The rationale for the dying declaration hearsay exception is that “no person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips.” That notion seems problematic in a nation where 1 in 4 citizens are atheists, presumably unconcerned with the impact of a falsehood on their chances in the afterlife.
But the more profound problem with presuming the reliability of dying declarations is how it ignores what happens to a brain under stress. To talk about that, we have to talk about the physiology of the brain. Let’s start with the amygdala.
So, hi! Thanks for staying. Anyway, the amygdala. It’s the Chaos Muppet of the brain (think Cookie Monster). The amygdala evaluates incoming stimuli for emotive content, tells us when we need to freak out, and helps us freak out by flooding the brain with the stress hormone cortisol.
Acting as a governor on the amygdala is the prefrontal cortex. The prefrontal cortex is the executive center of our brain, regulating decision-making and judgment (think Kermit). The prefrontal cortex is designed to stop the amygdala from overreacting to every damned thing, balancing our emotional responses. But the prefrontal cortex, awash in cortisol, can’t control the amygdala in highly stressful situations. When the prefrontal cortex gets overwhelmed by cortisol, “quite simply, we lose it.”Dying brains don’t carefully calculate the downside of displeasing their Maker with a falsehood. The precipice of death is not a placid, reflective place where we carefully calibrate the truth of our words. Instead, awash in stress hormones, a dying brain is likely to cloud objective truth.
While dying declarations may be admissible as hearsay, they aren’t probative. Argue the science in support of a Rule 403 objection.