Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence

51 Pages Posted: 4 Feb 2010 Last revised: 9 Jul 2013

Aviva Orenstein

Indiana University Maurer School of Law

Abstract

Dying declarations have taken on increased importance since the Supreme Court indicated that even if testimonial, they may present a unique exception to its new confrontation jurisprudence. Starting with Crawford v. Washington in 2004, the Court has developed strict rules concerning the use of testimonial statements made by unavailable declarants. Generally, testimonial statements (those made with the expectation that they will be used to prosecute the accused) may be admitted only if they were previously subject to cross examination. The only exceptions appear to be dying declarations and forfeiture by wrongdoing if the accused intentionally rendered the declarant unavailable.

This Article argues that the dying declaration merits examination for two important reasons. First, its status as an exception to the Court’s new confrontation rules seriously undermines the Court’s dramatic new interpretation of the Confrontation Clause and demonstrates the internal contradictions of the Court’s originalist approach. Second, the dying declaration exception presents one of the few remaining ways in which testimonial statements by absent victims of domestic violence can be heard.

Remarking on the prominence of women both in the Court’s recent confrontation jurisprudence and in the dying declaration caselaw, this Article examines the role of women’s voices and the means by which those voices are either excluded from or invited into the courtroom. The Article also explores the policy issues stemming from the admission of unconfronted statements by victims of femicide. It attempts to balance respect and justice for victims with fairness to the accused, and argues that dying declarations by victims of domestic violence possess unique qualities that justify a limited exception to the confrontation right.

Keywords: dying declarations, confrontation, gender, feminism, Crawford, Davis

Suggested Citation

Orenstein, Aviva, Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence. University of Illinois Law Review, Vol. 2010 (2010); Indiana Legal Studies Research Paper No. 146. Available at SSRN: https://ssrn.com/abstract=1547146

Aviva Orenstein (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-8736 (Phone)

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