Peter Nicolas, "I'm Dying to Tell You What Happened": The Admissibility of Testimonial Dying Declarations Post-Crawford, 37 Hastings Const. L.Q. 487 (2010), https://digitalcommons.law.uw.edu/faculty-articles/292
"I'm Dying to Tell You What Happened": The Admissibility of Testimonial Dying Declarations Post-Crawford
Hastings Constitutional Law Quarterly
Confrontation Clause, dying declarations
This Article demonstrates the existence and delineates the scope of a federal constitutional definition of "dying declarations" that is distinct from the definitions set forth in the Federal Rules of Evidence and their state counterparts. This Article further demonstrates that states have state constitutional definitions of "dying declarations" (for purposes of interpreting state constitutional analogues to the Confrontation Clause of the Sixth Amendment) that may differ in important respects from the federal constitutional definition of "dying declarations."
This Article then shows that some of the definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and state constitutional definitions of that phrase. As a result, statements admitted against the accused in criminal cases pursuant to such exceptions may run afoul of the Confrontation Clause of the Sixth Amendment and its state analogues, even if there exists a dying declaration exception to the Confrontation Clause.