b)(2) likely represent the better legal argument, for two reasons.

Statute Superseded by Rule

First, Rule 804(b)(2) superseded the former version of G.S. 8-51.1 (“Dying Declarations”) for criminal cases. See G.S. 8C-804(b)(2), Official Commentary (“Upon adoption of Exception (2), G.S. 8-51.1 should be repealed.”).
Under the old statute, “the declarant must have died from the causes or circumstances on which he commented,” but this requirement was not included in the new evidentiary rule. See G.S. 8C-804(b)(2), Official Commentary. Instead, the rule requires only that the statement relate to what the declarant “believed to be” his imminent death, indicating that actual danger or death is no longer a requirement for admissibility. See G.S. 8C-804(b)(2) (emphasis added). The cases that continue to require “actual danger” or “resulting in death” are quoting those requirements from historical case precedent, but those older cases were based on a statute that no longer exists. See generally State v. Cousin, 291 N.C. 413 (1976) (providing text of former version of statute, and explaining requirements of admissibility under it).

Not Limited to Homicides

Second, unlike Federal Rule of Evidence 804(b)(2), “which limits admissibility of dying declarations in criminal cases to homicide prosecution,” North Carolina’s rule applies “in all types of criminal and civil actions and proceedings.” G.S. 8C-804(b)(2), Official Commentary. This distinction further indicates that the actual death of the declarant (i.e., a “homicide”) is no longer intended to be a requirement for admissibility.

Practice Pointer

It could happen
For example, imagine a victim who is kidnapped and led to believe that she will soon be killed. The victim writes a farewell note describing what occurred and who did this to her. Fortunately, law enforcement officers are already aware of the crime and are on the way to rescue her. Thus, she was never truly in grave danger, nor did she actually die. Unfortunately, the victim is too frightened and traumatized by the experience to testify at trial, rendering her unavailable as a witness per Rule 804(a). Under these facts, and applying the rule as stated in case like Sharpe and Penley, the declarant’s letter should be deemed admissible as a dying declaration under Rule 804(b)(2).

Crawford and Confrontation

Even if a declarant’s dying declaration is clearly testimonial in nature (e.g., declarant’s statement was made to a law enforcement officer with the intent of seeing the murderer prosecuted), North Carolina cases interpreting this rule both before and after Crawford v. Washington, 541 U.S. 36 (2004) have held that dying declarations are not barred by the Sixth Amendment’s confrontation clause. See, e.g., State v. Bodden, 190 N.C. App. 505 (2008) (“the confrontation clause allows an exception for testimonial dying declarations”); State v. Calhoun, 189 N.C. App. 166 (2008) (court concluded that “a dying declaration constituted a ‘special exception” to an accused's right to confront witnesses when the Sixth Amendment was adopted” and held that “dying declarations are not violative of the Sixth Amendment”); see also State v. Stevens, 295 N.C. 21 (1978) (“the constitutional guaranty of confrontation is not coextensive with the hearsay rule” and “the public necessity of preventing secret homicides from going unpunished requires the preservation of this uniquely valuable evidence notwithstanding the inability of the defendant to cross-examine his accuser”); State v. Penley, 318 N.C. 30 (1986) (concluding that defendant's argument that admission of a dying declaration violates the Sixth Amendment was without merit).

North Carolina cases upholding this historical exception to the confrontation requirements are supported by the fact that the Crawford decision itself noted that dying declarations could be an exception to the Sixth Amendment. See Crawford v. Washington, 541 U.S. 36, n.6 (2004) (“Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.”) (internal citations omitted); Ohio v. Clark, 576 U.S. 237 (2015) (J. Scalia and Ginsburg, concurring) (citing Crawford, and noting that the prosecution may overcome confrontation requirements when it is relying on “a long-established practice of introducing specific kinds of evidence, such as dying declarations […] for which cross-examination was not typically necessary”).

Portions of this entry were excerpted from Jessica Smith, “Criminal Evidence: Hearsay,” North Carolina Superior Court Judges’ Benchbook, October 2013.