Hearsay Exceptions: Former Testimony and Dying Declarations

Rule 804 contains five hearsay exceptions that apply when the declarant is unavailable. I addressed one of them—the residual exception—in a prior post. Another one of the five—statements of family history—rarely arises in the criminal law so I won’t spend any time on it. In this post I’ll tackle two of the Rule 804 exceptions: former testimony and dying declaration.

Former Testimony. Rule 804(b)(1) provides a hearsay exception for former testimony. Specifically, it creates an exception for “[t]estimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of same or another proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” N.C. Evid. R. 804(b)(1). When the evidence is offered by the State, case law adds the additional requirement that the defendant must have been present at the former proceeding and represented by counsel. See, e.g., State v. Rollins, __ N.C. App. __, 738 S.E.2d 440, 445 (2013).

In most cases, this exception raises no complicated issues. By way of example, courts have held the following types of prior testimony admissible under this rule:

• A witness’s testimony during a prior trial on the charges at issue. See, e.g., State v. Hunt, 339 N.C. 622, 646 (1994); State v. Swindler, 129 N.C. App. 1, 5 (1998).
• A witness’s testimony during the defendant’s juvenile transfer hearing in connection with the charged offense. State v. Giles, 83 N.C. App. 487, 494 (1986).
• A witness’s testimony at the defendant’s pretrial bond hearing in connection with the charge at issue. State v. Ramirez, 156 N.C. App. 249, 258 (2003) (rejecting the defendant’s argument that the bond hearing raised different issues than the trial, and therefore defendant did not have “an opportunity and similar motive” to cross-examine the witness).
• A witness’s testimony during an Alford plea proceeding. State v. Rollins, __ N.C. App. __, 738 S.E.2d 440, 445 (2013) (rejecting the defendant’s argument that he had no motive to cross-examine the witness at the plea hearing).
• A victim’s testimony during voir dire conducted during the trial at issue. State v. Finney, 358 N.C. 79, 89 (2004) (trial court erred by prohibiting the defendant from admitting this testimony).

Dying Declaration. Rule 804(b)(2) contains the hearsay exception for dying declarations. It provides an exception for 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.” N.C. R. Evid. 804(b)(2). This exception is particularly important for the State because—at least in North Carolina—it satisfies both the hearsay rules and the confrontation clause. State v. Bodden, 190 N.C. App. 505, 514-15 (2008); State v. Calhoun, 189 N.C. App. 166, 172 (2008).

One question that comes up with this exception is: Is the declarant’s death a prerequisite to admissibility? Pre-rules cases say yes. They say that the proponent of the evidence must show that death actually occurred. 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence 921 (7^th ed. 2011). That  foundational requirement has been repeated by at least one post-Rules case. Bodden, 190 N.C. App. at 512. However, other authority suggests that the rule rejects the common law requirement that death actually occur, 2 Brandis & Broun at 921 n.670; Robert P. Mosteller et al., North Carolina Evidentiary Foundations 11-85 (2^nd ed. 2009), and not all post-Rules cases include the fact of death when articulating the evidentiary foundation for this exception. See, e.g., State v. Sharpe, 344 N.C. 190, 193-94 (1996).

Moving beyond the “actual death” issue, the statement must be made at a time when the declarant believes that death is imminent. Compare Sharpe, 344 N.C. at 194 (1996) (following his confession to a murder, the witness stated that he would kill himself before he would go to jail for the murder, but nothing in the circumstances surrounding the making of the statement suggested that he was in immediate danger of being arrested; thus, it was not established that the witness believed his death was imminent), with State v. Penley, 318 N.C. 30, 40 (1986) (declarant believed death was imminent).

Finally, to be admissible under this exception, the statement must “concern[] the cause or circumstances of what he believed to be his impending death.” N.C. R. Evid. 804(b)(2). Compare Sharpe, 344 N.C. at 194 (statement did not satisfy this requirement), with Penley, 318 N.C. at 40 (statements concerned cause of death).

My last post in this long series on hearsay exceptions will address one more Rule 804 exception: Statements Against Penal Interest. Look for it soon.