Peter Nicolas, "'I'm Dying to Tell You What Happened'": The Admissibility of Testimonial Dying Declarations Post-Crawford," available at http://ssrn.com/abstract=1434519
The abstract of the paper reads as follows:
In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are "testimonial" in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. My manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the Court likely will explicitly conclude that there exists a dying declaration exception to the Confrontation Clause. Next, I show that, in doing so, the Court will develop a federal constitutional definition of dying declarations that differs in important ways from the dying declaration as it has been codified in the federal rules of evidence and state counterparts. Then, relying on historical evidence, I attempt to delineate what the likely scope of the federal constitutional definition of dying declarations will be. Finally, I demonstrate that many versions of the dying declaration exception extant in the United States today may be deemed unconstitutional as applied in certain circumstances.
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The abstract of the paper reads as follows:
In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are "testimonial" in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. My manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the Court likely will explicitly conclude that there exists a dying declaration exception to the Confrontation Clause. Next, I show that, in doing so, the Court will develop a federal constitutional definition of dying declarations that differs in important ways from the dying declaration as it has been codified in the federal rules of evidence and state counterparts. Then, relying on historical evidence, I attempt to delineate what the likely scope of the federal constitutional definition of dying declarations will be. Finally, I demonstrate that many versions of the dying declaration exception extant in the United States today may be deemed unconstitutional as applied in certain circumstances.