Looking for Loopholes: Are Suicide Notes Really Admissible as Dying Declarations?

The “classic” dying declaration under Federal Rule of Evidence 804(b)(2) is made by a person near death from fatal wounds or illness who makes a statement to a third party about who inflicted the wounds or caused the illness. The rule is based on the belief that persons making such statements are unlikely to lie as the sense of impending death removes “all temptation to falsehood.” Thus, in theory, the dying declaration bears an imprimatur of trustworthiness justifying its admission as a hearsay exception. Still, the exception for dying declarations has been described as “the most mystical in its theory and traditionally the most arbitrary in its limitations.” This is especially true in the context of statements made in suicide notes. Indeed, there is little case law examining the proof necessary to show that a writing made sometime prior to suicide qualifies a dying declaration.

Our Article explores the complexities surrounding the suicide note as a dying declaration in federal and state jurisprudence.