Hastings Constitutional Law Quarterly


Peter Nicolas


In Crawford v. Washington and its progeny, the U.S. Supreme Court retheorized 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 six of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This Article builds on the dictum set forth in footnote six of Crawford, the meaning of which the lower courts are just beginning to explore. Relying on historical evidence, this Article first 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 next demonstrates that states have state constitutional definitions of "dying declarations" that may differ in important respects from the federal constitutional definition of "dying declarations." This Article then shows that the various definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and state constitutional definitions of that phrase. This Article thus concludes that 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, despite the existence of a dying declaration exception to those constitutional provisions.