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The Constitution and Proof By Dead or
Unconfrontable Declarants*
by Leonard R. Jaffee* *
TABLE OF CONTENTS
I. INTRODUCTION ........................................... 228
II. THE CONFRONTATION CLAUSE AND PROCEDURAL DUE
PROCESS N ORM S .......................................... 236
A. Supreme Court Pronouncements ....................... 236
B. Hearsay and Confrontation in the Circuit Courts ....... 247
C. Confrontation, Due Process, and Dying Declarations ... 260
1. Veracity Assum ed ................................. 260
2. Veracity Not Assumed ............................ 276
3. Synthesis and M odulation ......................... 291
III. CONSTITUTIONAL RATIONALITY ........................... 293
A. Due Process and Rational Empirical Basis ............. 296
1. The Rule for Evidential Presumptions (Leaqy-Bames
ru le) ............................................. 296
2. Application of the Leaf,-Barnes Rule to Presump-
tions Respecting Admissibility-Determining Ques-
tions of Preliminary Fact .......................... 303
B. The Logico-Empirical Validity of Dying Declaration
Rule Presum ptions .................................... 308
1. Psychological Contraindications .................... 308
(a) Implications of various psychopathological syn-
drom es ...................................... 309
(1) Psychoses ............................... 309
(2) Neuroses, Character Neuroses, and Psy-
chopathy ................................ 313
(3) Integration .............................. 334
(b) Normal psycho-pathology/unreliability ........ 335
(c) Religious or religious-like vectors .............. 341
(1) Incidence of Relevant Religiosity ........ 341
(2) Religion, Veracity, and Reliability ....... 349
(3) Integration .............................. 357
2. Synthesis and Extrapolation ....................... 359
IV . C ONCLUSION .............................................. 363
* © Copyright by Leonard R. Jaffee 1979, used by permission.

* Professor of Law, University of Louisville.
228 ARKANSAS LAW REVIEW [Vol. 33:227
I. INTRODUCTION
The 1960's saw the beginning of a thick debate over the validity of
hearsay rule exceptions.' The debate has involved three provisions of the
Constitution-the sixth amendment's confrontation clause and the two
due process clauses. Since the issues are as complex as their incidences are
numerous, efficiency indicates that they be examined in the narrowest
representative context. The debate has been thickest around non-cross-
examinable extrajudicial declarations traditionally admitted into evi-
dence on a presumption of the trustworthiness of a declarant and his
hearsay. 2 The spectrum of constitutional issues raised by such hearsay is
most dramatically epitomized in the history of the dying declaration-a
homicide victim's extrajudicial statement on the cause or circumstances of
his moribundity. Thus, this article, while addressing other forms of hear-
say, will focus on the dying declaration.
The hearsay rule of the common law generally bars evidence of
oathless, extrajudicial declarations offered to prove the truth of their con-
tents. 3 Admission of hearsay may violate the confrontation clause in
criminal cases where the declarant is not amenable to cross-examination
by the defendant. 4 An admission of hearsay or an exception from the
hearsay rule may violate due process requirements for reasons associated
with confrontation interests or because the basis of the admission or ex-
ception is irrational. 5
Dying declarations have been excepted from exclusion under the
hearsay rule where the declarants were cognizant of their apparent mori-
bundity. 6 This hearsay rule exception, probably the oldest, 7 was founded
on a presumption that people who know they are about to die suffer pecu-
1. In 1965 the United States Supreme Court commenced invalidating state court uses
of hearsay uttered by unconfrontable declarants. See notes 35-36 infra and surrounding text.
Since then federal courts have tested the constitutionality of hearsay uses in more cases than
in all the years preceding. See generally Parts IIA-IIB infra. See also Seidelson, Hearsay Excep-
tions and the Sixth Amendment, 40 GEo. WASH. L. REV. 76 (1971); Comment, The Admtisibility
of Dying Declarations, 38 FORDHAM L. REV. 509 (1970); Note, 75 YALE L. J. 1434 (1966);
Note, Preservingthe Right to Confrontatin-A New Approach to Hearsay Evidence in Criminal Trials,
113 U. PA. L. REV. 741 (1965).
2. See generally Parts IIA-IIB infra.
3. 5 J. WI(NIORE, EVIDENCE § 1362 (Chadbourne rev. 1974) [hereinafter cited as
WIGMORE].
4. E.g., California v. Green, 399 U.S. 149 (1970); United States v. Milano, 443 F.2d
1022 (10th Cir. 1971). See generally Parts IIA-IIB inf1a.
5. See generally note 36 ifra and surrounding text and Part III.
6. See notes 221-36 infa and surrounding text. See also Tracy v. People, 97 Ill. 101
(1880); State v. Phillips, 68 N.D. 113, 277 N.W. 609 (1938); Reg. v. Pike, 3 Car. & P. (Eng.)
598 (1829); FED. R. EvID. 804(b)(2); 5 J. WIGMORE, supra note 3, at § 1443.
7. Its prototype was one of the rulings in the early seventeenth century conspiracy
trial of Sir Walter Raleigh. See note 281 and accompanying text. See generally notes 276-80,
282-87 tnfra and related text. See also Reg. v. Pike, 3 Car. & P. (Eng.) 598 (1829).
1979] DYING DECLARATIONS
liar, irresistible, truth-compelling religious pressures, like fear of eternal

Divine retribution. 8
The United States Supreme Court has produced only a few, off-hand
dicta and no holdings on the rule's constitutional implications. Yet, if the
dying declaration rule was not the principal impetus for the confrontation
clause, 9 it may be its worst offender.' 0 History has stripped of credibility
the critical hearsay in the seventeenth century case'' that conceived the
foundations of the dying declaration rule. The foundations have never
been put to an empirical test, however, and modern authorities have not
produced a clear, statistically or psychologically supported substitute.
8. Marshall v. State, 219 Ala. 83, 121 So. 72 (1929); People v. Maria, 359 Il. 231, 194
N.E. 510 (1935); People v. Corder, 306 11. 264, 137 N.E. 845 (1922); Tracy v. People, 97 111.
101 (1880); Whitehead v. Commonwealth, 200 Ky. 440, 255 S.W. 93 (1923); Postell v. Com-
monwealth, 174 Ky. 272, 192 S.W. 39 (1917); Donnelly v. State, 26 N.J.L. 601, 620-21
(1857), approvedin State v. Agnesi, 93 N.J.L. 53, 104 A. 299 (1918); People v. Smith, 245 A.D.
69, 281 N.Y.S. 294 (1935); Reg. v. Pike, 3 Car. & P. (Eng.) 598 (1829). See State v. Rozell,
225 S.W. 931 (Mo. 1920) (credibility related to belief in God); State v. Gallegos, 28 N.M.
403, 213 P. 1030 (1923) (impeachment by showing immorality and want of religious belief).
9. Compare California v. Green, 399 U.S. 149, 176-78 (1970) (Harlan, J., concurring)
and United States v. Payne, 492 F.2d 449, 458-62 (4th Cir.) (Widener, J., concurring and
dissenting), cert. denied, 419 U.S. 876 (1974) with Commonwealth v. Brown, 388 Pa. 613,-,
131 A.2d 367, 371 (1957) (Musmanno, J., dissenting).
10. Dying declarations are the least confrontable hearsay. They may be admitted as
though under oath on a presumption of truthfulness based on a presumption of special reli-
gious morality. Eg., Strickland v. State, 167 Ga. 452, 145 S.E. 879 (1928); Connor v. State,
225 Md. 543, 171 A.2d 699, cert. denied, 368 U.S. 906 (1961); State v. Phillips, 68 N.D. 113,
277 N.W. 609 (1938); Commonwealth v. Brown, 388 Pa. 613, 131 A.2d 367 (1957); Pendle-
ton v. Commonwealth, 131 Va. 676, 109 S.E. 201 (1921). Where they are not admitted as
under oath, a scathing impeachment of the declarant's presumed trustworthiness may not
exclude his declaration or strike it after it is adduced. E.g., Gambrell v. State, 92 Miss. 728,
46 So. 138 (1908); State v. Rozell, 255 S.W. 931 (Mo. 1920); State v. Gallegos, 28 N.M. 403,
213 P. 1030 (1923); Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970). See also State v.
Williams, 36 Idaho 214, 209 P. 1068 (1922). The defense is left to raise the question of the
declarant's beliefs extrinsically or during cross-examination of the witness(es) to the declara-
tion. The defense is then placed in the unenviable, if not impossible, position of trying to
persuade a jury whose reactions may not be altered by instruction about the basis for admis-
sion of dying declarations. Compare, e.g., Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970)
and Connor v. State, 225 Md. 543, 171 A.2d 699, cert. denied, 368 U.S. 906 (1961) with State
v. Yee Gueng, 57 Or. 509, 112 P. 424 (1910), Commonwealth v. Brown, 388 Pa. 613, 131
A.2d 367 (1957), and White v. State, 30 Tex. Crim. 652, 18 S.W. 462 (Crim. App. 1892). See
also Parts IIC and IIIA2-IIIC infra. Dying declarations are often, if not always, crucial
prosecution evidence. E.g., Commonwealth v. Brown, 388 Pa. 613, 131 A.2d 367 (1957);
Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970); Strickland v. State, 167 Ga. 452, 145 S.E.
879 (1928). See Part IIC infra. For reasons mentioned above as well as others that are
obvious, they have been devastating to defenses. Id "Crucial" and "devastating" hearsay
declarations are the most likely to offend the confrontation and due process clauses. See Part
II infra. Their patent injustice is well demonstrated not only by Sir Walter Raleigh's case
(see notes 276-87 rn/ra), but also by such modern travesties as White v. State, 30 Tex. Civ.
App. 652, 18 S.W. 462 (1892) (see note 288 tfra). See also State v. Dawson, 203 S.C. 167, 26
S.E.2d 506 (1943) (only inculpating parts of declaration used).
11. See notes 283-87 inJya.
Like hearsay whose use the Court has disapproved,' 2 dying declarations
must often be devastating to a defendant's case. 13 Yet the antiquated,
inflexible dying declaration rule is still obeyed mechanically,' 4 without a
logical blink. In some states, the dying declarant's hearsay is treated as
though it were testimony given under oath. 5
Rule 804(b)(2) of the Federal Rules of Evidence reflects a modern
trend 16 extending use of dying declarations to civil trials. The rule also
appears to allow dying declarations where the declarant has not died but
is, however, unavailable.' 7 Otherwise the rule follows the common law.
Yet its premise may be newer. On this matter there is nothing instructive
in the legislative history. The Reporter of its predecessor, 18 however,
12. Se Bruton v. United States, 391 U.S. 123 (1968); Barber v. Page, 390 U.S. 719
(1968); Douglas v. Alabama, 380 U.S. 415 (1965); Pointer v. Texas, 380 U.S. 400 (1965).
13. Compare Dutton v. Evans, 400 U.S. 74 (1970) and Bruton v. United States, 391 U.S.
123 (1968) wilh Part IIC infra. See also note 28 in/ia.
14. See cases cited note 10 supra; Part IIC rnra. See also Pointer v. Texas, 380 U.S. 400,
407 (1965); Carver v. United States, 164 U.S. 694 (1897); Mattox v. United States, 156 U.S.
237 (1895). Additionally, see California v. Green, 399 U.S. 149, 178, 182 (1970) (Harlan, J.,
concurring) cihg, inter a/ia, Kirby v. United States, 174 U.S. 47 (1899) and Robertson v.
Baldwin, 165 U.S. 275 (1897), which, like Mattox, did not involve a dying declaration issue
but, without explanation, either cited dying declarations as examples of unquestionable ex-
ceptions to the confrontation clause or approved the dying declaration rule in dicta.
15. See note 10 supra.
16. See, e.g., Comment to R. 804(b)(3) of the Proposed Rules of Evidence for the
United States Courts and Magistrates (1972); C. McCORMICK, LAW OF EVIDENCE § 283
(2d ed. 1972); 5 WIGMORE, supra note 3, at § 1436. See also United States Automobile Ass'n
v. Wharton, 237 F. Supp. 255 (W.D.N.C. 1965); Miller v. Goodwin, 246 Ark. 52, 439 S.W.2d
308 (1969); Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475, 170 S.E.2d 848 (1969), af'd,
226 Ga. 221, 173 S.E.2d 691 (1970); Thurston v. Fritz, 91 Kan. 468, 138 P. 625 (1914); CAL.
EvID. CODE § 1242 (West 1966); Cummings v. Illinois Cent. R. Co., 364 Mo. 868, 269
S.W.2d Ill (1954).
17. R. 804(b)(2) does not limit itself in terms to civil actions that focus on the death of
the declarant: "or in a civil action or proceeding, a statement made ... while helieving...
death was imminent, concerning . . . what [declarant] be/ieved to be his impending death."
28 U.S.C. at 590 (1976) (emphasis added). The underscored quoted words suggest that
belief in imminence of death, not death itself, is the special ground for the 804(b)(2) excep-
tion. The other ground, necessary to all R. 804 exceptions, is unavailability, a ground that
would be present, for example, in a multiple auto collision case where one person, who was
involved in the accident but not made a party to subsequent litigation, is alive but hospital-
ized for a critical injury about which he had made a declaration while believing (quite
reasonably) that his death was imminent. Compare SENATE COMM. ON THE JUDICIARY,
REPORT ON THE FEDERAL RULES OF EVIDENCE, S. REP. No. 1277, 93d Cong., 2d Sess.
(1975) on R. 804(a), reprinted in [1974] U.S. CODE CONG. & AD. NEWS 7051, and HOUSE
COMM. ON THE JUDICIARY, REPORT ON THE FEDERAL RULES OF EVIDENCE, H. R. REP.
No. 650, 93d Cong., 1st Sess. (1975), reprinted in [1974] U.S. CODE CONG. & AD. NEWS 7075,
on R. 804(b) (3) of the Proposed Rules of Evidence for United States Courts and Magistrates
(1972), with Advisory Committee's Note to 804(b)(3) of the Proposed Rules of Evidence for
United States Courts and Magistrates (1972). Compare R. 804(b)(5) which appears at 28
U.S.C. at 590 (1976).
18. Rule 804(b)(3), Proposed Rules of Evidence for the United States Courts and
Magistrates (1972). The Reporter for R. 804(b)(2)'s predecessor was Professor Edward W.
Cleary.
published a comment suggesting that the declarant's trustworthiness is

presumable from "powerful psychological pressures" redounding gener-
ally from death's imminence rather than solely from a Christian-like fear
of Divine retribution.19 Since the current federal rule did not amend its
predecessor in any way that could reflect a change in the trustworthiness
presumption, it likely rests on its predecessor's presumptive premise. This
history, however, did not involve factual or scientific investigation of the
validity of the rule's apparent premise. Beyond supposing an undifferen-
tiated universal feeling that death is an awesome, solemn occasion, the
Reporter said nothing of the content or source of the "powerful psycho-
logical pressures." Wigmore suggests that modern judicial thought ac-
cords with the likely premise of the federal rule.20 My research indicates,
however, that the cases do not discard the old premise of trustworthiness-
compelling Christian-like belief in postmortem retribution.
Probably all cases thought to discard the old premise discard only
the presumption that the religious truth-compulsions of dying declarants
are substitutes for an infrajudicial oath and attendant perjury liability.
Many were tried in forums whose constitutions, statutory laws, or judicial
21
precedents had repudiated infrajudicial religious oaths for witnesses.
Not one case, however, has repudiated the presumption that a dying de-
clarant will be trustworthy in speaking to the cause or circumstances of
his moribundity because he fears he will suffer postmortem retribution if
he lies. 22 Some do not require that the dying declarant have been relig-
19. Advisory Committee's Note (to Rule 804(b)(3) of the Proposed Rules of Evidence
for the United States Courts and Magistrates), whose Reporter, Professor Edward W.
Cleary, prepared the 1975 Compilation of the Federal Rules of Evidence for United States
Courts and Magistrates for the Federal Judicial Center at the request of the Standing Com-
mittee on Rules of Practice and Procedure of the judicial Conference of the United States.
The 1975 Compilation included the Advisory Committee's Note to Proposed Rule 804(b)(3).
20. See 5 WIGMORE, supra note 3, at § 1443, especially at 302 (e.g., the "declarant,
being at the point of death, 'must lose the use of all deceit' " because there "is no longer any
temporal self-serving purpose to be furthered." Id. quoting W. SHAKESPEARE.
21. As to religious belief and competence to testify, see generally 97 C.J.S. Witnesses § 62
(1957). More particularly, see Wright v. State, 24 Ala. App. 378, 135 So. 636, 637-39 (1931);
State v. Agnesi, 93 N.J.L. 53, 104 A. 299 (1918); State v. Hood, 63 W. Va. 182, 59 S.E. 971
(1907). Some of these cases, and others like them, e.g., Marshall v. State, 219 Ala. 83, 121
So. 72 (1929), and People v. Sanford, 43 Cal. 29, 34 (1872), State v. Elliot, 45 Iowa 486
(1877), Hill v. State, 64 Miss. 31, 1 So. 494 (1887), McClendon v. State, 36 Okla. Crim. 11,
251 P. 515 (Crim. App. 1926), State v. Ah Lee, 8 Or. 214 (1880), State v. Hood, 63 W. Va.
182, 59 S.E. 971 (1907), confused the reason for a Judeo-Christian-type religious oath by a
living, testifying witness with the reason for the religious aspect of the dying declaration rule.
Thus, they tend to imply that invalidation of the religious oath necessitated the end of the
dying declaration rule's religious belief requirement. See also note 22 infra and surrounding
text.
22. Many of the cases or jurisdictions cited in note 21 supra allow the opponent of a
dying declaration to impeach the declarant by showing him to be irreligious. Eg., State v.
Elliot, 45 Iowa 486 (1877); McClendon v. State, 36 Okla. Crim. 11, 251 P. 515 (1926). Com-
pare State v. Yee Gueng, 57 Or. 509, 112 P. 424 (1910) and State v. Ah Lee, 8 Or. 214 (1880),
ARKANSAS LAW REVIEW [Vol. 33:227
iously concerned about afterlife and retribution. 23 These allow, however,
with Goodall v. State, 1 Or. 333 (1861). See also Carver v. United States, 164 U.S. 694
(1897); Kirby v. State, 151 Ala. 66, 44 So. 38 (1907); People v. Lim Foon, 29 Cal. App. 270,
155 P. 477 (Dist. Ct. App. 1915); Nesbit v. State, 43 Ga. 238 (1871); Nordgren v. People, 211
Ill. 425, 71 N.E. 1042 (1904); State v. O'Shea, 60 Kan. 772, 57 P. 970 (1899); Lambeth v.
State, 23 Miss. 322 (1852); State v. Rozell, 225 S.W. 931 (Mo. 1920); Wilson v. State, 86
Nev. 320, 468 P.2d 346 (1970); Donnelly v. State, 26 N.J.L. 463 (1857), afd, 26 N.J.L. 601
(1857), approved in State v. Agnesi, 93 N.J.L. 53, 104 A. 299 (1918); State v. Gallegos, 28
N.M. 403, 213 P. 1030 (1923). Yet few jurisdictions allow impeachment of a testifying wit-
ness purely on the basis of his irreligiousness. See UNIFORM RULE OF EVIDENCE 610; FED.
R. EViD. 610; CAL. EvID. CODE § 789 (West 1966); 3 J. WIGMORE, supra note 3, at 936; C.
MCCORMICK, LAW OF EVIDENCE § 48 (2d ed. 1972). This exposes the essential differences
between the problem of the religious basis of the dying declaration rule and that of deter-
mining the competency or credibility of witnesses with a certain religilus oath or belief. It is
presumed that religious beliefs and peculiar, religiously supersignificant circumstances of
death perceived by the dying declarant combine to move him to be truthful where in ordi-
nary life he might not. Since the declarant is not a witness and has not taken an in-
frajudicial oath, the religiously supersignificant, peculiar setting is the only apparent basis
for trusting him sufficiently to hear his declaration. It is the absence of an oath by the extra-
judicial declarant-not the content of a trial witness's oath or the latter's irreligion-that is
involved in the dying declaration case: the religiously supersignificant, peculiar setting is
pragmatically necessary to admitting the otherwise-inadmissble, extrajudicial declaration; it is
"supposed to compensate" [see Tracy v. People, 97 111. 101 (1880)] for a lack of
any oath or
confrontation. Contrariwise, the reasons for ending the reliance on Judeo-Christian oaths are
not substantially empirico-psychological or pragmatic, but rather constitutional or quasi-
constitutional: (a) first-amendment-like concerns respecting free and unestablished religion;
(b) a concern for the guarantee of the infrajudicial testimonial privilege as an essential inci-
dent of citizenship. Regarding religious oath and impeachment, the problem was not includ-
ing otherwise-untrustworthy and incorrigible extrajudicial declarations, but rather the
legitimacy of excluding otherwise-trustworthy, infrajudicially corrigible testimony. Nor are
the constitutional or quasi-constitutional concerns that led to dropping religion from oaths
and impeachment of witnesses applicable to the dying declarant or his declaration. The
dying declarant does not exercise the testimonial privilege. Neither is he pressured toward
or from a religious belief or its avowal, nor is he prevented by a judicial religious preference
from making his declaration. Rather, his extrajudicial, oathless declaration is given a judi-
cial audience to which it is not constitutionally entitled (and which it may not deserve)
because it is thought that his religiously supersignificant, peculiar circumstances very proba-
bly have made his declaration specially trustworthy. If, then, the cases in question are not to
be dismissed as illogical [see also 5 WIGMORE, supra note 3, § 1443 at 303], they must be read
as presuming, for purposes of admissibility, that every dying declarant experiences appropri-
ate religious or religious-like feelings when he believes his death imminent. This would seem
to be the explanation provided by Goodall v. State, I Or. 333 (1861), and probably by
Marshall v. State, 219 Ala. 83, 121 So. 72 (1929), McClendon v. State, 36 Okla. Crim. 11,
251 P. 515 (1926), and State v. Yee Gueng, 57 Or. 509, 112 P. 424 (1910). See also Carver v.
United States, 164 U.S. 694, 697 (1897); Nesbit v. State, 43 Ga. 238 (1871); Tracy v. People,
97 11. 101 (1880); Gambrell v. State, 92 Miss. 728, 46 So. 138 (1908); Wilson v. State, 86
Nev. 320, 468 P.2d 346 (1970); Regina v. Perkins, 9 Car. & P. 395 (1840). Compare Hill v.
State, 64 Miss. 431, 1 So. 494 (1887) with Dean v. State, 173 Miss. 254, 160 So. 584, aj'd, 173
Miss. 254, 162 So. 155 (1935) and Gambrell v. State, 92 Miss. 728, 46 So. 138 (1908). None
holds that the religiousness of a dying declarant would not be a reason to admit his declara-
tion, but only that a failure to show his religion or a reason to suspect it will not (or not
necessarily) exclude his declaration. Many courts have cited or quoted the WIGMORE lan-
guage quoted in note 20 supra as the basis of their dying declaration rule. E.g., State v.
Custer, 336 Mo. 514, 80 S.W.2d 176 (1935); People v. Gezzo, 307 N.Y. 385, 121 N.E.2d 380
(1954); State v. Phillips, 68 N.D. 113, 277 N.W. 609 (1938). But most of these and other
courts or jurisdictions relying on that or like language have also required that the dying
that a dying declaration would be admissible for the sole reason that the
declarant was so concerned, 24 and they offer only unsupported, unex-
plained conclusions as to why the dying declaration of a nonreligious or
atheistic declarant may be admitted or presumed trustworthy. 25 No au-
thority has proffered a nonreligious basis shown by sound empiricism to
be a fact appropriate for judicial notice or legislative action.
Some cases posit that a dying declaration is necessary evidence, be-
cause: (a) the dying declarant is unavailable; or (b) the killer would profit
declarant have a "solemn conviction that he was about to meet his maker" or have no hope
for "redemption" on earth. See, e.g., State v. Williams, 36 Idaho 214, 209 P. 1068, 1069
(1922); People v. Maria, 359 II1. 231, 194 N.E. 510 (1935); Whitehead v. Commonwealth,
200 Ky. 440, 255 S.W. 93 (1923); Dean v. State, 173 Miss. 254, 160 So. 584 (1935), afd, 175
Miss. 254, 162 So. 155 (1935); Edwards v. State, 113 Neb. 698, 204 N.W. 780 (1925); People
v. Gezzo, 307 N.Y. 385, 121 N.E.2d 380 (1954); State v. Debnam, 222 N.C. 266, 22 S.E.2d
562, 564 (1941) (citing WIGMORE, but also requiring a "sanction for truth equal to an oath"
so as to suggest more than an absence of reason for deceit, le., a divine sanction). Compare
People v. Smith, 245 A.D. 69, 281 N.Y.S. 294 (1935) and People v. Sarzano, 212 N.Y. 231,
106 N.E. 87 (1914) with People v. Gezzo, 307 N.Y. 385, 121 N.E.2d 380 (1954); and compare
Postell v. Commonwealth, 174 Ky. 272, 192 S.W. 39 (1917) with Whitehead v. Common-
wealth, 200 Ky. 440, 255 S.W. 93 (1923). See also State v. Phillips, 68 N.D. 113, 277 N.W.
609 (1938) (requiring, beyond "mind free from motives to misstate," a "mental condition"
furnishing "an incentive to speak nothing but the truth ... equal to that of an oath" and
"guaranteed by the solemnity imposed by the consciousness of the approach of what the
declarant then believes . . . certain dissolution .... "). Whence the "incentive" and
"solemnity imposed"? What is the meaning of "dissolution"? Phillips too may have looked to
divine pressures. Compare State v. Phillips, 68 N.D. 113, 277 N.W. 609 (1938) with State v.
Williams, 36 Idaho 214, 209 P. 1068, 1069 (1922). In any event, I have not found a case
expressly or logically repudiating the religious basis of the dying declaration exception; and
even Wigmore has admitted that most of his cases expressly hold theological belief material
to admissibility. 5 J. WIGMORE, supra note 3, at 302.
23. E.g., Marshall v. State, 219 Ala. 83, 121 So. 72 (1929); State v. Williams, 36 Idaho
214, 209 P. 1068 (1922).
24. State v. Williams, 36 Idaho 214, 209 P. 1068, 1069 (1922), states:
It is generally considered that the fact that the declaration is made by one. . . in
articulo mortis . . . with a consciousness of impending dissolution, is itself suffi-
cient guaranty of the truthfulness of the statement . . . . Whether this effect is
produced by spiritual conviction . . . or some other reason, might be difficult to
determine ...
While Marshall v. State, 219 Ala. 83, 121 So. 72 (1929), would not make a dying declaration
incompetent because the religion of the declarant is not clear, it would allow impeachment
of a dying declarant on grounds of religious unbelief. Thus Marshall implies that the declar-
ant's belief will render his dying declaration trustworthy. See also Nesbit v. State, 43 Ga. 238
(1871); Gambrell v. State, 92 Miss. 728, 46 So. 138 (1908). Compare State v. Rozell, 255 S.W.
931 (Mo. 1920) with State v. Custer, 336 Mo. 514, 80 S.W.2d 176 (1935).
25. E.g., State v. Williams, 36 Idaho 214, 209 P. 1068, 1069 (1922): "[T]he fact that
the statement of one consciously about to die carries conviction, without an analysis of the
reason why it does so, is sufficient guaranty of trustworthiness to render the dying declara-
tion admissible" and, "[wlhether this effect is produced by . . . physical revulsion, as sug-
gested by Wigmore, . . . might be difficult to determine." Many of these cases quote
Shakespeare for their "proof." E.g., State v. Custer, 336 Mo. 514, 80 S.W.2d 176 (1935);
State v. Beal, 199 N.C. 278, 154 S.E. 604, 615 (1930). See also R. 804(b)(3) of the Proposed
Rules of Evidence for United States Courts and Magistrates, Comment (1972). Note that
Wigmore's "proofs" also depend upon Shakespeare as well as upon unempirical assumption
or surmise. See 5 J. WIGMORE, supra note 3, § 1443.
from his decision to commit the ultimate malum in se if he could thereby

silence the best witness against him. 26 These do not suggest, however,
that the dying declaration would be admissible exclusively on such
grounds. They hold such necessity a sine qua non. 27 They imply that if
other evidence is sufficient, or if a witness other than the declarant is bet-
ter or equally good and sufficient, then a dying declaration that is heavily
prejudicial ought not be admitted. 28 Modern rules2 9 permit substantive
26. See Comment, 38 FORDHAM L. REV. 509, 515-17 (1970). See also 5 WIGMORE,
supra note 3, §§ 1431-36; C. MCCORMICK, LAW OF EVIDENCE § 283 (2d ed. 1972); Advisory
Committee's Note to R. 804(b) (3) of the Proposed Rules of Evidence for the United States
Courts and Magistrates (1972) and H. R. REP. No. 650, 93d Cong., Ist Sess. (1975) reprtted
in [1974] U.S. CODE CONG. & AD. NEWS 7075, on the same Proposed Rule, on the "excep-
tional need" in homicide cases. Cf California v. Green, 399 U.S. 149 n.15 (1970). See also
note 27 infla .
27. In the United States, the moribund declarant's unavailability has always been a
condition precedent to admission into evidence. See C. McCORMIcK, LAW OF EVIDENCE
§§ 282-83 (2d ed. 1972). In both the Uniform and the Federal Rules of Evidence, Rule 804,
of which the dying declaration rule is part, also makes declarant unavailability a general
precondition. In the Advisory Committee's Note to Rule 804(b) of the Proposed Rules of
Evidence for United States Courts and Magistrates (1972), the function of the unavailability
requirement for all the particular exceptions under 804 was explained:
Rule 803 . . . is based upon the assumption that . . . hearsay . . . falling within
one of its exceptions possesses qualities which justify the conclusion that whether
the declarant is available or unavailable is not a relevant factor. . . . The instant
rule [804] proceeds upon a different theory: hearsay . . . admittedly . . . not
equal in quality to testimony of the declarant on the stand may nevertheless be
admitted if the declarant is unavailable and if his statement meets a specified stan-
dard . . . . [H]earsay, if of the specified quality, is preferred over complete loss of
the evidence of the declarant.
Like 804(b) of the proposed federal rules, the current R. 804(b) (both Uniform and Federal)
requires the traditional belief-in-impending-death and declarant-unavailability factors to be
shown in dying declaration offers. The House Report on the current R. 804(b)(2), H. R.
REP. No. 650, 93d Cong., 1st Sess., reprthted in [1974] U.S. CODE CONG. & AD. NEWs 7075,
indicated that the Judiciary Committee did "not consider dying declarations as among the
most reliable forms of hearsay" and hence "amended [the proposed rule] to limit their ad-
missibility in criminal cases to homicide prosecutions, where exceptional need is present." (em-
phasis added). The House Report observed that its position was "existing law." Id
(emphasis added). The Senate apparently did not produce a separate report on Rule 804's
subsection (b)(2) or dissent from the House Committee's view. Thus, as may be required by
cases discussed later in this article (see Parts IIA-IIB infra), an extra, implicit limit of admissi-
bility under 804(b)(2) may be the relative exceptionality of the need weighed against the
quality of the hearsay (here significance to declarant of his belief in impending death and
apparent lucidity and reliability of the declaration) and the potential for undue harm to
defendant. The House Committee allowed dying declaration admission in civil cases,
though not in non-homicide criminal ones, because the opponent-defendant in a civil case
has less at stake than a defendant in a non-homicide criminal case, while the prosecution's
need or the declaration's utility in a non-homicide case is less than in a homicide case. H.
Rep. 650, 93d Cong., 1st Sess., reprinted in [1974] U.S. CODE CONG. & AD. NEws 7075
("Committee approved expansion to civil actions ... where stakes do not involve . . . im-
prisonment" while it limited criminal trial use to "homicide prosecutions, where exceptional
need . . . is present"). Thus, in the Congressional view too the necessity (unavailability) sine
qua non may have to be seen as contemplating a precondition of relatively great necessity.
Cf FED. R. EVID. 804(b)(5).
28. See note 27 supra. Compare Hill v. State, 64 Miss. 431, 1 So. 494 (1887); Lambeth v.
evidential use of declarations of unavailable, surviving, attempted-homi-

cide victims shown reasonably to have believed they were dying. Hence
the "necessity" of preventing homicide perpetrators from profiting from a
killing rather than merely harming cannot be a ubiquitous szne qua non.
Religious fears or compulsions that may ensure a dying declarant's
trustworthiness, therefore, seem alone to supply a theory of dying declara-
tion admissibility. Whether such theory may justify excepting dying dec-
larations from the hearsay rule, it cannot, ipso facto, exclude dying
30
declarations from the proscription of the confrontation clause.
Also, both religion-based and psychology-based dying declaration
3
theories may impair substantive or procedural due process rights. ' The
32
often irrebuttable presumption that dying declarations are sufficiently
trustworthy to be admitted may conflict with fundamental norms respect-
33
ing the relative roles of judge and jury. Where dying declarations are
State, 23 Miss. 322 (1852), People v. Mleczko, 298 N.Y. 153, 81 N.E. 2d 65 (1948), People v.
Falletto, 202 N.Y. 494, 96 N.E. 355 (1911), Dowdell v. State, 194 Ga. 578, 22 S.E.2d 310
(1942), State v. Gallegos, 28 N.M. 403, 213 P. 1030 (1923), State v. Stewart, 210 N.C. 362,
186 S.E. 488 (1936), Goodall v. State, I Or. 333 (1861), Commonwealth v. Meleskie, 278 Pa.
383, 123 A. 310 (1924), Humphries v. State, 166 Tenn. 523, 64 S.W.2d 5 (1933), State v.
Mayo, 42 Wash. 540, 85 P. 251 (1906), and Mitchell v. Commonwealth, 178 Va. 407, 17
S.E.2d 370 (1941), as to provision for limiting instruction on relative worth of a dying decla-
ration and perhaps a charge that conviction cannot rest solely on such hearsay. See generally
Note, Dying Declarations-Instructionsby the Trial Court, 32 NEB. L. REv. 461 (1953). See also
Shepard v. United States, 290 U.S. 96, 104 (1933) ("reverberating clang of those accusatory
[dying declaration] words would drown all weaker sounds [of a charge to view the declara-
tion only as one of state of mind]" in the "ordinary minds" ofjurors, who are "not psychoan-
alysts") (per Cardozo, J., reversing trial admission of dying declaration not shown to have
been made in consciousness of impending death and reversing court of appeals affirmance
on state of mind grounds).
30. See California v. Green, 399 U.S. 149, 155-56 (1970); Dutton v. Evans, 400 U.S. 74,
80-81, 93-96 (1970); notes 50-55, 71 injfa and surrounding text. Compare Barnes v. United
States, 412 U.S. 837, 843-45 (1973) with Bruton v. United States, 391 U.S. 123, 128 (1968);
Dutton, 400 U.S. at 84 & 94-96, and Pointer v. Texas, 380 U.S. 400, 407 (1965) (dictum on
dictum).
31. See generally notes 50-55 and Parts IIC & III infla.
32. The presumption is effectively irrebuttable in those jurisdictions that presume that
a person who believes he is in death throes experiences truth-impelling religious or quasi-
religious feelings, relegating evidence of irreligiousness to impeachment (if anything). E.g.,
Nesbit v. State, 43 Ga. 238 (1871); State v. Williams, 36 Idaho 214, 209 P. 1068 (1922);
Gambrell v. State, 92 Miss. 728, 46 So. 138 (1908); Wilson v. State, 86 Nev. 320, 468 P.2d
346 (1970).
33. The effect of presuming irrebuttably that a dying declaration is trustworthy be-
cause made knowingly "in extremis" (see note 32 supra) is to shift to the jury the task of
determining whether the declaration was sufficiently reliable to be considered in evidence.
Moreover, to the extent the effect of the presumption of trustworthiness may lend credence
to the declaration in theiury's thinking [cf.note 28 supra and compare Strickland v. State, 167
Ga. 452, 145 S.E. 879, 882 (1928)], the court may have failed in its obligation to certify that
presumptions are properly supported in empirical reality and thus allowed the jury to be
influenced improperly by the record. Compare Barnes v. United States, 412 U.S. 837 (1973)
and Leary v. United States, 395 U.S. 6 (1969) with Bruton v. United States, 391 U.S. 123
treated as though made under infrajudicial oath, first-amendment-related

34
and other due process norms may be violated.
This article will examine each of these matters. It will test the trust-
worthiness presumption empirically as well as juridically.
II. THE CONFRONTATION CLAUSE AND PROCEDURAL DUE
PROCESS NORMS
A. Supreme Court Pronouncements
In 1965 the Court entered a decade of reconsideration of the confron-

tation clause's function. Reconsideration included the clause's relation
(1) to fourteenth amendment due process, (2) to formal hearsay rules, (3)
to the availability and cross-examinability of declarants whose out-of-trial
statements prosecutors seek to introduce, (4) to the harmless error rule, (5)
to allocation of burdens of argument, and (6) to certain preliminary fact
presumptions associated with each of the preceding relationships.
Twice in 1965 the Court appeared to hold the confrontation clause
(1968). See also Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (due process question raised
by prosecutorial comment that arguably functioned as non-cross-examinable, presumptively
reliable testimony); Davis v. Alaska, 415 U.S. 308 (1974) [trial court's precluding impeach-
ment ofjuvenile witness with criminal record violated confrontation clause: cf court charge
on reliability of practically unimpeachable dying declaration, especially where treated-e.g.,
Commonwealth v. Brown, 388 Pa. 618, 131 A.2d 367 (1957)-as though made under oath];
Chambers v. Mississippi, 410 U.S. 284 (1973). These matters will be developed below in
Parts IIC & III.
34. Ie., concerns akin to the establishment clause--substantive due process interests
affecting the validity of the religious belief presumption of the dying declaration rule. See
genera ly Part III infra. Some cases suggest that the first amendment might be offended by
making admissibility of dying declarations depend on whether declarant held Judeo-Chris-
tian beliefs. See notes 21-22 supra. The rights of the declarants, however, are not at stake.
See note 22 supra, Whether a court's "preferring" a certain religious viewpoint (that Judeo-
Christians will not prevaricate on their deathbeds) in "validating" a dying declaration ad-
duced against a criminal defendant violates the defendant's anti-establishment interest,
however, is a somewhat interesting question. Defendant may be injured. It is not likely,
however, that such an injury isone against which the establishment clause may protect him.
Thus his standing is far from clear. Compare Flast v. Cohen, 392 U.S. 83 (1968) and Associa-
tion of Data Processing Serv. Organizations v. Camp, 397 U.S. 150 (1970) with Gillette v.
United States, 401 U.S. 437 (1971). But compare Epperson v. Arkansas, 393 U.S. 97 (1968).
Even if standing were no barrier, it would be difficult to see how the defendant would pre-
vail on the merits, since his injury would be describable as only incidental or consequential
to a trial process regulation not itself essentially religion-related-an injury to his trial inter-
ests, not to his religious freedom. Compare Gillette. The cost in freedom resulting from the
religious preference, however, might lend the establishment matter some substance under
Flast and Epperson, though, again, Gillette makes this doubtful. The worthier, related, mat-
ter is the irrationality of presuming either that the preponderance of potential dying declar-
ants may hold Judeo-Christian or similar feelings about dying and death or that the
preponderance of potential dying declarants with such feelings will be trustworthy or relia-
ble because of them. This latter set of issues is developed extensively below (Part III).
Whatever its merit, the establishment matter is not properly within this article's ambit.
incorporated into the fourteenth amendment's due process clause.3 5

Later, however, the Court proved ambivalent on the matter of incorpora-
tion.3 6 Now, apparently, while confrontation may be a legitimate due
35. Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).
36. Berger v. California, 393 U.S. 314 (1969), Barber v. Page, 390 U.S. 719 (1968),
Roberts v. Russell, 392 U.S. 293 (1968), were the last decisions in which the Court clearly
treated the clause as fully incorporated. In California v. Green, 399 U.S. 149 (1970), the
new Chief Justice specially concurred in an opinion suggesting that states should be given
special hearsay rule leeway under the confrontation clause. His language recalls that of
anti-incorporationists Justices Frankfurter and Harlan. The federal bench has read the Bur-
ger opinion in Green as being nonincorporationist. United States v. Payne, 492 F.2d 449, 457
(4th Cir. 1974) (Widener, J., concurring and dissenting). See also id. at 453-54 where the
Payne court, relying on Justice Harlan's Green concurrence, said: "the maorty of the
Supreme Court has not yet committed itself to the thesis of Justice Harlan [in California v.
Green]." The Payne majority was aware of its dissenting brother's view of the Burger opin-
ion. Justice Brennan, dissenting in Green, thought the Green majority was a departure from
earlier confrontation clause decisions, including Berger, Barber, and Douglas v. Alabama, 380
U.S. 415 (1965). Justice White, writing for the majority opinion in Green, took into account
realities of particular cases and legitimate differences among jurisdictions as to proper hear-
say use, and allowed for differences in state and federal hearsay use. See 399 U.S. at 155-56,
158, 161, 168-70. The Green majority did not cite federal criminal cases in determining
whether there had been unreasonable infringement of defendant's fundamental interests in
getting infrajudicial cross-examination of declarant into the fact-finder's cognizance. The
Payne majority thought Green was no impediment to its essentially nonincorporation
(Harlan-like) treatment of confrontation in state process. 492 F.2d at 454. In Dutton v.
Evans, 400 U.S. 74 (1970), Justice Stewart, speaking for a four-Justice plurality, quoted from
the pre-incorporation opinion of Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97
(1934), in not allowing federal habeas process to usurp local jurisdiction or rules in favor of
maintaining the abstract integrity of confrontation law developed in federal cases. See 400
U.S. at 89-90. Compare id. with id. at 80-83, 86-89. Justice Stewart had taken similar posi-
tions in other, clearly anti-incorporation opinions. E.g., Pointer v. Texas, 380 U.S. 400, 409-
10 (1965) (concurring); Douglas v. Alabama, 380 U.S. 415, 423 (1965) (concurring); Benton
v. Maryland, 395 U.S. 784, 801-13 (1969) (Harlan and Stewart, JJ., dissenting); Duncan v.
Louisiana, 391 U.S. 145, 171 (1968) (Harlan and Stewart, JJ., dissenting). See also Douglas
v. Alabama, 380 U.S. 415, 423 (Harlan and Stewart, JJ., concurring). His Dutton descrip-
tion of Pointer and Douglas is not clearly in line with those of the Courts in those cases but is
remarkably similar to Justice Harlan's description in Dutton. Compare 400 U.S. at 87 with id.
at 93, 98. See also 400 U.S. at 100-11 (Marshall, J., dissenting); LEMPERT & SALTZBERG, A
MODERN APPROACH To EVIDENCE 548 (1977). The Dutton plurality creates doubt as to
how much of its decision turns on sub-constitutional assessments of the relative merits of
federal and state evidence rules. See Dutton v. Evans 400 U.S. 74, 80-82, 89-90 (1970).
Significantly, both Justice White and Chief Justice Burger joined the Dutton plurality. Jus-
tice Blackmun's concurring opinion, id. at 90, said nothing on incorporation. Justice
Harlan's concurrence, couched in pure due process terms, disdained incorporation. Id. at
93. After Justices Powell and Rehnquist replaced Justices Harlan and Black, hearsay deci-
sions became less incorporationist. In Mancusi v. Stubbs, 408 U.S. 204 (1972), the defend-
ant had been tried twice. One victim had testified at the first trial; but the prosecution did
not produce him during the second, when he was residing in Sweden. Justice Rehnquist,
joined by Justices Powell, Stewart, White, Blackmun, and Chief Justice Burger (all known
for non-incorporation leanings), and by Justice Brennan (perhaps on harmless error
grounds), held that because the "predicate of unavailability is sufficiently stronger [in Man-
cusi] than in Barber" (where, inter alia, failure of the state prosecution to produce an arguably
available declarant invalidated use of preliminary hearing testimony), "a federal habeas
corpus court was not warranted in upsetting the determination of the state trial court as to
[declarant's] unavailability." Id. at 212-13. Justices Marshall and Douglas, dissenting,
process issue in all cases where criminal prosecutors evidence unamenable

hearsay declarants' statements to the detriment of the accuseds, the influ-
ence of the confrontation clause may depend on whether the issue arose in
a state court rather than a federal tribunal. 37 For expediency's sake, this
article will disregard the question of the significance of the forum.
Rather, wherever the question could be relevant, the article will speak on
a level consistent with minimal requirements for state court process.
Vis-a-vts Supreme Court statements as to the scope of the right of
thought that the "right of confrontation may not be dispensed with so lightly" as on a
presumption of unavailability. The "presumption" of unavailability, under which Justice
Rehnquist's opinion arguably operated, can be tied to the conservative views of Justice
Harlan. Compare Justice Harlan's opinion in Dutton , 400 U.S. 74, 94-95, 99-100 (1970) with
his dissent in Smith v. Illinois, 390 U.S. 129, 134 (1968) (burden on defendant to show need
for his cross-examination of prosecution witness-presumption that unavailability of certain
line of cross-examination was not harmful). Similar inferences can follow from the Mancusi
deference to "special" difficulties of states in trying criminals and the state court's finding on
the state's prospect for obtaining declarant. See Mancusi v. Stubbs, 204, 408 U.S. 211-13
(1972). It is also relevant that Mancusi focused on the Dutton concern for "indicia of reliabil-
ity" in the hearsay rather than on the Barber concern for defendant's interest in actual, in-
trial cross-examination. Id. at 216. In Chambers v. Mississippi, 410 U.S. 284 (1973), a state
court refused to permit defendant to cross-examine a witness the state had not called, where
the witness had confessed to the charge against defendant but later repudiated the confes-
sion though admitting his guilt seriatim to three friends. Reading Mancusi as holding that
the right "to confront andcross-examine is not absolute" but "may, in appropriate cases, how to
accommodate other legitimate interests in the criminal process," Justice Powell, a non-incorporation-
ist, held: "quite simpy that under thefacts and circumstances of this case the rulings of the trial
court deprived defendant of a fair trtal" Justice Powell added that this holding did not
"signal any diminution in the respect traditionally accorded to the States in the establishment and
implementation of their own criminal trial rules and procedures." Id. at 295, 302-03 (emphasis
added). While Justice White concurred specially on another point, he agreed with Justice
Powell's rationale. Id. at 303 & 308. Justice Rehnquist, dissenting on a ground irrelevant
here, said: "I would have considerable difficulty subscribing to the.., further constitution-
alization of the intricacies of the common law of evidence." Id. at 308. In Donnelly v.
DeCristoforo, 416 U.S. 637 (1974), a state prosecutor commented on evidence in a way
Justice Douglas thought amounted to invalidly non-cross-examinable testimony. While a
six-Justice majority (including Justices Stewart, White, and Blackmun, and Chief Justice
Burger) deemed defendant's confrontation clause claim meritless, they did think the case
involved an arguable due process claim harder to maintain than similar confrontation
claims. Id. at 643. If one compares all the opinions in the bulk of recent nonconfrontation
sixth amendment cases, one is put to further doubt regarding the extent of sixth amendment
influence on fourteenth amendment due process. See, e.g., Taylor v. Louisiana, 419 U.S. 522
(1975); Davis v. Alaska, 415 U.S. 308 (1974); Ham v. South Carolina, 409 U.S. 524 (1973);
Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972). In
relation to Johnson, Apodaca, and Taylor, see Justice Fortas's opinion in Duncan v. Louisiana,
391 U.S. 145, 213 (1968) (suggesting that not all elements of the sixth amendment are em-
bodied in fourteenth amendment due process, so that application of sixth amendment rights
to states may differ from that to federal courts).
37. As to the arguably ambivalent influence of the confrontation clause, see note 36
supra. As to whether confrontation is always at least a colorable issue ois-r-vi hearsay use in
criminal cases, see Mancusi v. Stubbs, 408 U.S. 204 (1972); Schneble v. Florida, 405 U.S. 427
(1972); Nelson v. O'Neil, 402 U.S. 622 (1971); Dutton v. Evans, 400 U.S. 74, 81-82 (1970);
Chambers v. Mississippi, 410 U.S. 284 (1973); California v. Green, 399 U.S. 149, 155-56, 169
(1970); Harrington v. California, 395 U.S. 250 (1969); and note 38 infra.
1979] DYING DECLARATIONS 239
confrontation, it profits us to focus on the problem of a hearsay declar-

ant's amenability to in-trial cross-examination. 38 The Court currently
seems certain that ordinarily a prosecutorial use of hearsay that is harm-
ful will be reversible error where the prosecution is somehow at "fault" for
declarant's unavailability for in-trial cross-examination. 39 But if the de-
clarant uttered the hearsay in a previous judicial proceeding in the same
cause and was subjected to full and searching cross-examination by de-
fendant's trial counsel, the harmful admission of his declaration ordina-
rily will not be reversible error where declarant's "unavailability" is not
the prosecution's "fault," and the official record of the previous proceed-
ing has been made amenable to defense counsel's in-trial use and has
otherwise been accessible to the trier of fact. 40 Even if the prosecution
neglects to procure an amenable declarant, admission of his declaration
will not be reversible error where (a) defendant's trial counsel has previ-
ously cross-examined the declarant, and (b) it appears that further cross
would have been fruitless and the defense cannot show otherwise. 4 1 In
38. The question whether a recognized, traditional exception to the hearsay rule is
automatically exempt from confrontation clause cross-examination requirement has arisen
in passing comments and superficial dicta in the Court's opinions. See notes 50 & 58 itnfra.
But best indications are contrary. See California v, Green, 399 U.S. 149 (1970), and Dutton
v. Evans, 400 U.S. 74 (1970) as cited in note 37 supra. One Justice has questioned whether
cross-examination is the core of the area. California v. Green, 399 U.S. 149, 172-89 (1970)
(Harlan, J., concurring). But that Justice later repudiated the question and held cross-ex-
amination interests central. Dutton v. Evans, 400 U.S. 74, 94-95 (1970) (Harlan, J., concur-
ring). The Court's concerns over constitutional matters similar to those related to common
law recognition of a hearsay rule exception have ultimately appeared tied to the question of
necessity for cross-examination in particular cases. E.g., the Dutton plurality's concern for a
hearsay's "indicia of reliability" (similar to the common law's concern for the trustworthi-
ness of classes of hearsay). Id. at 89.
39. Compare Berger v. California, 393 U.S. 314 and Barber v. Page, 390 U.S. 719 (1968)
with Mancusi v. Stubbs, 408 U.S. 204 (1972); California v. Green, 399 U.S. 149 (1970). See
also Pointer v. Texas, 380 U.S. 400 (1965).
40. California v. Green, 399 U.S. 149 (1970). See Mancusi v. Stubbs, 408 U.S. 204
(1972).
41. See Mancusi v. Stubbs, 408 U.S. 204 (1972); Dutton v. Evans, 400 U.S. 74 (1970).
Cf Schneble v. Florida, 405 U.S. 427 (1972); Harrington v. California, 395 U.S. 250 (1969).
Dissenting in Green, Justice Brennan suggested that, irrespective of prosecution fault related
to declarant's trial unavailability, pretrial or other-trial cross was inadequate under the
Court's earlier opinion in Berger v. California, 393 U.S. 314 (1969), which he thought Green
was overturning. In Berger the state did not show that it had made a good faith effort to
obtain a declarant who had previously appeared at a preliminary hearing but argued that
the defense's preliminary hearing cross-examination excused the omission so that the prelim-
inary hearing direct could be used at trial. The Court's per curiam opinion said (without
dissent), iter aha, that defendant's inability to cross-examine declarant at trial may have
had a significant effect on the integrity of the verdict. In Green the majority indicated that
the full, searching, preliminary hearing cross by defendant's trial counsel justified the state's
use of testimony from preliminary hearing direct examination. But the Green preliminary
hearing declarant testified at trial, albeit incompletely and with bad memory. While in
Green the prior declaration was used to fill gaps in cross-examinable testimony, in Berger
there was no trial testimony. In Green, comparing in-trial and preliminary hearing directs
and crosses and assessing in-trial demeanor, the fact-finder might fairly evaluate the totality
such cases, positive significance may be given to a defense counsel's deci-

sion not to procure a prosecution's declarant who is amenable to defend-
42
ant's subpoena or similar process.
Apparently, even where the record of prior cross-examination is
available and declarant is physically present at trial, if declarant is not
fully amenable to in-trial re-cross-examination on the subject of his hear-
say the circumstances may indicate a reversible "denial" of due process or
the right to confrontation. 43 In any case, in light of surrounding circum-
of the declarant-witness's offerings. Relatedly, the Green declarant's trial statements and
conduct helped show the sufficiency of the prior cross. In Berger there was no way of know-
ing what might have been lacking in prior cross or what might have been profitably learned
by in-trial examination, because declarant was absent altogether. Moreover, in Green Justice
Harlan thought it crucial to the decision that the state had produced declarant at trial.
42. In Dutton v. Evans, defense counsel decided not to subpoena an amenable declar-
ant because counsel thought procuring declarant would not be in the best interests of his
client. While the plurality and Harlan opinions did not turn on this, they noted it as rele-
vant in discussing the relative harmfulness of absence of cross-examination. See 400 U.S. at
88, 88 n.19, 96, 96 n.3. The Dutton dissent insisted that Dutton had subverted the rule of
earlier cases, ie., the burden is entirely on the prosecution to procure declarant. 400 U.S. at
101-03, 102 nn.2 & 4. See, e.g., Berger v. California, 393 U.S. 314 (1969); Barber v. Page, 390
U.S. 719 (1968). When compared with Mancusi v. Stubbs, 408 U.S. 204 (1972), and Cham-
bers v. Mississippi, 410 U.S. 284 (1973), however, this aspect of Button can imply that a
prosecution's failure to procure declarant for cross-examination is not a constitutional wrong
requiring reversal, mistrial, or such, where it is not intentional misconduct or negligence that
arguably deprives defendant of meaningful cross-examination. Cf California v. Green, 399
U.S. 149 (1970); Schneble v. Florida, 405 U.S. 427 (1972). See also Harrington v. California,
395 U.S. 250 (1969). That is, because defense counsel's tactical decision not to procure is
evidence that cross-examination might well have been harmful, meaningless, or unavailing,
and/or because it reflects contributory negligence or a sharing of fault by the defense (rather
like constitutional dirty hands) or a sort of waiver of right, counsel's decision might contrib-
ute to a determination that the lack of cross-examination was not crucial, but peripheral at
most, or that it was harmless. See notes 44-47 tn/ra and surrounding text. (Arguably, it was
significant in Barber that defense counsel had not cross-examined declarant at the prelimi-
nary hearing, in justifiable reliance that declarant would be available for better cross at
trial.) But see Fay v. Noia, 372 U.S. 391 (1963) (defense counsel's tactics not necessarily
binding on defendant petitioning for habeas). See also notes 52-55 infra and surrounding
text.
43. See California v. Green, 399 U.S. at 168-69. There the record was inadequate for
determining whether special circumstances indicated a denial of confrontation-related due
process where declarant-witness had testified that he was unable fully and clearly to recall
the accuracy of his preliminary hearing testimony, to whose subject he had spoken differ-
ently at trial. Defendant's trial counsel had fully and fairly cross-examined declarant at the
preliminary hearing. The Court allowed that the full trial context (which was not before the
Court) might indicate a special problem. So far as appeared, however, the fact of declar-
ant's inconsistency, together with any "cross-examination" supporting declarant-witness's
defense-favoring trial position, was quite sufficient confrontation, especially in view of the
preliminary hearing cross-examination. Cf Minor v. Black, 527 F.2d 1 (6th Cir. 1975), cert.
denied, 427 U.S. 904 (1976); United States v. Marcus, 401 F.2d 563 (2d Cir. 1968), cert. denied,
393 U.S. 913 (1965). These cases address how a non-defendant witness's exerting his fifth
amendment right not to respond can be sufficient impeachment to make the later lack of
cross-examination opportunity insufficient to mandate striking direct testimony. But cf
Wray v. State, 154 Ala. 36, 45 So. 697 (1908); Louisville & Nashville Ry. v. Gregory, 284 Ky.
297, 144 S.W.2d 519 (1940); Chawkley v. Wabash Ry., 317 Mo. 782, 297 S.W. 290 (1927).
stances and the force of other, independent evidence addressing the issue
(or the accused's guilt), if either (a) the hearsay use is shown to have been
harmless 44 or (b) the hearsay's admission is shown to have been not "cru-
cial" or "devastating" but only "peripherally" significant and cumulative
at most, 45 then admission of the hearsay will not be reversible error de-
spite the extent and cause of declarant's absence or unamenability to
46
cross-examination (unless prosecutorial misconduct has been involved).
These address circumstances where cross-examining and losing impeachment are Hobson's
choices, such that direct must be striken or mistrial declared. If circumstances in Green
proved to be such that the jury most likely would prefer declarant's pretrial statement (e.g.,
because of declarant's physical condition at trial and his youthful awe of the trial process)
and defense counsel could do no more on cross than badger declarant, a mistrial might have
been required (especially if the prosecution over-reached on direct). See also discussion of
Berger v. California, 393 U.S. 314 (1969), supra note 42.
44. Schneble v. Florida, 405 U.S. 427 (1972); Harrington v. California, 395 U.S. 250
(1969). See Dutton v. Evans, 400 U.S. 74 (1970). In Dutton, two Justices (Blackmun and
Burger) thought harmless or harmless error the admission of hearsay that a plurality
thought not reversible because it was not "crucial" or "devastating" but "peripherally signif-
icant" or "cumulative" while it also bore sufficient "indicia of reliability." Inter alia, the
ambiguity of the relation of the Blackmun-Burger concurrence to the Dutton plurality opin-
ion (in which they joined), and the dissent's confusion (id at 108-09) over the relation of the
plurality opinions to the harmless error rule, suggest that Dutton stands for a variant of the
harmless error rule-a sort of harmless confrontation problem rule. Loper v. Beto, 440 F.2d
934, 937 n.8 (5th Cir. 1971), cert. denied on other grounds, 404 U.S. 821,judgment vacated on other
grounds, 405 U.S. 473 (1971), cites Dutton as being helpful in clarifying the meaning of harm-
less constitutional error. Grieco v. Meachum, 533 F.2d 713, 716-17 (1st Cir. 1976), cert. denied
sub nom. Cassesso v. Meachum, 429 U.S. 858 (1976), cites Dutton in saying that any error in
Grieco was harmless beyond reasonable doubt. United States v. Wilkerson, 469 F.2d 963
(5th Cir. 1972), cert. denied, 410 U.S. 986 (1973), is similar in the way it cross-references
Dutton and Schneble.
45. "Harmless" evidence use means: (a) evidence use that is "harmless beyond reason-
able doubt" in that other incriminating evidence on the same point was "so overwhelming"
as to render insignificant the evidence use in question, Harrington v. California, 395 U.S.
250 (1969); or (b) evidence use that is "harmless beyond reasonable doubt" in view of all the
circumstances (including the state's purpose and conduct respecting the evidence, the appar-
ent actual effect of the evidence use vis-h-vis the entire evidential and trial-conduct context,
and defendant's or his counsel's relevant behavior or apparent interest in disputing the evi-
dence), Schneble v. Florida, 405 U.S. 427 (1972). Arguably additional meanings may ob-
tain. See note 46 infra. See generally Field, Assessing the Harmlessness of Federal Constitutional
Error, 125 U. PA. L. REv. 15 (1976).
46. Dutton v. Evans, 400 U.S. 74 (1970). See Mancusi v. Stubbs, 408 U.S. 204 (1972).
Delli Paoli v. United States, 352 U.S. 232 (1957), involved a joint-trial use of a codefendant's
confession implicating defendant. Since the codefendant was not cross-examinable, the trial
court instructed the jury not to use his confession against the defendant. The United States
Supreme Court held that the confrontation problems had been cured. In Bruton v. United
States, 391 U.S. 123 (1968), Justice Brennan wrote a majority opinion overturning Delli
Paoli:
[Blecause of the substantial risk that the jury, despite instructions to the contrary,
looked to the incriminating extrajudicial statements in determining [defendant's]
guilt, admission of [codefendant's] confession in this joint trial violated [defend-
ant's] right of cross-examination . ...
391 U.S. at 126. In the same opinion, Justice Brennan also said:
[I]n many cases the jury . . . will follow . . . instructions to disregard such infor-
mation. Nevertheless, as was recognized in Jackson v. Denno . . . there are some
If, however, declarant is unavailable and defendant's trial counsel has not
contexts in which the risk that the jury will not follow instructions is so great,
and the consequences offailure so vital to. . . defendant, that the practical and human
limitation of the jury system cannot be ignored . . . . Such a context is presented
here, where the powerfully incriminating extrajudicial statements of a codefedant who
stands accused side-by-side with the defendant, are deliberatelyspread before thejug in a joint
trial. Not only are the incriminations devastating. . . but their credibility. . . suspect
. .. . The unreliabilty of such evidence is intolerably compounded when the alleged ac-
compice. . . does not testi5'.
Id. at 135-36 (emphasis added). In Harrington v. United States, 395 U.S. 250 (1969), where
a Bruton-type problem was held harmless, defendant, a white male, and three black male
codefendants were tried jointly for armed robbery and felony murder. The codefendants
confessed extrajudicially, incriminating defendant. Only one, Rhone, testified. Rhone sub-
mitted to cross-examination also. All three confessions were introduced, limited by a Bruton-
type instruction. Also, it was known that defendant had made self-incriminating oral decla-
rations. The Court held the incriminating evidence other than the unconfrontable confes-
sions so "overwhelming" that the confessions were harmless. Besides Rhone's cross-
examined testimony supplementing his confession and defendant's self-incriminating state-
ments, there were eyewitness and circumstantial testimonies. Relevant also were: (a)
Rhone's confession being supplemented as it was; (b) the cumulative nature of the unconfrontable
confessions; and (c) the fact that the problem confessions were weak because they could
identify defendant only by the color of his skin. The concurring opinion of Justice Black-
mun and Chief Justice Burger in Dutton cited Harrington in holding Dutton a harmless error
case. Justice Blackmun and Chief Justice Burger joined in Justice Stewart's Dutton plurality
opinion, and their concurring opinion used factual and theoretical bases for its harmless
error analysis that bear remarkable parallels to those of the plurality analysis. They de-
scribed the function of their concurrence as being additional to the plurality opinion, in
terms that suggest that their opinion merely placed a different label on the same analysis.
Compare 400 U.S. 74, 90-93 (1970) with id at 87-89.
One can hypothesize a synthesis of Bruton, llarrington, and Dutton-and Schneble v.
Florida, 405 U.S. 427 (1972)-that suggests that Dutton marks a subsidiary harmless error
rule specially for its genre of confrontation problems. The rule would follow these lines:
The confrontation clause was designed to assure that juries would use only properly tested
and duly limited evidence; the propriety may depend on the nature of the evidence or the
circumstances and mode of its use; the central problem is whether the declaration has been
put in a perspective that will not affect the jury disproportionately to the declaration's
proper bearing on the nondeclarant defendant, ite., the right and the wrong it is designed to
prevent are reciprocal and the wrong's qualitative gravity determines the right's instant
sensitivity.
In Jackson v. Denno, 378 U.S. 368 (1964), cited in Bruton (see quote supra), a suspect
confession could not be used constitutionally merely because the jury was instructed to disre-
gard it unless the jury first found without regard to its content that it was voluntary. While
theJackson rule was absolute because the wrong by nature did not vary with the context [see
Bruton v. United States, 391 U.S. 123, 138-41 (1968) (White, J., dissenting)], the Bruton rule
was not absolute because its source contemplated a great and hierarchical range of
problems. Thus, in Dutton, where the hearsay was not a codefendant's confession deliber-
ately spread before the jury and the accomplice declarant was not tried side by side with
defendant, and where the hearsay was not crucial or devastating but only cumulative and
peripheral and not unreliable, a limiting instruction may have helped to ameliorate the
confrontation problems raised by lack of opportunity to cross-examine declarant before the
trier of fact. The trial court could have commented on the danger of according the hearsay
more weight than its doubtful origin and credibility indicated (unless, as is true in some
states, the judge is barred from commenting on the weight of evidence). In Harrington, with-
out the instruction the error might not have been harmless. Had Dutton's declarant been
tried with defendant Evans, the absence of instructions on weight might have made use of
the hearsay reversible. If presence of declarant as a nontestifying codefendant added
had an earlier opportunity to cross-examine declarant infrajudicially in

the same cause and on the subject of declarant's hearsay, a harmful ad-
mission of declarant's not "uncrucial," not "undevastating," and not "pe-
47
ripherally" significant or cumulative hearsay will be a reversible error.
This may not be so where defendant is in some sense responsible for de-
clarant's absence or his unamenability to cross-examination. 48 But it
would remain so even though the hearsay bore adequate "indicia of relia-
'49
bility."
crucialness to the hearsay (making it less cumulative and peripheral), its "indicia of reliabil-
ity" might not have saved it despite a careful instruction as to its weight vis-i-vis defendant
Evans. In this light, review of Justice Stewart's position in these cases may be telling. In
Bruton he agreed with the majority's opinion in view of Jackson but, alternatively, added:
The confrontation clause made certain kinds of hearsay accusations "inadmissible against the
accused, rather than admissible for the little it may be worth," as where they are "at once so
damaging, so suspect, andyet so diffiult to discount, that jurors cannot be trusted to give such evidence the
minimalweight it logically deserves, whatever [the] instructions." 391 U.S. at 137-38 (emphasis
added). In Dutton Justice Stewart did not think the hearsay was so damaging, suspect, or
difficult to confine to its proper weight-its weak credibility resulting from defendant's
cross-examination of the reporting witness (absent in Bruton) rather than from inherent
weakness. See id at 87-90. He joined with the majority in Harrington. In both Jackson (pro-
defendant case) and Deli Pao/i (anti-defendant), he dissented. In Jackson he concurred in
Justice Harlan's dissent that described Delli Paoli's instruction as more difficult to follow
than Jackson's. With this, and with a view of note 44 supra, it should appear not unfair to
characterize Justice Stewart's Dutton opinion as reflecting a variant of the harmless error rule
of Harrington and Schneble v. Florida, both of which are cited in note 45 supra. Compare also
Chief Justice Burger's positions in Harrington (where he dissented, 395 U.S. at 255-57) and
Dutton (where he joined in plurality opinion and in the Blackmun concurrence). He may
have dissented in Harrington because, under the pre-flarrngton rule making the issue the
effect of tainted evidence on juries rather than the relative accumulations of tainted and
untainted evidence, Harrington's problems (e.g., multiplicity of unconfrontable confessions)
were neither curable by instruction nor beyond a reasonable doubt unlikely to influence the
jury. Because Harrington had become stare decisis before Dutton was heard, the Chief Justice
could join with Justice Blackmun for the reasons stated by Justice Stewart-for if the Dutton
hearsay was not crucial or devastating, but cumulative and peripherally significant, it was
arguably "overwhelmed" by the other, untainted evidence.
Concerning the issue as to when hearsay may go to a jury absent defendant's cross-
examination of declarant, the upshot of the preceding reconciliation of Harrngton, Schneble,
Bruton, and Dutton is this: Some classes of hearsay use will be presumed harmful confronta-
tion clause violations (Bruton, Pointer, Douglas, Barber, and Berger); others may be rebuttably
presumed harmless (Green); still others may be admissible so long as practically confined to
their harmless worth (Dutton); and yet others may be proved harmless under the totality of
circumstances (Harrington, Schneble, and Mancusi).
47. Compare Chambers v. Mississippi, 410 U.S. 284 (1973), Dutton v. Evans, 400 U.S.
74 (1970), Bruton v. United States, 391 U.S. 719 (1968), and Douglas v. Alabama, 380 U.S.
415 (1965) with California v. Green, 399 U.S. 149 (1970), Berger v. California, 393 U.S. 314
(1969), Barber v. Page, 390 U.S. 719 (1968), and Pointer v. Texas, 380 U.S. 400 (1965).
48. Compare note 42 supra and accompanying text with Gale v. State, 135 Ga. 351, 69
S.E. 537 (1910) (standard subconstitutional rule).
49. In Dutton v. Evans, 400 U.S. 74 (1970), the plurality held that admission of non-
crucial, nondevastating, cumulative, peripherally significant hearsay was not reversible error
since the hearsay bore indicia of reliability. Since the hearsay had little or no impact, it did
not present a relatively strong need for having its credibility tested. Thus its indicia of
reliability saved its admission from causing reversal. This was specially so because defend-
ant's trial counsel tactically eschewed subpoenaing declarant and because defense counsel's
Indications are that the fact that the declaration is a "recognized" or

traditional exception to the hearsay rule would not in any case be suffi-
cient to immunize the hearsay's admission from invalidation on confron-
tation-denial or related due process grounds. 50 That a declaration is
"necessary" to a prosecution's case apparently would not justify its admis-
sion, but it would suggest that its use would be "crucial" or, perhaps,
"devastating" enough to be issuable if declarant is not amenable to ade-
51
quate infrajudicial cross-examination by defendant's trial counsel.
Finally, the burden of argument--of establishing admissibility or
nonreversibility despite lack of opportunity for cross-examination-ap-
actual cross-examination of the witness who reported the hearsay (and of related testimony
of other witnesses) had accomplished substantial impeachment of the declaration's incrimi-
nation of defendant. It was virtually inconceivable that cross-examination of declarant
would have affected the hearsay's credibility substantially in this context. The effective
weakness of the hearsay made possible the significance of its indicia of reliability. The indi-
cia were necessary, but insufficient. See id 84-89. At one point the plurality opinion says
that the indicia of reliability were such as "have been widely viewed as determinative of
whether a statement may be placed before the jury though there is no confrontation." Id at
89. But this is said in conjunction with a reliance on California v. Green, 399 U.S. 149
(1970), which cannot be read as supporting admission of non-cross-examinable hearsay.
Moreover, the issue of what hearsay may be placed before the jury without confrontation is
a subconstitutional province of the hearsay rule. See Dutton v. Evans, 400 U.S. 74, 94-95
(1970) (Harlan, J., concurring and approving a quote from J. WIGMORE, EVIDENCE,
describing the point of the confrontation clause as determining not the admissibility of hear-
say, but rather the propriety of the process by which hearsay is or is not subjected to cross-
examination). Relevantly, the plurality opinion twice recognized that the hearsay rule-
with its primary concern for reliability-is functionally separate from the confrontation
clause. Id at 81-82, 86, 86 n. 17. Further, the plurality did not reach the reliability question
until it first satisfied itself as to the relative harmlessness of the hearsay's use (its "noncrucial-
ness," etc.). Additionally, two Justices joining in the plurality opinion found the hearsay
patently incredible--so that absence of cross-examination was harmless. Id 90-92. Justice
Harlan, concurring on pure due process grounds, was moved by the hearsay's apparent in-
significance as much as its relative reliability. Id at 99-100. The four dissenters, two of
whom are still Court-members, did not think "indicia of reliability" a valid factor. Id at
109-10. See id at 103-05. No Supreme Court case before or after Dutton holds "indicia of
reliability" sufficient to justify hearsay use without cross-examination.
50. See Dutton v. Evans, 400 U.S. 74 (1970), and California v. Green, 399 U.S. 149
(1970), which establish that the hearsay rules of various jurisdictions and the constitutional
interests in the confrontation and due process clauses are separate though philosophically
related. See also Pointer v. Texas, 380 U.S. 400 (1965), which invalidated use of hearsay that
would have been exempted from the proscription of the local hearsay rule by way of a
recognized, traditional exception. The exception in Pointer was similar to that in Green,
where the Court, approving Potter,did not hold the exception exempted from constitutional
limitation. Passing judgment on hearsay admitted under another recognized hearsay rule
exception (that for co-conspirator admissions), a majority of Justices in Dutton would not
equate the hearsay rule exception with constitutionality, and the plurality specifically in-
sisted on treating hearsay as generically a case-by-case problem.
51. California v. Green, 399 U.S. 149 (1970), indicates that such "necessity" does not
justify admission. Dutton v. Evans, 400 U.S. 74 (1970), Bruton v. United States, 391 U.S.
123 (1968), Douglas v. Alabama, 380 U.S. 415 (1965), and Pointer v. Texas, 380 U.S. 400
(1965), indicate that such necessity may demonstrate unconstitutional impact on the fact-
finding process.
pears to be on the government, 52 unless the indices of nonreversibility

appear abundantly clear. 53 Even where nonreversibility appears patent,
if defendant makes the matter issuable, the burden of argument returns to
the government. 54 Where the government is benefited by a presumption
of the reliability or trustworthiness of the hearsay (or some other index of
its allowability), the government must demonstrate that the presumption
has substantial support in preponderant social fact if defendant legiti-
55
mately challenges the presumption.
52. Pointer v. Texas, 380 U.S. 400 (1965), began setting precedent along these lines,
insofar as absence of declarant from trial seemed automatically equated with confrontation
denial where uncross-examined declarant's preliminary hearing testimony was used at trial.
See id. at 407. Douglas v. Alabama 380 U.S. 415 (1965), furthered the trend, in that the
Court presumed that the jury had given cogency to the prosecutor's reading of the extrajudi-
cial confession of defendant's supposed accomplice. Id. at 419-20. (At 419 the Court says
defendant was "plainly" denied confrontation and presumes the prosecutor's reading was
treated as testimony.) Berger v. California, 393 U.S. 415 (1969), and Barber v. Page, 390
U.S. 719 (1968), add strongly to this trend, in that they flatly presume that failure of a
prosecutor to produce declarant for in-trial cross-examination constitutionally injures defen-
dant even though defendant had exercised an opportunity to cross-examine declarant in-
frajudicially on court record at the time of declarant's declaration. Mancusi v. Stubbs, 408
U.S. 204 (1972) and California v. Green, 399 U.S. 149 (1970), did not alter the thrust of
Barber and Berger, since they depended on findings of special facts making patently appar-
ent, in the absence of countervailing evidence, that confrontation had been had. Though
the plurality opinion in Dutton v. Evans, 400 U.S. 74 (1970), treats the hearsay-confronta-
tion problem as dependent on the facts of particular cases, it does not entertain the question
of whether a substitute for confrontation (apparent reliability of the hearsay) was present
until it indicates the patency of the lack of impact (or harm) in the use of the hearsay.
Chambers v. Mississippi, 410 U.S. 284 (1973), arguably is written in pure due process, case-
by-case analysis terms. See note 36 supra. But the issue was not clearly one of confrontation
denial (disallowance of cross-examination of prosecution-related witness that defendant called
to the witness stand because the prosecutor had not). Cf note 55 infra and accompanying
text.
53. See Schneble v. Florida, 405 U.S. 427 (1972); Mancusi v. Stubbs, 408 U.S. 204
(1972). Cf Nelson v. O'Neil, 402 U.S. 622 (1972). Compare Dutton v. Evans, 400 U.S. 74
(1970) with California v. Green, 399 U.S. 149 (1970). See also Donnelly v. DeChristoforo,
416 U.S. 637 (1974).
54. See Mancusi v. Stubbs, 408 U.S. 204 (1972), where the Court's rejection of defend-
ant's confrontation denial claim appeared to depend partly on the inability of defendant to
suggest any reason whyfurther cross-examination could have affected the case. Compare Cali-
fornia v. Green, 399 U.S. 149 (1970), where, though actual confrontation appeared on the
incomplete record to have been abundantly obtained, the Court allowed that facts sug-
gesting special circumstances would create a new question under earlier cases (see note 52
supra) that had put the burden of argument on the government. Cf note 55 infla and re-
lated text.
55. In Dutton v. Evans, 400 U.S. 74 (1970), the plurality and Justice Harlan (concur-
ring) appeared to take judicial notice of the presumable reliability of the hearsay there. See
id. at 88-89, 99. From all that appears in the record, however, defendant had not made an
issue of the matter. Had defendant done so, the government should have been put to the
task of demonstrating the actual reliability of the hearsay-for reasons developed 1nfia Parts
IIIAI and IIIA2. Compare Mancusi v. Stubbs, 408 U.S. 204 (1972), where, according to the
dissent, the majority had derived a presumption of declarant's unamenability to the gov-
ernment's procuring him, and where the majority presumed, on a record making confronta-
tion adequacy patent, that more confrontation would have added nothing. There,
defendant did not begin to marshal any reason to suspect the "presumptions."
The obscurity of many Supreme Court decisions in this field and the
ambivalent relationships among the many opinions of the nineteen recent
Justices who have written in the area make generalization difficult. But
the following are fair summaries: Allowance of a prosecution's not un-
duly prejudicial trial use of hearsay of an absent or incompletely con-
frontable declarant may be affirmable, where previously defendant's trial
counsel fully and searchingly cross-examined declarant infrajudicially in
the same cause and as to the same declaration or subject, provided declar-
ant's absence either was not the government's fault or was defendant's
choice. But where the absent or incompletely confrontable declarant has
not previously been so cross-examined, government use of his hearsay is a
reversible denial of confrontation or due process, unless: (a) its use ap-
pears or is shown to be harmless beyond reasonable doubt; or (b) the hear-
say is demonstrably reliable and its use was not crucial or devastating but
only peripherally significant and cumulative-so that the jury is not de-
prived of a proper basis for ascertaining the truth.
I must, however, offer a caveat: Some Justices who contributed to
these developments are no longer on the Court, 56 and not all replace-
ments have been successors to their predecessors' positions or clear in their
own views. 57 One recent majority opinion seemed to acquiesce in old
dicta supporting the dying declaration rule as a venerable, well-recog-
nized exception to the hearsay rule. 58 The most important case, Dutton v.
Evans,59 has no majority opinion, and two concurrers in its cloudy plural-
ity opinion joined in a separate concurrence that added ambiguity. 60 The
56. Justices Black, Burton, Clark, Douglas, Fortas, Frankfurter, Goldberg, Harlan, and
Reed, and Chief Justice Warren.
57. E.g., Justice Powell, philosophically close to Justice Harlan on the issues of incor-
poration and federalism, replaced Justice Black, philosophically opposite on the question of
incorporation and distinct respecting the issue of federalism. Justice Blackmun has not yet
written an opinion developing a view of confrontation. Justice Stevens, who replaced Jus-
tice Douglas, has not participated in a confrontation decision and (unlike Justice Douglas)
tends to care more about facts than about theories of confrontation and incorporation.
58. Pointer v. Texas, 380 U.S. 400, 407 (1965), cting Mattox v. United States, 156 U.S.
237 (1895), and Dowdell v. United States, 221 U.S. 325 (1911). See also California v. Green,
399 U.S. 149, 182 (1970) (concurring opinion citing other old cases). Malox and Dowdell
(like all other old Court opinions mentioning dying declarations) did not involve dying dec-
larations, but alluded to the dying declaration exception as too established to reconsider. In
Bruton v. United States, 391 U.S. 123, 128 n.3 (1968), the Court withheld decision on the
current constitutionality of recognized exceptions like that for dying declarations, no such
hearsay having been at issue. In addition, see note 14 supra.
59. 400 U.S. 74 (1970).
60. E.g., while the concurrers (Justice Blackmun and Chief Justice Burger) say they
agree fully with the plurality opinion, which found it inconceivable that cross-examination
of declarant would have impeached either the honesty of the declaration reported or declar-
ant's recollection of the events that his declaration implicitly addressed, they also say they
found the hearsay harmless because it was basically incredible. Compare Dutton v. Evans,
400 U.S. 88-89 (1970) with id. at 91-92. See also 400 U.S. at 103 & 103 n.5 (dissent noting
same ambiguity, but referencing court of appeals opinion approved in Blackmun-Burger
fifth Justice concurring in the Dutton result-Justice Harlan--disdained

the principles and standards of the plurality opinion and the other con-
62
currence 6 1 and adopted some important views of the four-man dissent.
Happily, hope obtains in the federal circuits. There is a growing
mode of circuit judge opinion in line with the author's sketch, and the
Court has not broken new ground in this field since 1973.
B. Hearsay and Confrontation in the Circuit Courts

Since Dutton, the federal circuits often have considered whether trial
use of an unconfronted declarant's hearsay may be exempt from confron-
tation clause limits because the hearsay fits a recognized, traditional ex-
ception to the hearsay rule. Only three circuits (1st, 3d, and 4th)
63
confidently answer the question affirmatively.
In United States v. Clayton,64 there was evidence that, in admissions to
federal agents posing as narcotics buyers, a co-conspirator had identified
defendant as a participant in the crime at issue. Citing Krulewitch v. Un'ted
States,65 the First Circuit panel held the evidence admissible under the co-
conspirator exception. The panel "reasoned" that the exception was
"deeply imbedded in usage, grounded in the presumed reliability of ad-
missions against interest [sic], and safeguarded [sic] by the requirement of
concurrence rather than the concurrence); id at 93-94 (Harlan, J., concurring and approv-
ing this aspect of dissent). See also id at 96 (Harlan, J., concurring and charging a failure of
plurality opinion to form comprehensible, workable standards); id. at 103-110 (dissent, to
same effect); note 44 supra.
61. Dutton v. Evans, 400 U.S. 93-100 (1970) (a pure due process opinion). See note 60
supra.
63. Each of the three cases from these circuits discussed in the text following this note
is a leading case. But each is badly reasoned, and the Fourth Circuit decision suffered a
solid dissent. Also, in the First and Third Circuits there are cases pointing away from an
equation of recognized hearsay rule exception and confrontation clause exemption. In
Grieco v. Meachum, 533 F.2d 713 (lst Cir. 1976), cert. denied sub nom. Cassessa v. Meachum,
429 U.S. 858 (1976), in relation to Dutton's concern for the case-by-case impact of hearsay
use, the court made a small point of the minimal importance of the hearsay in the context of
other evidence on the same issue. Id at 716-17. Cf id, where, citing Dutton, the court says
the hearsay was harmless beyond reasonable doubt. But see Ottomano v. United States, 468
F.2d 269 (1st Cir. 1973), cert. denied, 409 U.S. 1128 (1973), citedin Green supra. See also United
States v. Martorano, 557 F.2d 1 (1st Cir. 1977) (court treated as a nonconstitutional issue the
admission of hearsay in a recorded conversation between victim and codefendant cor-
roborating a recorded conversation between victim and defendant incriminated by the hear-
say in the first conversation, where defendant limited his attack on the hearsay to the
sufficiency of proof of the conspiracy required to be proved to obtain a co-conspirator excep-
tion). In United States v. Armocida, 515 F.2d 29 (3d Cir. 1975), cert. denied, 423 U.S. 858
(1975), unclear on whether the co-conspirator exception was a constitutional problem under
Dutton, the court called the declaration non-hearsay and cited the Dutton plurality opinion.
But see United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert. denied, 405 U.S. 936
(1972), and citations therein.
64. 450 F.2d 16 (1st Cir. 1971), cert. denied, 405 U.S. 975 (1972).
65. 336 U.S. 440 (1949), cited at 450 F.2d 20 (Ist Cir. 1971).
a prima facie agreement."'66 The relevant holding in Krulewitch did not

involve a constitutional issue. Dutton did not validate generally any co-
conspirator exceptions. The exception, in any event, is not for "admis-
sions against interest" (presumably meaning declarations against inter-
est), but for conspirator admissions presumed by operation of law (not upon
prima facie showing) to have been adopted by every nondeclarant co-
conspirator. 67 The requirement of prima facie showing of "agreement"
relates to need for a predicate fact of conspiracy, not the fact of adoption
of declarations (by implied or apparent authority or otherwise). 68 It ap-
pears the Clayton panel understood neither Krulewitch nor Dutton. If Clay-
66. 450 F.2d at 20 (lst Cir. 1971).

67. As to the "adoption," see 4 J. WIGMORE, EVIDENCE §§ 1069-75 (Chadbourne Rev.
1972); C. MCCORMICK § 269 (1972). See also J. WIGMORE, supra, § 1048; C. MCCORMICK,
supra, § 262; E. MORGAN, BASIC PROBLEMS IN EVIDENCE 265 (1962). "Adoption" here can
be seen as imputed responsibility implied by operation of the substantive law of conspiracy.
See WIGMORE, supra, § 1079 (noting genesis of co-conspirator exception in law of conspiracy
rather than in law of evidence); Advisory Committee's Note to Rule 801(d)(2)(E), FED. R.
EVID. (1975); Levie, Hearsay and Conspiracy, 52 MICH. L. REV. 1159, 1163-67 (1954); Com-
ment, The Hearsay Exceptionfor Co-Conspirators' Declarations, 25 U. CHI. L. REV. 530, 533-35
(1958).
68. To the extent that the co-agency concept of conspiracy is supposed to support the
treatment of the co-conspirator's admission exception as a form of adoptive admission, the
exception would be illogical, at least ozr-d-vir evidence case law on other forms of adoptive
admissions or admissions by agency. A principal is not bound by his agent's admission of
the principal's liability or fault merely because of the agency relation, but must have spe-
cially "authorized" the admission---either by delegating in advance appropriate authority or
by approving or adopting the admission after the fact. Compare, e.g., Northern Oil Co. v.
Socony Mobile Oil Co., 347 F.2d 81 (2d Cir. 1965), Dilley v. Chesapeake & 0. Ry., 327
F.2d 249 (6th Cir., 1964), cert. denied, 379 U.S. 824 (1964) and McNicholas v. New England
Tel. & Tel., 196 Mass. 138, 81 N.E. 889 (1907) with Pekelis v. Transcontinental & Western
Air, Inc., 187 F.2d 122 (2d Cir. 1951), Madron v. Thompson, 215 Or. 513, 419 P.2d 611,
reheartngdemed, 423 P.2d 496 (1967) and Rudzinski v. Warner Theatres, Inc., 16 Wis. 2d 241,
114 N.W.2d 466 (1962). See 4 J. WIGMORE, EVIDENCE § 1078 (Chadbourne Rev. 1972); C.
MCCORMICK, EVIDENCE § 267 (2d ed. 1972). But see Advisory Committee's Note to Rule
801(d)(1)(D), FED. R. EViD. (1975). Doubtless, the understanding of co-conspirators is that
they shall cover up, not expose, each other's crimes. In such curcumstnaces, should a co-
conspirator unilaterally disclose all of the facts of his conspiracy, his admission can prove, as
against the declarant co-conspirator, that there was a conspiracy in which he participated,
or that he and an unnamed other were conspirators, but not, as against another named, that
the other was a co-conspirator. Cf Deike v. Great A & P Tea Co., 3 Ariz. App. 430, 415
P.2d 145 (1966). If one co-conspirator's habifiy for another co-conspirator's statements is a
matter of a responsibility imputed by the criminal law of conspiracy (see note 67 supra), then
still the requirement of a prima facie showing of conspiracy would not relate to admissibility
under an adoption by agency, delegation, or principal's approval theory. Rather, it would
be a prerequisite for imposition of a substanti/e liability. For more on the substantie law
requirement of a showing of conspiracy as a precondition of use of co-conspirators' state-
ments, compare W. LAFAVE AND A. SCOTT, CRIMINAL LAW §§ 62 & 65 with R. PERKINS,
CRIMINAL LAW 633-34 (1969), Logan v. United States, 144 U.S. 263 (1892), United States v.
Bolden, 514 F.2d 1301 (D.C. Cir. 1975), States v. Leonard, 494 F.2d 955 (D.C. Cir. 1974),
remandingfor new trial,thejudgment in which was afdin 523 F.2d 1177 (1975) and note 67 supra.
But see WIGMORE, supra, § 1080a, suggesting that the only currently legitimate basis for
exceptions for vicarious admissions is the reliability arising from the fact that the admission
is against interest.
ton assumed that Dutton set a presumption favoring co-conspirator

admissions, 69 it was wrong.70 Deep imbedding in usage is insufficient. 7'
In United States v. Weber, 72 defendant was convicted for participating
in a three-way conspiracy. One alleged co-conspirator had testified; but
the other had died before defendant's trial. The testifying alleged co-con-
spirator testified that the dead co-conspirator had admitted that the latter
had transacted business with defendant. He also told of his own knowl-
edge of defendant's involvement. Other evidence also connected defend-
ant with the alleged conspiracy. Citing California v. Green, 73 and Dutton,
the Third Circuit panel held that the dead alleged co-conspirator's state-
ments were admissible because: (a) such declarations were traditional
hearsay exceptions, exempt from confrontation clause limitation; (b) the
Supreme Court did not question the validity of such exceptions; (c) Green
did not outlaw them; (d) the Dutton plurality only required that defend-
ant be able to cross-examine the witness to the declaration; and (e) declar-
ant's death had made his hearsay necessary. This analysis was superficial
and specious. Dutton's plurality opinion allowed that such cross-examina-
tion was sufficient only where the hearsay was peripheral, well corrobo-
rated, and not likely to be affected by cross-examination of declarant.
Also, the Dutton declarant had been amenable to defense counsel's sub-
poena. About the supposed "necessity" arising from the death of a declar-
ant, Green said this: (a) the necessity is only a prosecution's "need" for
relevant evidence rather than a jurisprudential or logical imperative; (b)
it was not a necessary inference that a dead declarant would not likely
change his declaration on the witness stand; (c) a declarant's death might
justify using his declaration if uttered infrajudicially, under oath, and
subject to actual, searching cross-examination by defendant's trial coun-
sel. 74 Though the Weber panel did not understand the cases, the Weber
75
outcome can be squared with Green and Dutton.
69. Meaning an irrebuttable presumption that a co-conspirator declaration admissible

under the hearsay rule is exempted from the confrontation clause's effect.
70. See note 50 supra and accompanying text.
71. Cf notes 362-67 infra and related text. Compare notes 39, 43, 45, 47, & 50 supra and
related text with notes 52-55 supra and related text.
72. 437 F.2d 327 (3d Cir. 1970), cert. denied, 402 U.S. 932 (1971).
73. 399 U.S. 149 (1970), cited at 437 F.2d 337-339 (3rd Cir. 1970).
74. See 399 U.S. at 166-68 and n. 16.
75. The Weber evidence was used merely as proof of the fact of a conspiracy, not of
defendant's conspiratorial or substantive guilt. In Datton the hearsay was used to establish
defendant's guilt as the principal perpetrator of a murder aided in by declarant. Thus the
Weber hearsay was less harmful than Dutton's. Moreover, in Dutton there was no charge of
conspiracy, since the state recognized no such crime. The conspiracy issue arose from a
strange local evidence rule. Additionally, there was doubt whether there was a conspiracy in
any sense of the word. See Evans v. State, 222 Ga. -, 150 S.E.2d 240, 251 (dissent); Dutton
v. Evans, 400 U.S. 74, 106 n.8 (1970) (dissent); Williams v. Dutton, 400 F.2d 797, 799 (5th
Cir. 1968), cited in Evans v. Dutton, 400 F.2d 826 (5th Cir. 1968), as stating facts of Evans's
In the Fourth Circuit case of UntIedStates v. Payne,76 a two-judge ma-

jority held admissible against several defendants a codefendant's written
confession. All were alleged co-conspirators; but the confession was
treated as a prior inconsistent statement. Declarant confessed to attend-
ing law enforcement officers, incriminating both declarant and his code-
fendants. When declarant testified, he claimed he could not recall either
his having pleaded guilty (which he did not deny) or his having written a
confession. Nor could he recall the events his confession addressed. The
majority thought Payne raised outright a question Green reserved: whether
declarant-witness's apparent total memory-loss deprived defendant of his
fourteenth amendment right of confrontation where the witness's incrimi-
nating pretrial declaration was allowed though made extrajudicially
without oath or amenability to cross-examination. The majority held
that defendant's right had not been violated.
The majority relied heavily on Justice Harlan's concurrence in Green:
the confrontation clause required only that the prosecution produce its
declarants at trial. 77 There was only a difference in degree between Green
and Payne. 8 Declarants in both were available for cross-examination on
some relevant points as well as on bias and like matters. It did not matter
that the Payne declarant could not verify under oath the writing said to be
his confession. 79 Nor did it matter that Payne differed from Douglas v. Ala-
bama8° and Bruton v. UnitedSlates8 ' only in that declarant was partly avail-
82
able on some extrinsic points.
case (describing Evans as an accomplice at all times). Since Williams (declarant in Dutton)
joined Evans in an unforeseen, spontaneous act of killing unrelated to Evans's earlier, short
complicity in the substantive theft planned only by Williams and another, it is arguable that
Evans, as murderer, was not a conspirator but only a principal among nonconspiratorial
accomplices. Compare W. LAFAVE AND A. SCO-Tr, CRIMINAL LAW § 62 with id § 65. See also
B. PERKINS, CRIMINAL LAW 633-34 (1969). In this view, Webers hearsay seems even less
harmful than Dutton's. Also, in this view the Weber declaration was not a hearsay accusa-
tion-the kind of evidence (California v. Green, 399 U.S. at 156-59) addressed by the con-
frontation clause. Not proof of defendant's guilt, it was not an accusation. Not necessarily
used to prove the truth of its content (because arguably the statement's utterance was a
conspiratorial verbal act, an operative fact of crime), the declaration was arguably non-
hearsay. Further, the Weber "hearsay" was well corroborated by confrontable witnesses and
evidence and peripherally significant as to defendant's guilt (if significant at all). Compare
Dutton v. Evans 400 U.S. 74, 87 (1970) (plurality), 92-93 (concurrence) and Spears v. Circuit
Court, 517 F.2d 360 (5th Cir. 1975) (discussed in text infia) with discussion of the
Martorano case, supra note 63.
76. 492 F.2d 449 (4th Cir. 1974), cert. denied, 419 U.S. 876 (1974).
77. Id at 453-54, citing 399 U.S. at 188-89.
78. Id. at 454.
79. Id. But compare Rio Grande Southern Ry. v. Campbell, 55 Colo. 493, 136 P. 68
(1913) with Hodas v. Davis, 203 App. Div. 297, 196 N.Y.S. 801 (1922). See also notes 83-88
tnfra and related text.
80. 380 U.S. 415 (1965).
81. 391 U.S. 123 (1968).
82. The majority did not cite Douglas and Bruton, despite the fact that those two cases
This reasoning was weak. As the majority knew,8 3 Justice Harlan's

Dutton opinion had repudiated his Green concurrence. In Dutton, he
viewed the right of confrontation as a function of relative necessity of
cross-examination.3 4 This destroys one of the majority opinion's linch-
pins. Judge Widener's Payne dissent weakened others.
Judge Widener argued in Payne, inter aha, that Green and Pointer v.
Texas8 5 required exclusion of the confession because it had not been made
infrajudicially under oath and subject to virtually the same cross-exami-
nation as would have been undertaken at trial.8 6 In Pointer it was not
adequate that declarant's statement had been taken at a preliminary
hearing because the timing and circumstances did not allow for sufficient
cross-examination. In Green, where a hearsay use was held facially allowa-
ble, the declaration had been made infrajudicially and under oath and
also subject to the actual, searching cross-examination of defendant's trial
counsel. The difference between the confrontations in Pointer and Green
was one not quantitative but qualitative and crucial. Since the Payne de-
clarant's extrajudicial confession to government agents had never been
subjected to any cross-examination, its use patently offended the confron-
tation clause. The Payne majority had misfocused on the impeachability
of the witness, when it should have addressed the examinability, effect,
circumstances, and utility of the declaration. 87 Douglas, approved in
Green, had held inadmissible a written, police-garnered confession of a
suspected accomplice who "took the fifth" at trial. If cross-examination
for bias or the like and the spectacle of claimed partial amnesia were ade-
quate confrontation respecting the Payne witness's hearsay, what of the
taking of the fifth and the possibility of bias impeachment in Douglas?88
involved non-cross-examinable codefendant confessions given during police interrogation,

despite the fact that the Payne declarant could be cross-examined only on matters other than
his confession, and despite the fact that Bruton and Douglas were approved and distinguished
in Green, 399 U.S. 149, 162-64 (1970) and Green allowed that Green-type hearsay uses could be
confrontation denials under special circumstances arguably like Payne's (id at 168-70 and see
notes 43 & 54 supra and related text).
83. The majority cited Justice Harlan's Dutton opinion. United States v. Payne, 492
F.2d 449, 454 (4th Cir. 1974).
84. The majority seemed to disregard apparent unanimity among the Dutton Justices
respecting this broad principle. See id at 452-55. See alsoid at 458, 462-64 (dissent). Justice
Harlan may have differed with the rest of the Dutton Court in that he appeared to hold
cross-examination of the witness to the Dutton declaration sufficient. See id.at 464 (dissent).
Compare Dutton v. Evans 400 U.S. 74, 94-95 (1970). But see also492 F.2d at 462-64 (dissent),
and note that the Payne dissent thought the majority of Justices sitting in Dutton would not
always equate cross-examination and confrontation but would view cross-examination as a
lesser, included interest. 492 F.2d at 463.
85. 380 U.S. 400 (1965).
86. Compare United States v. Payne, 492 F.2d 449, 465 (4th Cir. 1974) with id.at 460-.
64.
87. Id at 463-64.
88. Compare California v. Green, 399 U.S. 149, 168-70 (1970) and Douglas v. Alabama,
252 ARKANSAS LAW REVIEW (Vol. 33:227
Elsewhere the view has been very different. Clearly in six other cir-
cuits-the.Second, 89 Sixth, 9° Eighth,9 1 Ninth, 92 Tenth, 93 and District of
380 U.S. 415 (1965), approvedin 399 U.S. 149, 162-63 (1970) with United States v. Payne, 492
F.2d 455, 457-58, 463-64, and 463 n.43 (4th Cir. 1974). The type of impeachment available
in Payne was available in Douglas. But the confrontation clause of Douglas promised more
than collateral character attacks and extrinsic contradictions. It should not have mattered
that such indirect impeachment could have been accomplished with greater facility in Payne:
the "devastating" effect of a statement given to law officers who have advised declarant of
his rights is different only in insignificant degree from that of an infrainterrogation confes-
sion to police. Unlike declarant in Green, who, as the Payne majority knew (492 F.2d at 453),
had had some memory of his hearsay, declarant in Payne had not given his declaration in-
frajudicially under oath and subject to rigorous defense cross-examination. Nor did the
Payne majority treat the issue of whether the Payne hearsay was "crucial" or only peripher-
ally significant and cumulative as the Dutton plurality required. Judging from the Payne
report (United States v. Payne, 492 F.2d 449, 450-51 (4th Cir. 1974)), one can find the
hearsay at least as crucial and devastating as that in Douglas: it directly asserted a past fact
of defendant-appellant's criminal conduct material to the case and appeared to be the prin-
cipal or only evidence of the fact; and it was the putative statement of the guilty-pleading
codefendent and brother of defendant-appellant. Compare 380 U.S. 415 and 391 U.S. 123
wt'h 400 U.S. at 87-88. Compare Bruton v. United States, 391 U.S. 123 (1968). The Payne
majority did pay some heed to the "reliability" concern that the Stewart and Harlan opin-
ions in Dutton shared. Compare 492 F.2d at 452, 454 with 400 U.S. at 88-89 and id at 99-100.
But, under the Dutton plurality view, attention to "indicia of reliability" would be (along
with consideration of whether the hearsay was "crucial" or "devastating") specially impor-
tant because the hearsay did not fit a generally recognized exception (see 492 F.2d at 455-57).
See 400 U.S. at 86, 89-90. See also id at 99- 100 (Harlan, J., concurring). Not as in Green, the
lack of prior, infrajudicial cross-examination and the suspect circumstances of the declara-
tion indicated careful scrutiny. See 400 U.S. at 87-88. Compare id. at 93, 98, Harlan, J.,
stating "as a matter of due process that a confession of an accomplice resulting from formal
police interrogation cannot be introduced as evidence of the guilt of an accused, absent some
circumstances indicating authorization or adoption," and citing Douglas. The Payne hearsay
was an accomplice's, made in formal Secret Service interrogation and neither signed when
made nor adopted later but rather disclaimed at trial in sworn testimony! The Payne major-
ity not only did not cite Douglas, it disregarded the preceding Harlan quote.
89. Compare United States v. Medico, 557 F.2d 309 (2d Cir. 1977) and United States v.
Puco, 476 F.2d 1099 (2d Cir. 1973), cert. denied, 414 U.S. 844 (1973) with United States v.
White, 553 F.2d 310 (2d Cir. 1977), cert. denied, 431 U.S. 972 (1977) and United States v.
Glasser, 443 F.2d 994 (2d Cir. 1971), cert. denied, 404 U.S. 854 (1971). Glasser clearly fits the
text proposition. Puco's effect is obscure, but more likely than not in line with the text.
Defendent-appellant petitioned for rehearing and rehearing en banc. The government wel-
comed the petitions because it felt the panel decision applying Dutton to the federal co-
conspirator exception confounded the law of evidence and undermined the proper pursuit of
criminal justice. Having participated in the first hearing on the case, Senior Judge Lum-
bard dissented from denial of rehearing, on grounds like the government's position-that
Dutton did not affect the federal exception for co-conspirator admissions made during pursu-
ance of the conspiracy where the fact of the conspiracy has been independently established,
and that the Dutton plurality exempted from its case-by-case analysis rule that federal excep-
tion. Judge Mansfield dissented without opinion. Chief Judge Friendly, joined by Judges
Hays and Timbers, wrote a dissenting opinion essentially agreeing with Judge Lumbard and
the government. Since "no majority" of the regularly serving members of the court en hanc
wanted a hearing en banc, the court ordered the hearing denied. More important is the
majority's equivocation over the relation between the "crucial" and "devastating" concerns
of Dutton and its "reliability" requirement: In its first opinion, the panel expressly applied
both the "reliability" and the "crucial/devastating" tests to use of a co-conspirator admis-
sion. In its opinion denying rehearing, it said:
Columbia 94-and quite arguably in the two remaining-the Fifth 95 and
In referring to the latter two criteria, we were acting out of caution-perhaps with
an excess of that quality-to satisfy ourselves that the declarations ... were prop-
erly admitted regardless of how broadly Dutton might be construed. We did not
hold that Dutton had to be so expansively construed. . . . Specifically, we. . . do
not hold that a trial judge must find, before admitting a co-conspirator's declara-
tion, that it is not "crucial" to the government's case or "devastating" to the de-
fense.
United States v. Puco, 443 F.2d 994, 1107 (2d Cir. 1971) (emphasis in original). Then it
seemed to suggest that the only problem in co-conspirator admission cases is "reliability,"
but that in most cases reliability would follow from the admission's meeting the federal
exception's requirements. Id. at 1107-08. Though it had cited Green in its first opinion, the
panel made no reference to it in its second. Interestingly, however, its second opinion said:
[W]e note that Puco's counsel apparently intends to petition . . . for certiorari. If
the government desires a further clarification of the implications of Dutton for the
co-conspirator rule, it can choose to support Puco's petition in order to obtain
guidance from the most reliable source ....
Id at 1108. Apparently, the majority could not reach certainty as to the extent that various
Dutton considerations apply to the co-conspirator exception. It cited other circuits as having
applied such Dutton considerations, and also cited the decision of its own circuit in Glasser,
where clearly such considerations obtained. Doubtless having this record before it, the
Supreme Court denied certiorari. Later, in White, Circuit Judges Smith and Feinberg, and
District Judge Tenney, applied alaspects of Dutton to a declaration against interest admitted
under FED. R. EviD., R. 804(b)(3) & 804(b)(5), citing both Dutton and Paco for the "cru-
cial/devastating" test. United States v. White, 553 F.2d 310, 314 (2d Cir. 1977), cert. denied,
431 U.S. 1972 (1977). Had conspiracy been charged vis-h-vis declarant's having been a pros-
titute and defendant her pimp, the declaration might have been a co-conspirator admission.
In any event, the presumed reliability of a declaration meeting a recognized federal excep-
tion reduced to a legislative rule (Rule 804(b)(3)) was insufficient, and the other Dutton
concerns also applied. If the co-conspirator exception i" a rule of substantive criminal law
creating habi/i~ for a co-conspirator's statement (see notes 67-68 supra), the traditional decla-
ration against interest is probably more reliable than a co-conspirator admission. In United
States v. Medico, 557 F.2d 309 (2d Cir. 1977), hearsay arguably falling within one or more
exceptions in the Federal Rules was dealt with in Dutton's case-by-case fashion. Id at 316
n.6. Though the majority of the panel thought Yates, infa note 94, went too far in its Dutton
analysis (so as to run counter to the language of some of the Federal Rules of Evidence rules
on hearsay), it did allow for Dutton's application to those rules:
A better analysis. . . would require exclusion of hearsay . . . which is "crucial" or
"devastating" only where the unavailability of the declarant deprives the trier of
fact of a satisfactory basis for evaluating the truth of the . . . declaration.
Id at 316 n.6. This language, while fitting Dutton, can suggest a presumption that hearsay
fitting an exception in the Federal Rules is admissible even if "crucial" or "devastating,"
unless defendant demonstrates convincingly that the jury would be led astray. One reason
Medico gave for admitting the hearsay there was government need (no other evidence spoke
to the same issue). Id at 316. On this ground, inter aha, Judge Mansfield dissented:
No authority supports the application of the 804(b)(5) residual hearsay exception
in a case like the present . . . when serious questions of reliability have been raised
in the absence of cross-examination. . . . In admitting statements similar to those
[before the court], it has often been stated that where the declarant is present and
on the witness stand, present cross-examination provides sufficient protection
against unreliable out of court statements. California v. Green . . . . No such pro-
tection was available in this case.
Id at 321, citing, e.g., Yates, supra. This may suggest that Judge Mansfield dissented in favor
of defendant-appellant in PAco, supra. In any event, Medtco apparently indicates that Paco
and the other Second Circuit cases combine to support the text related to this note. (If,
however, the Medico majority-one of whom was a district judge-meant to establish the pro-
96
Seventh -the question whether criminal trial use of unconfronted-de-
government/pro-admissibility presumption suggested above, its opinion would slightly

weaken the text.)
90. Stewart v. Cowan, 528 F.2d 79 (6th Cir. 1976); Glinsey v. Parker, 491 F.2d 337
(6th Cir.), cert. denied, 417 U.S. 921 (1974); Phillips v. Neil, 452 F.2d 337 (6th Cir.), cert.
denied, 409 U.S. 884 (1972). The Sixth Circuit had a temporary lapse in the United States v.
Perna, 491 F.2d 253 (6th Cir. 1974), cert. denied, 417 U.S. 934 (1974). But this was before
both Stewart and (by about a month) Ghnsey, and it was not en banc (so as not to have much
effect on Phil)bs, which was relied on in Stewart).
91. United States v. Scholle, 553 F.2d 1109 (8th Cir. 1977); United States v. Rogers,
549 F.2d 490 (8th Cir. 1976), cert. denied, 431 U.S. 918 (1977); United States v. Carlson, 547
F.2d 1346 (8th Cir. 1976). See United States v. Fountain, 449 F.2d 629 (8th Cir. 1971), cert.
denied, 405 U.S. 629 (1972). Contra United States v. Kelly, 526 F.2d 615 (8th Cir. 1975), cert.
denied, 424 U.S. 971 (1976), which relied on two badly decided cases from other circuits
(Weber and Clayton) and which misrelied on several other cases opposed to the Kelly rule.
92. United States v. King, 552 F.2d 833 (9th Cir. 1976); United States v. Wood, 550
F.2d 435 (9th Cir. 1976). United States v. Everidge, 488 F.2d I (9th Cir. 1973), was absurdly
"reasoned." The court panel held co-conspirator exceptions unaffected by the confrontation
clause, because Bruton was inapplicable under the Dutton plurality's statement: "we do not
question the validity of the co-conspirator exception applied in the federal courts." Id. at 3,
quoting from Dutton v. Evans, 400 U.S. 74, 80 (1970). Actually, this quote related solely to
whether the federal exception's subconstitutional preclusion of use of cover-up-stage admis-
sions was constitutionally required in state courts. The statement had absolutely no bearing
on the constitutionality of the federal exception or on the breadth of Bruton.
93. United States v. Milano, 443 F.2d 1022 (10th Cir.), cert. denied, 404 U.S. 934 (1971).
94. United States v. Yates, 524 F.2d 1282 (D.C. Cir. 1975); United States v. Bolden,
438 F. Supp. 1262 (D.C. Cir. 1977); United States v. Leonard, 494 F.2d 955 (D.C. Cir. 1974),
remandingfor new trial, the judgment in which was a.ffd in 523 F.2d 1177 (1975).
95. Compare United States v. Leslie, 542 F.2d 285 (5th Cir. 1976), Spears v. Circuit
Court, 517 F.2d 360 (5th Cir. 1975), United States v. Menchino, 497 F.2d 935 (5th Cir.
1974), United States v. Wilkerson, 469 F.2d 963 (5th Cir. 1972), cert. denied, 410 U.S. 986
(1973), Hoover v. Beto, 467 F.2d 516 (5th Cir.) (en banc), cert. denied, 409 U.S. 1086 (1972)
and Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert. denied, 409 U.S. 942 (1972) with Park v.
Huff, 506 F.2d 849 (5th Cir.) (en banc, two dissents and six dissenters), cert. denied, 423 U.S.
824 (1975). In Hoover an alleged principal's confession was allowed in an alleged accom-
plice's trial-solely to show the existence of a "principal" so that complicity could be main-
tained and not to prove defendant's guilt. The issue was whether Bruton required reversal
because of the weakness ofjuries. A majority of the sixteen-member court held harmless any
Bruton-type error. In a dictum, it mused that Dutton-type confrontation errors occur only
absent satisfactory basis for truth-ascertainment. Hoover v. Beto, 467 F.2d 516, 530 (5th
Cir.) (en banc), cert. denied, 409 U.S. 1086 (1972). This could imply that "indicia of reliabil-
ity" would be sufficient to uphold admission, unless the term "satisfactory" is emphasized.
It could also mean that Dutton and the harmless error rule are distinct; yet the factors the
majority used in its harmless error analysis matched those of the Dutton plurality opinion (see
id. at 534 and see also id. at 542, 547-48, where the dissent so reads the majority opinion).
Finally, it may mean that some substitutes for normal, in-trial cross-examination may be
adequate confrontation (as in Green). In view of the weight of the dissent (seven of fifteen
judges) and the earlier, panel decision (439 F.2d 913), the better inferences are those sup-
porting the text proposition. Of the other cases cited, all but Park support or do not conflict
with the text. In Park, where, of fifteen judges, six dissented in two opinions and one con-
curred specially in an opinion not in conflict with the text, a one-vote majority appeared to
treat co-conspirator admissions as exempted from confrontation claims. The majority put
the issue as whether declarant/co-conspirators made the statements attributed to them, not
as whether defendant had a right to cross-examine declarants. Since witnesses reporting the
hearsay under oath were cross-examined, the confrontation matter was closed. Here it relied
erroneously on Nelson v. O'Neil, 402 U.S. 622 (1971), and misdistinguished Dutton on the
clarant hearsay is reversible constitutional error is governed by eleven

concerns:
(a) whether the hearsay involves a positive assertion of past fact to
which the jury may assign undue weight; (b) whether declarant's per-
sonal knowledge of the facts relevant to his declaration is so abundantly
clear that cross-examination could not show lack of such knowledge; (c)
whether it is extremely unlikely that the hearsay reflects a faulty mem-
ory or perception; (d) whether the declaration's circumstances and/or
previous infrajudicial cross-examination of declarant indicate reliability
and a satisfactory basis for truth-ascertainment; (e) whether the hearsay
is strongly corroborated; (f) whether defense counsel had adequate op-
portunity to cross-examine all corroborating testimony; (g) whether de-
fense counsel had adequate opportunity to cross-examine the reporter or
recorder of the hearsay; (h) whether defendant waived access to declar-
ant or objection to the hearsay; (i) whether the hearsay was admitted
under a traditional or recognized exception to the hearsay rule; (j)
whether the hearsay was crucial or devastating, or cumulative and pe-
ripherally significant; and (k) whether the trial context and the manner
in which the hearsay was adduced were proper and benign.
The relative incidence of good and bad factors determines whether the
ground that the hearsay there did not conform to the federal rule on admission of co-con-
spirator declarations. Concurring specially, Judge Gewin disagreed with the majority and
thought the case governed by Dutton and Hoover (or the supremacy clause). Park v. Huff,
506 F.2d 849, 860-62 (5th Cir.), cert. denied, 423 U.S. 824 (1975). Judge Gewin dissented in
Hoover. Both dissents (all six dissenters) insisted that confrontation was never achieved
merely by cross-examination of witnesses reporting hearsay of un-cross-examinable declar-
ants; to the dissenters confrontation related to hearsay declarants. Id. at 862-65. Only in
peculiar cases like Dutton, where all the Dutton criteria are satisfied, may an allowance of use
of hearsay of an unconfronted declarant go unreversed. Speaking for himself and four
others, Chief Judge Wisdom reacted to the blundering majority opinion this way:
Incredible! . . . To allow [defendant] to be found guilty of murder on the crucial,
devastating out-of-court statements of. . . men . . . never brought into court...
although they were . . . available [to the prosecution] . . . shocks me. I doubt
that this could happen in any other civilized country. I had thought that it could
not happen here.
Id. at 863. Compare Sir Walter Raleigh's case, largely responsible for the confrontation
clause, infra notes 276-79 and related text.
One Park majority-member and one dissenter have retired and been replaced. More-
over, Park is very difficult to reconcile with the rest of the Fifth Circuit's cases cited above-
even Hoover, except insofar as declarants in Park may have been amenable to defense sub-
poena. Therefore, Park's impact on Fifth Circuit law is unclear, and ultimately the text
proposition may well obtain in the Circuit, as it clearly had before Park.
96. United States v. Cogwell, 486 F.2d 823 (7th Cir. 1973), cert. denied, 416 U.S. 959
(1974), clearly indicates that even hearsay admitted under a recognized exception must be
put to a harmful-impact-and-reliability test. United States v. Papia, 560 F.2d 827 (7th Cir.
1977), because of its particular facts, is not inconsistent with Cogwell. United States v.
Isaacs, 493 F.2d 1123 (7th Cir.), cert. denied, 417 U.S. 976 (1974), appears to follow the First
Circuit (see note 63 supra and related text). The Isaacs court relied on one pre-Cogwell Sev-
enth Circuit case and United States v. Cerone, 452 F.2d 274 (7th Cir. 1971), cert. denied, 405
U.S. 964 (1972), which, carefully read, provides no more support for the First Circuit view
than for Cogwell's. At least, however, the Isaacs court indicated that "reliability" was a
consideration under Dutton, though, citing Justice Harlan's Dutton concurrence, it deemed
reliability ordinarily presumable from the fact of conspiracy.
use of such hearsay is reversible error. Unless hearsay use is patently

harmless, a defense objection will oblige the prosecution to demonstrate a
relative incidence that indicates truth-ascertainment-enhancement with-
out undue prejudice. A comparative analysis of two cases-Stewart v.
Cowan9 7 (Fifth Circuit) and Spears v. C'rcuit Court, 9thJD., Warren County,
Miss. 98 (Sixth Circuit)-will illustrate.
In Spears a medical report (about a patient's pregnancy) was admissi-
ble; in Stewart a ballistics report was not. As to all factors the cases were
opposite: (a) The Spears report involved an assertion of contemporaneous
fact. The Stewart hearsay was a positive assertion of past fact. 99 (b) The
Spears report reflected first-hand knowledge of a nurse, a medical recep-
tionist, and a medical technician. The subject was a woman in the profes-
sional care of a physician-run medical laboratory. Nothing indicated that
the biological facts, their analyses, or the reporting process may have been
extraordinary. It was supremely unlikely that the nontestifying personnel
would have changed their views on cross-examination.100 The Stewart
hearsay was opinion about a question of physical fact-whether a bullet
was fired from a particular gun. The F.B.I. ballistics expert, however,
apparently had no personal knowledge of the sources of the test items or
other relevant facts. He had not done the primary investigation and evi-
dence collection.lOt (c) In contributing to the report in Spears, declarants
had nothing to remember except their jobs and routine information. The
10 2
reporting process involved contemporaneous facts and procedures.
The Stewart hearsay was partly dependent on the collective memories of
more than one person. 10 3 (d) The Spears declarants were disinterested
and involved in routine, private medical business. They were sought and
consulted before commission of the alleged crime and without relation to
law enforcement or litigation.' 0 4 Though it was probable that the Stewart
declarant had no conscious motive for lying, it was not too unlikely that
his official F.B.I. report would reflect a sympathy with the interests of the
police for whom he was reporting.105 (e) The Spears report was only one
97. 517 F.2d 360 (5th Cir. 1975).

98. 528 F.2d 79 (6th Cir. 1976).
99. Dutton's plurality deemed significant that the hearsay there was not a positive as-
sertion of past fact, presumably because such hearsay poses reliability questions. See Dutton
v. Evans, 400 U.S. 74, 88 (1970).
100. See also Spears v. Circuit Court, 517 F.2d 360, 366-37 (5th Cir. 1975).
101. See Stewart v. Cowan, 528 F.2d 79, 81-83 (6th Cir. 1976).
102. See Spears v. Circuit Court, 517 F.2d 360, 366-67 (5th Cir. 1976).
103. E.g., several police officers and F.B.I. personnel with no real contact with the crime
or its investigation. See Stewart v. Cowan, 528 F.2d 79, 81-83 (6th Cir. 1976).
104. See Spears v. Circuit Court, 517 F.2d 360, 364-67 (5th Cir. 1976).
105. Both the prosecution and the police who testified showed inclination to distort the
facts toward their positions--even to mislead deliberately. See 528 F.2d at 81-83 and note
108 infia. It thus seems not unlikely that the local authorities might have entreated the
F.B.I. for convenient evidence.
of many items on point."0 6 The Stewart hearsay stood alone. 10 7 () The

confrontable witnesses corroborating the Spears report were the testing
technician, the doctor running the laboratory, and the physician who in-
terpreted the report-only the laboratory nurse and receptionist who
asked for and transmitted a specimen were absent. There was no immedi-
ately relevant corroborating testimony to cross-examine in Stewart. (g) In
both cases, the witness adducing the hearsay was cross-examinable. In
Stewart, however, no effort had been made to produce for cross-examina-
tion any but the last, least knowledgeable of the persons involved in the
chain of reporting,' 0 8 though it would not clearly have been inconvenient
to produce even the original declarant.' 0 9 In Spears, the most important
participants in the reporting chain were present. Producing the others
would have been unduly inconvenient. They had no connection with the
prosecution, and could not have added to the report. As implied above, it
was doubtful that they could have been impeached. Since much time
had passed between the occurrence of the reported fact and the trial, the
report was its best record. It reflected direct personal knowledge of events
and conditions within each reporter's control or expertise. At trial the
lesser participants would have had to depend more on the report than on
memory. Since the defendant did not suggest that the report was not an
ordinary business record, there was no apparent reason to suspect that it
was in any way unreliable. Its propriety and import could be fully tested
through expert witnesses for the defense as well as through cross-examina-
tion of the available, involved physicians and technician. (h) The missing
Spears declarants were amenable equally to defense and prosecution sub-
poenas. The prosecution in Stewart had clearly superior or sole access to
declarant but offered no reason or excuse for not producing him. (i) The
Spears report was a clearly sound exception to the hearsay rule, a variety
of business record." t0 The Stewart hearsay was not. It was not based on
impartial first-hand knowledge or ordinary business sources, but on views
of persons engaged in relevant litigation preparation-prosecution agents
and their colleagues. () The Spears hearsay was a declaration of the sim-
106. See Spears v. Circuit Court, 517 F.2d 360, 366, 367 (5th Cir. 1976).
107. See Stewart v. Cowan, 528 F.2d 79, 80-88 (6th Cir. 1976).
108. That is, a local policeman who had not found the spent slugs in question and had
not participated in the ballistics test or analysis, and who, for all that appears, was not a gun
expert (though he was a trafficker in testimony about damning gossip). See id. at 81-82, 85-
86.
109. Presumably the F.B.I. cooperates with local police and prosecutors. See Barber v.
Page, 390 U.S. 719 (1968). Perhaps the F.B.I. could have spared the declarant expert for
several hours or less-so that he could either testify or give a deposition (arguably allowable
under Green). The state made no effort to produce declarant for any cross-examination.
110. See Spears v. Circuit Court, 517 F.2d 360, 366 (5th Cir. 1976). Compare Jenkins v.
United States, 307 F.2d 637 (D.C. Cir. 1962) weIh, e.g., Falcone v. New Jersey Bell Tel. Co.,
98 N.J. Super. 138, 236 A.2d 394 (1967).
pie, physical fact of pregnancy. It was not used to establish anything but
that fact, not even defendant's connection with it. It was well corrobo-
rated but not addressed to any issue directly bearing on defendant's culpa-
bility. It was blandly objective, not inflammatory. The verdict easily
could have been reached without it.I' The Stewart report was used to
establish that the gun the police claimed they found on defendant's per-
son was the weapon used to kill defendant's alleged homicide victim. It
was insufficient to prove the point, but the jury easily might have assigned
it undue weight or rendered a different verdict without it. Far from
bland, with beguiling "scientific" form, it carried important implications
about a matter critical to culpability.' 1 2 Unlike the Spears report, the
Stewart hearsay was not peripheral or cumulative, but crucial and poten-
tially devastating. (k) Many matters treated above converge around the
questions of trial context and mode of hearsay use. Particularly, however,
in Spears the hearsay was fair and superior proof of a neutral, physical
fact, and the prosecution used it for nothing else. The opposite was true
13
of Stewart.'
The net of this is the same as I have suggested about the somewhat
obscure and ambivalently related Supreme Court developments outlined
earlier. Though not transparently so, this is also true as to presumptions
111. See id. at 366-67. Indeed, a physician testifying as an expert witness might use such
a report as basis for his opinion though the report might not be admissible. Eg., FED. R.
Ev D. R. 703 & 705.
112. See Stewart v. Cowan, 528 F.2d 79, 83, 85 (6th Cir. 1976). Cf People v. Collins, 68
Cal. 2d 319, 66 Cal. Rptr. 497, 438 P.2d 33 (1968). Compare Phillips v. Neil, 452 F.2d 337
(6th Cir.), cert. denied, 409 U.S. 884 (1972). See also note 113 infra.
113. Despite the fact that the F.B.I. report indicated that "although the bullet ... had
markings similar to those that would have been produced by the putative murder weapon,
there were insufficient microscopic markings remaining. . . for identification," the prosecu-
tion made much of its impressive-sounding details:
Q. Now then, was the FBI laboratory technician able to say that that bullet came
from that gun?
A. No sir, he wasn't.
Q. All right, Would you read to the jury the best he could do, based on what he
had?
A. The bullet . . . from Benberry's body is referred to in this report as Specimen
Q5. The revolver . . . Specimen K1. Specimen Q5 . . . is a partially muti-
lated caliber .22 long rifle hollow point, brass-coated, lead bullet of Reming-
ton-Peters manufacture which was fired from a barrel rifled with six lands and
grooves, right twist. While the four barrels KI . .. , the revolver. . . I hold in
my hand, [sic] while thefour barrelsof KI produce rifing impressions like those on Q5,
there are insufficient microscopic marks remaining on Q5 for comparison or
identification purposes.
Id. at 81, 82-83 (emphasis in original). Of this testimony (of an investigating police officer)
the court observed: "This statement formed another important link in the chain of circum-
stantial evidence . . . . As the prosecutor's closing argument indicates, he wanted the jury
to believe that it was possible that the fatal bullet came from the purported murder weapon
[identified to defendant]." Id. at 83 (emphasis in original). Besides this, there was indica-
tion that some officers were grabbing at straws to stretch their case against defendant--even
using gossip and rumor in their testimony against him. See id. at 82, 85-88.
and the burden of argument. The Harlan test in Dutton set business
records and learned treatises as benchmarks of general validity for hear-
say. That test assumed that hearsay rule exceptions like "admissions" of
co-conspirators did "evince some likelihood of trustworthiness" ' 4 as to
the guilt of nondeclarant putative cohorts, and that "with the guidance of
defense counsel"' "1 5 the jury "should be alert to the obvious dangers of
such testimony. ' 16 Thus, "a person weighing the necessity" of such evi-
dence against the "danger that the jury will give it undue credit might
reasonably concede that the admission" would "increase the likelihood of
just determination of the truth."' 1 7 Defendants would have a heavy bur-
den demonstrating the contrary."18 The Harlan opinion in Dutton has
been followed in only one circuit court opinion." 9 The mode of opinion
in the circuits follows the Bruton teaching that ordinarily even judges can-
not sufficiently guide juries in this field. 120 It does not assume reliability
or deem a tradition of exception sufficient to support admission. Under
the prevailing view in the circuits, the requirement for affirmance is that
there have been not merely a likelihood of just determination of truth, but
an actual just determination. The Spears report was allowable only be-
cause careful examination indicated that it was, beyond doubt, as impartial
and trustworthy as a learned treatise, as well as eminently controllable
through cross-examination of the important declarants and their princi-
pals, through expert defense witnesses, and through limiting court instruc-
tions. The report bore no comparison to an uncorroborated co-
conspirator admission. The Stewart hearsay was "necessary" but deemed
invalid-though it was not as suspect as a co-conspirator admission. "Ne-
cessity" may contraindicate admission, because it may draw false weight to
2
the hearsay. ' '
114. Dutton v. Evans, 400 U.S. 74, 99 (1970) (Harlan, J., concurring).
115. Id.
116. Id.
117. Id.
118. See id. at 88-89, 99-100. Cf Smith v. Illinois, 390 U.S. 129, 134 (1968) (Harlan, J.,
dissenting) (opinion suggests a presumption that unavailability to defense of certain line of
cross was not harmful and a burden on defense to show the value of unavailable cross).
121. In Phillips v. Neil, 452 F.2d 337 (6th Cir.), cert. denied, 409 U.S. 884 (1972), relied
on heavily in Stewart, the hearsay was a medical report (as in Spears). Phihllps thus teaches
pointedly the impossibility of generalizing about the constitutionality of use of particular,
recognized or codified hearsay rule exceptions. The Phillips reports contained suggestions
that defendant was responsible for the actions that he claimed had been dictated by his
insanity (his principal defense), and the court found the report not so much reliable as truth-
distorting. The report was "outcome-determinative" and crucial, perhaps a sine qua non of
the state's case. Id at 347. The state gave no reason for not producing the declarant(s) or
choosing to rely on the report. Id. Declarant(s)'s identity (or identities) did not appear in or
from the report; nor were declarant(s)'s qualifications indicated. Id. Not only was the re-
port central, crucial evidence directly and markedly bearing on the principal and ultimate
C. Confrontation, Due Process, and Dying Declarations
This part will develop against the background above some typical
truth-ascertainment problems associated with the dying declaration rule.
It will examine whether the confrontation and due process concerns out-
lined above can be reconciled with the operation of the dying declaration
rule. It will assess constitutionally the prejudice and loss of curative
truth-ascertainment potential that results from courts' treating dying dec-
larations as trustworthy proof of guilt despite the fact that defendants
cannot cross-examine the declarants.
1. Veracity Assumed
Here it will be assumed, arguendo, that dying declarants will not

consciously lie about the circumstances of their moribundity. The inquiry
will be whether, like learned treatises and trade journals, 122 "honest" dy-
ing declarations are adequately reliable, fairly immune from unconstitu-
tional abuse, and sufficiently amenable to a reasonable substitute for the
direct impeachment that cross-examination of the declarant would other-
wise afford. The exposition will use two model state court cases-State v.
24
Wilson ' 23 and Strickland v. State. '
Defendant in Wilson, Stanley Wilson, entered a supper club early one
morning, called decedent-victim outsidefor a talk, and left with him, not
to return. Witnesses in the club said that within seconds after the two ex-
ited, a noise like a shotgun blast resounded, and that thereupon, decedent
reentered holding his side, from which blood was "gushing," and ex-
defense issue, it was "most damaging" in consisting of "opinions and conclusions ... stated
without a detailed explication of either the facts or reasoning processes on which they are
based." Id. The questions addressed in the report were widely known to be the sort given to
strong difference of opinion among experts of varying disciplines (see id. at 347-48 and Part
III.B.l in/ra) and hence required to be given infrajudicially subject to cross-examination.
Cf., e.g., Lewis v. Woodland, 140 N.E.2d 322 (Ohio Ct. App. 1955); Loper v. Andrews, 404
S.W.2d 300 (Tex. 1966). This is quite different from the report in Spears. Seealso Falcone v.
New Jersey Bell Tel. Co., 98 N.J. Super. 138, 236 A.2d 394 (Sup. Ct. App. Div., 1967). The
prosecution could introduce the report "with appropriate fanfare as to the distinguished
alienist who made it, but who is not called as a witness," to the confounding of the "oppos-
ing party [who] might have plenty of data to shake this testimony on cross-examination"
were it given in court, but who "would have to remain silent while a strong prima facie case
is made against him." Phillips v. Neil, 452 F.2d 337, 348 (6th Cir.), cert. denied, 409 U.S. 884
(1972). If, quite by chance, the defense "catches and produces the [reporting] psychiatrist he
must offer him as his own witness" so as to have only an impaired right of cross-examination.
Id. The Phitips report was made about a year before the alleged crime-a declaration of
speculation or inference, and partly innuendo, about the psychic content of an impetus for a
past, apparently-incriminating act. Compare id. at 348 with id. at 341, 347.
122. See, e.g., McMillen Feeds, Inc. v. Harlow, 405 S.W.2d 123 (Tex. Civ. App. 1966).
But see note 121 supra.
123. 86 Nev. 320, 468 P.2d 346 (1970).
124. 167 Ga. 452, 145 S.E. 879 (1928).
claimed: "Oh, Baby, I've been shot." 125 No evidence connected defend-
ant with any shotgun.' 6 No witness said he noticed defendant carrying a
shotgun or anything similar at any relevant time. 127 The state did not
produce the murder weapon or prove its type-sawed-off or full-barreled
shotgun, or something else. 128 A sawed-off shotgun may have been con-
cealable in a light coat or jacket. A full-barreled one would have made a
conspicuous bulge in any but a very loose raincoat or a great overcoat,
unless it were halved or dismantled. 129 Had defendant carried a disman-
tled shotgun, he almost certainly could not have used it on decedent
"within seconds" of their exit. Probably from one-half to three minutes
would have been consumed assembling and loading the gun. 130 Obvi-
ously, also, decedent would have noticed the removal and assembly proc-
ess and very likely would have struggled with defendant. Just as
obviously, defendant likely would not have risked the struggle, so that he
125. State v. Wilson, 86 Nev. 320, -, 468 P.2d 346, 347 (1970).
126. See id. at -, 468 P.2d at 347-48. Cf., e.g., Miller v. State, 250 Ind. 656, 236 N.E.2d
585 (1968), for some of the evidential problems such a situation can involve.
127. See State v. Wilson, 86 Nev. at -, 468 P.2d at 347 (1970).
128. I have spoken in Cleveland, Ohio and Louisville and Jefferson County, Kentucky
to several experts in firearms, shotguns, and related forensics, about this and related matters.
All agreed that often, to the extent range can be determined, barrel length is determinable,
mostly on the basis of spread and type of pellet and wound (or blast-area) shot-marks. Con-
versations with, e.g., Officer Wayne Edwards, Louisville Police (1978) (Edwards being one of
two firearms experts used by Kentucky law enforcement agencies for advice, consultation,
and courtroom testimony on firearms and firearms use and use-detection), Sgt. Miley, Jeffer-
son County Police (1978) (with long-term experience with firearms), and Cleveland's Coro-
ner (1977). Range can be determined on the bases of shot-casing residue, casing type,
spectrographic analysis, powder or powder burn residue, and wound or shot-mark aspects
(depth, width, victim tissue effects, etc.). Id. Recently, detection difficulties have been intro-
duced by the use of plastic casings and gun design changes that tend to reduce gun-barrel-
length-related shot-pattern variations. Id. If, however, the gun in question had been sawed-
off to a length substantially shorter than the eighteen inches that federal law allows, its shot
pattern would have been readily distinguishable from that of any legal-sized gun, shot casing
and gun design notwithstanding. Moreover, in 1967, when the Wi/son killing occurred,
plastic casings and new-design guns were more than likely not available to the Wilson killer;
rather it was extremely unlikely that any but old-style, cardboard casings and old-style guns
would have been available, so that fairly reliable range and barrel-length detection would
have been very possible. Conversations with Officer Edwards and Sgt. Miley, supra. Finally,
even now, many frequent shotgun users, preferring old-style casings, reload shot into old-
style, cardboard casings, making range detection easier. Conversation with Officer Edwards,
supra. Such reloading, itself, is detectable. Id.
129. This is the consensus of law enforcement officers to whom I have spoken.
130. Again, this is the consensus of several law enforcement officers. Sgt. Miley, supra
note 128, said the real expert.(a long-time hit man who practices much) would take no less
than twenty-five seconds to remove a gun from his coat, assemble the gun, and shoot it.
Officer Edwards, supra note 128, said that he could do this in approximately ten seconds.
Sgt. Miley thought that someone familiar with weapons, but who was not an expert, would
require two minutes, while Officer Edwards estimated three minutes, and a Cleveland law
enforcement officer, who wished to remain anonymous, estimated that no one could accom-
plish the act in less than twenty seconds. All stated that considerably more time would be
required if the gun had to be loaded as well, and that this would most probably be required.
would not likely have carried a dismantled, full-sized gun. Had defend-
ant planned to shotgun decedent, probably he would either have con-
cealed a preloaded, assembled gun under an overcoat or loose raincoat or
left one just outside the club exit.' 3 1 Had he carried it into the club, it
most likely would have been a sawed-off one. Even though a radically
sawed-off shotgun could be slung from one's shoulder, down one's side,
and beneath the crotch of one's arm, so as not to be noticeable under a
loose suit jacket or similar light, short apparel, 132 a wise murderer would
have worn a largish coat so as to be certain not to warn either his in-
tended victim or onlookers. Also, as government films in the Patty Hearst
trial taught, it is not uncommon for a shotgun or tommy-gun carrying
criminal to wear a large coat with bottomless side pockets so that, well
concealed, the gun can be triggered fast without removal of the coat or
3
gun. The killing in Wilson occurred at 3:15 a.m. on 8 December 1967.1 3
At that time on that day in Las Vegas the temperature was about 470
Fahrenheit and the precipitation zero.1 34 The temperature did not drop
below 45' that morning.' 35 At 6 p.m. in the preceding evening, the tem-
perature had been 530136 and from that point dropped slowly through
the night into the high forties. ' 37 The 24-hour high temperature was 580
and the 48-hour precipitation zero.' 3 8 It was not likely that many men
131. As to the gun's having been left leaning on an object or lying on the ground, the
probability seems remote. Would defendant have risked some one's taking the gun, or notic-
ing it and becoming curious enough to stay and witness the crime? The shooting occurred
outside a Las Vegas night club. In this regard, suppose (and the record is not contrary) the
night club was on the highly lighted and heavily traveled Las Vegas "strip." Also, if defend-
ant had to turn or bend down to reach for and obtain the gun, the victim (who, evidence
suggested, had been a pimp) would probably have been alarmed and struggled appropri-
ately. Would not defendant have wished to avoid this prospect. Being able to whip from his
coat a loaded, assembled gun would have been optimum. But the prosecution apparently
did not consider, let alone investigate, this and related matters. One experienced police
officer told me that he could not understand why the Wilson law enforcement officials did
not develop such matters; they would have been the first things he would have inquired
about if given the Wilson facts. (For reasons the reader doubtless will understand, the law
enforcement officer last mentioned pleaded that I not cite him regarding how he would have
investigated Wt/son.)
132. Officer Edwards, supra note 128, said that some modern shotguns have been
equipped to be folded, so that breaking them down would not be necessary. He also said,
however, that such a gun would have been unlikely in 1967 when i/son'r shooting oc-
curred.
133. State v. Wilson, 86 Nev. 320, -, 468 P.2d 346, 347.
134. Certificate of Surface Weather Observations for Las Vegas, Nevada, 7 to 9 Dec.
1967, by United States Dept. of Commerce, National Climatic Center, Information Services
Division, Ashville, N.C., 24 Jan. 1977, per Clyde M. Banks, Technical Assistant, and Win.
McMurray for Daniel B. Mitchell, Director, with copies of reports for 7 to 9 Dec. 1967 from
Archives of the National Oceanic and Atmospheric Administration, Environmental Data
Service.
135. Id.
136. Id.
137. Id.
138. Id.
going to dinner, a club, a casino, or inside work would have worn more
than a suit jacket, small windbreaker, or light trenchcoat. 139 A heavy
overcoat would have been conspicuous.1 40 Probably a raincoat would
have been noticed.' 4 ' Witnesses in the club did not see defendant carry-
ing a weapon.' 42 Apparently the state offered no evidence or statement
on defendant's dress or the weather at the time in question-just as it had
not produced evidence of the murder weapon or defendant's relation to it:
the court report does not mention these matters. There were no eyewit-
nesses to the shooting.
Given the evidence, it was as probable as not that a person other
than defendant had been lying in wait outside the club with a shotgun
with which he or she shot decedent. 143 The shot may have been meant
not for decedent but for defendant or even for a stranger. Even if defend-
139. In 1977 1 took a survey of about twenty-five faculty and students at Cleveland-
Marshall College of Law. The survey was random in that sample selection was determined
not by my choice but by the adventitious variable of who happened to be at school on the
afternoon of the survey. In the survey, I gave those surveyed the complete weather data
appearing in the text above and told them that the situation in question was a Las Vegas
night club area. Nearly all surveyed thought they would have worn a suit or slacks and
sport coat, perhaps a sweater or a light-weight zipper-front windbreaker jacket, or, at most,
a light rain coat. Some, who assumed that they would have been out dining or night-club-
bing for some hours, said they would not have worn anything heavier than a suit or slacks
and sport coat. I have been in Las Vegas in late December (of 1975) and was not uncom-
fortable with no more than a long-sleeved shirt-as late as 2:00 a.m. Others I saw at that
time were wearing light clothing. The temperature seemed about that in Wilson.
140. Along with some faculty colleagues, unaware of my purpose, I performed a primi-
tive reenactment of the facts in Wilson for my Cleveland-Marshall College of Law Evidence
class during Winter Quarter 1976-77. The students, having witnessed the performance and
having been given "hypothetical" facts indicating they were witnessing a night club scene in
Las Vegas on an early morning in December, were asked to jot down quickly what they saw.
Among the facts that virtually every student reported was that the man who asked the
victim to step aside was wearing a full-size or three-quarter-size over coat or top coat. Many
noted this fact more vividly or emphatically than other facts, with twelve of sixteen students
noting it at or near the beginnings of their reports. See Appendix.
141. In my survey of my Evidence class, supra note 140, the responses seemed more than
not to emphasize the wearing of a full-size or three-quarter coat. It is my impression that the
students would'have considered conspicious any coat larger than a suit jacket. See Appen-
dix.
142. The person playing defendant Wilson in my reenactment, supra notes 140-141,
walked into the "night club" with one hand in a position indicating it was either in a coat
pocket or inside his coat, and he walked as though he were holding something inside his
coat. A significant number of the students surveyed noted such a fact. The actual witnesses
to the Wilson defendant's conduct in the nightclub apparently either were not asked a ques-
tion that would have elicited such testimony or had not witnessed or noticed such details.
See State v. Wilson, 86 Nev. at -, 468 P.2d at 347-48.
143. One cannot determine from the report of Wilson the nature and content of his
defense or defenses. Yet it is implicit in the record that he denied having done the act of
homicide, at least the actual shooting. But for the ambiguous dying declaration of the vic-
tim, nothing was adduced that was capable in logic of implying (even by noncriminal stan-
dards of sufficiency) that defendant had done the shooting: there simply was no evidence on
the matter. See State v. Wilson, 86 Nev. at -, 468 P.2d at 347-50.
ant had acted as a "finger man," defendant may not have been privy to a
plan of his principal to do the shooting that occurred.144 Since there was
evidence showing that decedent was a pimp 145 but no evidence produced
as to defendant's profession,' 46 it was as possible that defendant was a
"finger man" for decedent's competitor (or some other likely enemy of a
pimp) as it was that defendant was a murder-bent competitor (or en-
emy). 1 4 7 The fact that defendant did not reenter the club with decedent
is not inconsistent with any of these inferences. The "hit" man may have
forced defendant away. Defendant may have fled in fear of the killer or
of being assumed to be the killer-the latter especially, if defendant had a
bad reputation or if decedent was a pimp and defendant a reputedly hos-
tile competitor. Having been charged with single-handedly murdering
decedent, whether defendant had been a "finger" accomplice or conspira-
tor or innocent of any planned violence to decedent, he would have been
unduly prejudiced by the dying declarations introduced in his trial.148
144. It appears only defendant was charged with the substantive crime of murder and
that no conspiracy or concerted action was alleged (see id.). Thus (as seems to have been the
case), if the evidence as much as not implied that defendant was a mere accomplice, defend-
ant might have had to have been acquitted by directed verdict (or the charge dismissed with
prejudice to the prosecution) if it had appeared that defendant had acted without
knowledge or foreseeability of the purpose of what he was doing. See, e.g., W. LAFAVE AND
A. ScoT-r, supra note 68, at 505-12, 515-18. Given only the facts reported, it is just as easy to
infer that defendant might have been duped as it is to infer that decedent was "set up." See
86 Nev. at -, 468 P.2d at 347-48.
145. There was testimony that decedent was a pimp. State v. Wilson, 86 Nev. 320, -,
468 P.2d 346, 348 (1970).
146. In cross-examining defendant, the prosecutor asked a question suggesting that de-
fendant was a pimp. Id. at -, 468 P.2d at 348. But there was no evidence of defendant's
pimping.
147. Compare note 146 supra with note 144 supra. Defendant, e.g., might have been asked
by a "colleague" to obtain decedent's presence ostensibly for some reason utterly distinct
from murder; decedent's behavior on seeing who had procured his presence might have
prompted action (homicide) not even planned by the person asking defendant to call out
decedent. Or defendant might have been extorted into calling out decedent. But for the
ambiguous dying declaration of decedent, any of these scenarios would appear perfectly
likely. However, despite the ambiguity of the dying declaration, none of these was consid-
ered.
148. Suppose defendant had been an accessory before the fact. (He might have fled
before the shooting occurred, without aiding in the substantive crime.) Prosecutorial proofs
might not have evidenced the facts that should have been alleged, or might not have proven
truthfully defendant's culpability for the principal's conduct. Dismissal with prejudice or
directed verdict would have been appropriate. This would have been so despite statute law
[NEv. REV. STAT. § 195.040 & annot. (1973); see also LAFAVE AND SCOTr, supra note 68, at
500-01] had discarded common law variance rules, because proofs would have been insuffi-
cient on material issues as a matter of evidence law. The identical problem would have
obtained had defendant been an accomplice (principal-second-degree). The dying declara-
tion would not have given the true facts indicating culpability, and the prosecution would
not truly have shown defendant's constructive culpability; for in reality defendant would
have been liable, not as principal in fact, but as though a principal--to the extent he was
shown to have engaged in acts in aid of a deed demonstrated to have been done by another.
See State v. Cushing, 61 Nev. 132, 120 P.2d 208 (1941), followed ih Colosacco v. United
After decedent reentered the club, he fell to the floor near a bar and
disclosed a gaping hole in his chest, whereupon he was asked who had
shot him. Upon being given brandy, he answered: "Stan."' 149 At that
time no one asked for the full name of the "Stan." About fifteen minutes
later a policeman arrived and saw decedent "covered with blood from the
top of his chest to his shoes," and "moaning, grasping and thrashing
around the floor," in "large quantities of blood pouring from the wound
in his chest"-requiring "three men to hold him down."' 150 The police
officer testified that he knelt near decedent, identified himself, and asked:
"Who shot you?"'' The officer recalled that decedent responded: "Stan;
Stan; Stan."1 52 The officer further testified that he then inquired of dece-
dent: "Do you mean Stanley Wilson [defendant]?"' 153 Decedent's re-
sponse, according to the officer's testimony, was an up and down nod and
an "uh hum."' 154 Did decedent mean Stanley ison when hefirst gave
the name "Stan" in answer to the initial inquiry into the identity of the
assailant? Did he correctly hear and understand the officer when the of-
ficer suggested Stanley Wilson's name? Did decedent's nod and "uh
hum" represent his knowledge, or the product of the officer's suggestion?
A person in a state of critical traumatic shock may be delirious, deranged,
or highly suggestible. 155 His responses may be reactions to internal' 56 or
57
badly perceived externalt stimuli. When decedent uttered "Stan,"
might he have meant to refer to defendant's having placed him into a
position to be killed, or to defendant's having "fingered" him? Had dece-
States, 196 F.2d 165 (10th Cir. 1952),followedin Roth v. United States, 339 F.2d 863 (10th
Cir. 1964), cited, so as to support my reasoning, in LAFAVE AND SCOTT, supra, at 501 n.68.
Should it be argued that the outcome might be the same in either case, one answer would be
that there would remain a substantial chance of undue prejudice in the prospect that the
sentencing authority would be affected by the difference among kinds of principal or accom-
plice culpability. Note that defendant Wilson was sentenced to life imprisonment without
possibility ofparole; 86 Nev. at -, 468 P.2d at 347.
149. 86 Nev. at -, 468 P.2d at 347. State v.Wilson, 86 Nev. 320,-, 468 P.2d 346, 348
(1970).
150. Id.
151. Id. at -, 468 P.2d at 347-48.
152. Id. at -, 468 P.2d at 348. The court reports that the response "Stan" was given
two or three times.
153. Id.
154. Id.
155. See notes 426, 519-22, 557-65 and related text infra. See also Appendix, Survey
Questions lI(d), 11(e), 12, 13 (a)-(c), and Tables II(A), II(B) and III qfra. With his bad
chest wound and blood loss (468 P.2d at 347-48), the victim must have been in deep shock.
See T. HARRISON, PRINCIPLES OF INTERNAL MEDICINE, 1772 (6th ed. 1970) [hereinafter
HARRISON]; M. WELL, DIAGNOSIS AND TREATMENT OF SHOCK, 251, 257 (1967) [hereinafter
WEIL; W. SCHUMER, Shock, Focus ON HEALTH, FOREST HOsp. FOUNDATION, FOREST
HOSPITAL, CHICAGO, ILL. (RADIO BROADCAST IN LOUISVILLE, KY., STATION
WU.O.L. APRIL 13, 1978) [hereinafter SCHUMER].
156. See note 155 supra. Seealso Appendix, Survey Questions 6(a)-6(b) and Tables I(A)
and I(B) infra; notes 412, 496-518, 540-55 and related text inh/a.
157. See note 156 supra, and especially notes 426, 519-22, 540-65 infra.
dent had an opportunity to determine what was happening to him or who

was about to shoot him? The answer to the last question must be affirma-
tive ony if it is assumed that defendant shot him. Suppose defendant had
"fingered" decedent, knowing of a plan to kill him. If the trigger man
shot decedent immediately when decedent opened the outside door,' 58
decedent could have succumbed to shock before he would have "known
what [and who] hit him." Under such circumstances decedent's declara-
tions could not logically support a murder verdict, even had defendant
committed complicity, conspiracy, or felony murder.' 59 Suppose defend-
ant had arranged decedent's "meeting" with another who had not in-
formed defendant that decedent was about to be killed. Suppose the shot
had been meant for defendant, or even a stranger-a mistake. Decedent,
deeply in shock and perhaps not having "known what hit him," could
easily have felt that defendant had been criminally responsible for his
murder despite the truth. Under such circumstances, decedent's delirious
or deranged perception would have been very susceptible to reinforce-
60
ment by the officer's leadtig question about Stanley Wilson. '
158. Since the witnesses said they heard a sound like a shotgun blast within seconds
after defendant and decedent exited (supra note 125 and related text), this was a good likeli-
hood-as good or better than that charged; and there is nothing contrary in the court's
statement of the facts (468 P.2d at 347-48). See also notes 126-47 and related text supra.
159. Without knowledge (or evidence) of the relative conduct of all parties and the
relevant mentality of a third party who actually did the shooting, it would be impossible in
reason to identify the true assailant and the nature of any criminal planning, intents, and
conduct really indicating ultimate culpabilities. It would be indeterminable whether ele-
ments of felony murder or some form of complicity in or conspiracy to commit murder were
present in a way that would inculpate defendant as a murderer. Eg., suppose defendant
had agreed with a third party waiting outside that he (defendant) would obtain decedent so
that the third party could engage in some kind of misdemeanor not involving nor naturally
leading to violent contact. Suppose the third party and decedent were, unbeknownst to
defendant, mortal enemies. Eg., suppose that the decedent had more than once "pub-
lished" threats to the third party's life. Suppose decedent had had on his person, and had
been known always to have carried and been willing to use, some deadly weapon, which he
drew and threatened the third party with as soon as they encountered each other. This
could have lead to the shooting in a way not implying defendant's guilt of murder or felony
murder. The very sparse record of Wilson allows all of this. It does not matter whether
defendant raised any such theory during trial process. Defendant's attorneys were court-
appointed, State v. Wilson, 86 Nev. 320, -, 468 P.2d 346,350 (1970), which may indicate
that his counsel might have been short on time, resources, or criminal practice experience;
and, in any event, defense attorneys might have decided (and persuaded defendant) to
forego many theories despite the facts indicated or allowed them.
160. I recognize that the dying declaration rule of most jurisdictions allows leading
questions in most or all cases. See, e.g., Sparks v. State, 19 Ariz. 455, 171 P. 1182 (1918);
Connor v. State, 225 Md. 543, 171 A.2d 699, 705 (1961), citng Morgan v. State, 121 Tex.
Grim. 424, 49 S.W.2d 788 (1932); JONES, EVIDENCE § 306 (1958); F. WHARTON, CRIMtNAL
EVIDENCE § 322 (1884). But this view has only age to recommend it. It merely begs the
question whether an issue of whether a particular leading question may have undermined a
dying declaration's presumptive trustworthiness would be an issue itself requiring cross-ex-
amination of declarant. Moreover, in view of the depth and the enormity of the reliability
problem in dying declarations generally (see Part IIIB in~fa), a leading question could render
a dying declaration unreliable beyond absurdity. Too, Dulton, Green, and their progeny
The Wison record does not say whether the defense argued that de-
fendant had only "fingered" decedent. Such a defense would have been
risky, since it would have permitted a felony murder, complicity, or acces-
sory conviction. Under such circumstances defendant might reasonably
16
attack only the credibility of decedent or his dying declaration. i De-
fendant did attempt impeachment as best he could without cross-examin-
ing the dying declarant; he attacked declarant's character, suggesting he62
was an irreligious pimp without a truth-compelling awe of afterlife.'
This approach, however, was off the mark. Misperception, not prevarica-
tion, was the point. But when the judge admitted decedent's declaration
63
into evidence, misperception was virtually beyond proof.1 Yet without
decedent's fatally inflammatory declarations the prosecution should have
lost. It is difficult to see why defendant's right of confrontation was not
abridged. Suppose declarant had not died. Suppose defendant had been
charged merely with complicity in attempted murder by a third person
who had been waiting outside the club. The viability of a defense that
asserted defendant had been an unknowing or unwilling tool of the real
culprit, or that the shooting was a mistake, could have turned on defend-
ant's cross-examination of the victim. In the actual Wison case such
cross-examination was precluded by the victim's death. Is it not starkly
ironic that the Wi/son dying declaration was admitted partly because of
the "necessity" that murderers not be permitted to silence their victims?
Does it not appear more heinous that this supposed "necessity" subsumes a
ought not allow the problem to be put aside by the venerability of the dying declaration
rule. See Parts IIA & IIB supra; Part III A infra.
161. Since the dying declaration was the only evidence really tying defendant to the
murder, this was not wholly unreasonable. On appeal, counsel raised the question whether
Barber, supra notes 36 & 52, apparently decided after the trial court had considered defend-
ant's objection (the murder was in December 1967 and Barber April 1978), precluded the
admission of the dying declaration because declarant was unconfrontable and not proved
reliable beyond reasonable doubt. State v. Wilson, 86 Nev. 320, -, 468 P.2d 346, 348
(1970). Besides counsel's queer argument that Barber requires reliability to be proved be-
yond reasonable doubt, the record does not indicate much of counsel's development of this
issue; and the sum of the court's determination was that since dying declarations were used
in evidence when the sixth amendment was written and thereafter without question, it was
too late to hold that the sixth amendment outlawed them. Id. at -, 468 P.2d at 348-350.
Like the aspect of the dying declaration rule addressed supra note 440, however, this merely
begs the question. In view of the content of this article, it may be amusing to consider the
court's prognosis that "no one would have the hardihood at this day to question their [dying
declarations'] admissibility." Id. at -, 468 P.2d at 350.
162. See State v. Wilson, 86 Nev. 320, -, 468 P.2d 346, 348 (1970).
163. The court held a hearing without the jury and found present all the elements of a
proper dying declaration. Id at -, 468 P.2d at 348. Since the court was, as the jury knew,
satisfied with the reliability of the declaration, why would the jury question it merely be-
cause of defense testimony tending to suggest decedent was a pimp? Id. (Indeed, the appel-
late court said: "appellant did introduce testimony discrediting the victim, but ... it was
apparently . . . disregarded by the jury." Id.
defendant's gult despite the required presumption of innocence? 164 It is

difficult to understand why the presumption of innocence and require-
ment of proof beyond reasonable doubt do not indicate deference to the
defendant's "necessity," t'e.,
the need to have accusers present for cross-ex-
amination.
In Strickland v. State, defendant deputy sheriff and his cohort deputy
tried to make a warranted arrest of decedent. Apparently the charge in-
volved illegal whiskey making, transporting, or selling.' 65 When, accord-
ing to the court, defendant served the warrant, decedent asked whether he
could have a few days to make some financial arrangements for his fam-
ily. 166 Defendant and his cohort refused, and decedent fled. Defendant,
according to the court, told his cohort to head off decedent "around the
house."' 167 This he did, while defendant pursued decedent in an automo-
bile, in a separate direction. Later, the court continued, the cohort re-
turned alone to the house area, and saw the auto vacant in a "deep
68
cut."' The cohort investigated and found evidence of a person's having
crawled up a nearby bank. Stepping out to the edge of a wood, the co-
hort "heard a shot [and] saw a little smoke on the rise of a hill close to
some rocks."' 69 Then, the court continued, he "went to a briar patch
[
..land] saw defendant coming back down through the woods from the
direction in which he had heard the shot."' 170 It was reported that de-
fendant "had a 44-caliber Smith & Wesson pistol in his hand" and that as
he approached the cohort he "put it in its scabbard" and asked his cohort
"why he did not catch the deceased."'17 The reported reply was that "he
164. See Estelle v. Williams, 425 U.S. 501 (1976); Taylor v. Kentucky, 46 U.S.L.W. 4528
(S.Ct. 1978). Cf In re Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684
(1975). See also Reg. v. Rowton, 169 Eng. Rep. 1497, 1506 (1865); Part I11A bfira. But see
Patterson v. New York, 432 U.S. 197 (1977).
165. Strickland v. State, 167 Ga. 452,-, 145 S.E. 879, 880 (1928) (defendant said dece-
dent's arrest involved "something about whiskey").
166. Id. at -, 145 S.E. at 881. This was the version of decedent (in his declaration).
There was another version that omitted reference to food, wife, and child and only re-
ported that decedent responded to the deputies' request that he accompany them with the
statement: "No; wait until Monday." Id. at -, 145 S.E. at 880. The version that men-
tioned food and family (decedent's declaration) was presented by the prosecution in the
form of a signed writing. See notes 178-80, 184, 186, 190 and related text infa. One wonders
whether the prosecution thought it would be a good play on the jury's sympathy to put into
the writing the material about decedent's pleading to have time to get food for his starving
wife and child. Would it not make defendant seem more the ogre? Defendant objected on
similar and related grounds. Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 882 (1928).
The court responded with the useful catch-all, "res gestae." Id. (Alternatively, decedent
might have been interpolating; he was, after all, probably delirious and might have fallen
into a reverie of self pity. Compare note 156 supra).
167. Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 880 (1928).
168. Id.
169. Id.
170. Id.
171. Id.
[the cohort] was not going to catch the deceased or anybody else with his
broken arm."1 72 (There was evidence that defendant too did not or could
not run into the wood in pursuit of decedent. 17 3) In any event, the cohort
reported that defendant said that "he 'tried to cut the damn scaper's legs
off,' and that the last he saw of the deceased 'he was going like a bat out of
Californey.' 174 The deceased was later found in the direction in which
the cohort said he heard a shot. There was a bullet hole in him, the ball
having passed from back to front through and out of his body. The physi-
cian who attended decedent testified that the bullet was a 44 or 38 cali-
ber.1 75 There was no other evidence respecting the caliber. Besides the
circumstantial evidence above (apparently supplied almost entirely by de-
fendant's cohort), only a supposed dying declaration of decedent related
defendant to the homicide. The declaration did not tdenti defendant but
merely indicated that decedent believed his assailant had to be defendant or
hi's cohort.' 76 Decedent did not see his assatlant.177 The "declaration" was a
writing signed by decedent. 178 It was elaborate for the statement of a
man in his death throes, probably suffering acute, traumatic, pulmonary
and hemorrhagic cardiovascular shock.' 79 Among decedent's supposed
declarations was an assertion that after he had been shot and fallen to the
forest ground, he saw "one of them [the deputies] throw something down,
and when they went off and left me I crawled up there to where they had
stood and found an empty cartridge and put it in my pocket."' 80 The
appellate court cited no evidence as to the contents of decedent's pockets.
Nor did, the court indicate whether decedent had retrieved a cartridge
matching one fired from defendant's gun, or whether the cohort's gun
could have been the murder weapon. We are not told the date or time of
172. Id.
173. Id. at -,145 S.E. at 883 (defense testimony of Lee Land-on direct examination).
174. Id. at - 145 S.E. at 880.
175. Id. at -,145 S.E. at 880-81.
176. Id. at-, 145 S.E. at 881 [e.g., "I know one of those two officers shot me ("in the
back" while they were "running through the woods, and I was running up a little hill"), but
I don't know which one ("shot me")"]. Compare id. at -, 145 S.E. at 880, 883 (evidence
indicating that either or both of the deputies may not have been near the victim when he
was shot.) See also notes 177-91 and related text tin/a.
177. See Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 881-82 (1928).
178. Id.
179. The victim was shot in the back with a sizeable slug (.38 or .44 caliber) that passed
out of his body through his chest. Id. at -, 145 S.E. at 880-81. This would have made the
kind of wound typically causing such shock. See WEIL, supra note 155 (as there cited). Even
the written declaration contained evidence consistent with acute shock under these circum-
stances: e.g., "I am weakening now, and I can't stand this suffering much longer." 167 Ga.
at -, 145 S.E. at 881. As to the probability that the rather formal, detailed document (with
earmarks of a typical police report reflecting long questioning and heavy editing) could have
represented the actual declaration of a person in such a psycho-physiological state, see, e.g.,
note 156 supra.
180. Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 881 (1928) (emphasis added).
year of the shooting, but only that the arrest attempt began in the after-
noon."' Had the shooting occurred in winter, decedent might not have
been able to see clearly who approached within "fifteen steps" of him
after he had been shot and, refusing his calls for help, threw "something"
down and left.182 It might have been dusk or darkening. The remaining
light in the wood may have been obscure. In any event, the declaration
suggested that the deputies had been together near decedent during the
shooting, not separated as the court indicated (probably summarizing the
cohort's testimony). 18 3 Whatever the truth, the declaration's integrity de-
pended upon the validity of an inference, not afPercept'n,imputed to dece-
dent:
We ran through the woods, and I was running up a little hill when they
shot me in the back. I know one of those two officers shot me, but I
don't know which one. The two officers were the only folks anywhere
around there, and they were just1 8about
4
twenty steps behind me and run-
ning after me when I was shot.
What is the effect of all this? Could not a hunter with a companion
have fired the shot? The shooting occurred in a wooded area of Georgia
circa 1928.185 The writing said to have been decedent's dying declaration
stated that after he had been shot and "hollored for help . . .some fel-
lows [meaning not the deputies] come and found me and brought me to
town." 186 For all we know, one of those "fellows" might have shot dece-
dent. The two men who earlier had stood nearby discarding something
might have returned as or with those "fellows." The shell that decedent's
"declaration" said he found was not produced. The bullet hole in dece-
dent could have been made by either a 44 or 38 slug. Defendant's gun was
a 44. If credibility is assigned to what must have been the testimony of
the cohort, it follows that the two who were about twenty feet from dece-
dent when he was shot could not have been the deputies. The cohort
apparently testified that he and defendant had been separated at the time
he (the cohort) heard a distant shot in a direction later found to be to-
ward where decedent was shot. If we believe the writing, we can infer
that defendant's cohort might have fired the shot with or without defend-
ant's complicity. The evidence did not tie defendant's weapon to the
crime any better than it did his cohort's.18 7 Either could have shot with-
181. The inference that it was afternoon comes from decedent's written declaration. Id.
182. Id. (as to facts declared).
183. Compare id.with 167 Ga. at -, 145 S.E. at 880.
184. Id. at -, 145 S.E. at 881.
185. The appellate opinion is dated 1928, and both the court and the dying declaration
describe the area as wooded and hilly. See it'. at -, 145 S.E. at 879, 880-81. Seealso note 181
and accompanying text supra.
186. 167 Ga. at -, 145 S.E. at 881.
187. If the homicide weapon was a .38 caliber, as the testimony allowed or suggested,
either defendant's cohort or a third party must have done the shooting. Defendant's gun
out the other's aid or consent. If we believe the report of what defendant
supposedly said to his cohort when they rejoined at the house, we can
infer that defendant either had not shot decedent or had not intentionally
or knowingly delivered decedent a fatal wound,18 8 either inference being
inconsistent with a finding that defendant murdered decedent.' 8 9
Though opinion in the writing (that one of the deputies must have been
the assailant) was consistent with the report that the deputies had been
separated at the time of the shooting, it was also consistent with an infer-
was a .44 and his cohort's was not described. Strickland v. State, 167 Ga. 452, -, 145 S.E.
879, 880 (1928). The possibility that defendant had used a gun other than that identified as
his was not developed by the state.
188. The fact statement, appearing to depend much on the cohort's testimony, includes
assertions that defendant had gone well into the woods in the direction where his cohort had
heard the only shot he said he heard and that when defendant met up with his cohort he
said he had "tried to cut the damn scaper's legs off." Strickland v. State, 167 Ga. 452, -,
145 S.E. 879, 880 (1928). Id. But set text in/ra between notes 189 and 191, and see notes 190-
91 bnfra. Note also that when defendant supposedly said to his cohort that he (defendant)
had tried to cut decedent's legs off he also said that "the last he saw of the deceased 'he was
going like a bat out of Californey'." Id. at -, 145 S.E. at 880. The declaration defendant
was supposed to have made to his cohort, then, is inconsistent with his having delivered the
fatal shot to the victim despite it suggests defendant shot at the victim. Too, it is consistent
with the cohort's having shot the victim, provided it is possible (as it is) that while defendant
may have made the declaration, verbatim, to his cohort, his cohort did not make truthful
declarations to defendant or the trial court. E.g., the cohort may not merely have heard a
shot in the general direction from which defendant had come, the cohort may havefred the
shot. Besides, since the few clear facts and the dying declaration do not preclude the co-
hort's having shot decedent, they also do not preclude the cohort's having invented all or
part of his version of the incident-to cover his own guilt. Cf, e.g., Semprini v. Boston &
M.R.R., 87 N.H. 279, 179 A. 349 (1935). Compare Commonwealth v. Brown, 388 Pa. 613,
131 A.2d 367, 370, 373-74 (1975) (Musmanno, J., dissenting), on problems in reconstructing
the truth from declarations as to the facts of complex, fast-moving violent situations, and as
to the prospect for declarants having motives to lie, motives often easily disregarded in view
of habitual preconceptions. How did the Strickland court treat defendant's cohort's testi-
mony including the assertion as to defendant's supposed declaration? The court said it was
an admission that justified entering into evidence the dying declaration because it removed
significance from the incompleteness, ambiguity, and surmise of the declaration. See Strick-
land v. State, 167 Ga. 452, -, 145 S.E. 879, 881-82 (1928). But see text infra between notes
189 and 191, and see notes 190-91. Nor did the court allow an alibi argument-probably an
argument that defendant was elsewhere when decedent was shot--since, the court said, "the
defense of alibi was [not] involved under the facts appearing in the record." Id. at -, 145
S.E. at 881.
189. Consider that defendant probably had the right to a warning shot. This, together
with the ambiguity and incompleteness of the circumstantial and testimonial evidence
against defendant, should have precluded admission of the egregiously faulty dying declara-
tion (under reasoning like that in Stewart, Part IIB supra, and Phillips v. Neil, 452 F.2d 337
(6th Cir. 1971), cert. denied, 409 U.S. 884 (1972), supra note 121). Without the support of the
dying declaration (especially as the court assessed it), the prosecution's evidence could not
by any logic have proven guilt beyond reasonable doubt contra the presumption of inno-
cence. Thus the case should have been dismissed or a verdict of acquittal directed. This was
so irrespective of the-fact that the sixth amendment had not yet been held to apply to the
states, since such a result would follow from the due process clause without reference to the
sixth amendment. Cf e.g., notes 36-37 and related text supra and United States v. Payne, 492
F.2d 449 (4th Cir. 1974), cert. denied, 419 U.S. 876 (19 74 ),supra note 76 (dissent suggesting a
nonincorporation way to such results).
ence that defendant's cohort, alone, did the shooting. Despite what the
cohort supposedly said about not being inclined to chase anybody be-
cause he had a broken arm, no evidence precluded the cohort's having
been in a position to have shot decedent, even from a distance greater
than twenty feet. Decedent, in shock, could have forgotten or been mis-
taken about distances (and events) so as to have believed erroneously that
one of two persons near him had shot him. Too, the appellate opinion
does not suggest the writing introduced as decedent's declaration was well
proven to have been in fact his declaration.' 90 It is easy to imagine a
motive for the cohort to testify falsely against defendant. Though we are
allowed the inference that the cohort was not indicted, I cannot surmise
why this would have been so. 19 '
Defendant's trial counsel raised several substantive objections to ad-
mission of the declaration. 19 2 His appellate advocate, however, argued
only one: That "the dying declaration as a whole was inadmissible be-
cause the deceased did not know who killed him."' 93 What was the ap-
pellate court's disposition? Here is a summary: (a) Decedent expressly
stated that he knew one of the officers shot him. (b) Though an opinion
as to the identity of the assailant would have been inadmissible if declar-
ant manifestly could not have known the identity, whether declarant's
194
opinion reflected his "primary knowledge" was a matter for the jury.
Since the evidence did not clearly gainsay declarant's knowledge of the
cause of his death or of his assailant, the trial judge had to presume declar-
ant had "stated a fact within his knowledge" (including the identity of the
assailant).' 95 The writing was not merely an (inadmissible) utterance of
belief, because decedent had seen his "assailant or assailants" and de-
scribed "appearances" from which he drew a "conclusion" as to the assail-
ant(s)'s identity. 196 His declaration was, therefore, admissible to show
that his moribundity was caused by one or both of the deputies, whom he
knew and had seen. (c) It was not error for the trial judge to instruct the
190. See Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 881-83 (1928) (negative
implication), especially id. at -, 145 S.E. at 882 (court told jury that ifthey found declara-
tion was made by deceased, jury should treat itas though made under oath).
191. One of defendant's grounds for objecting to admission of the declaration was that
the declaration could not be admitted unless the cohort was also indicted and on trial, since
the declaration was ambiguous on whether defendant or his cohort did the shooting. Strick-
land v. State, 167 Ga. 452, -, 145 S.E. 879, 881 (1928). The court did not develop this
point.
192. Id. These grounds included: (1) declaration disclosed on its face declarant's lack
of knowledge of assailant's identity; (2) incompetence; (3) irrelevance of that part of the
declaration that also was not proper in a dying declaration (see note 166 supra); (4) nonjoin-
der of cohort as codefendant (see note 191 supra).
193. Id. at -, 145 S.E. at 881.
194. Id See also id. at -, 145 S.E. at 881-82.
196. Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 881-82 (1929).
jury, inter a/ia, that the writing, as a dying declaration, stood "upon the
same plane of solemnity as statements under oath" in that dying declara-
tions are "made in view of impending death and judgement, when the
hope of life is extinct and the retributions of eternity are at hand. '"1 97
The instructions did not tell the jury that the writing's declarations
"should have the same credit and force as if they had been sworn to by a
witness" or that they "were of superior value to testimony delivered on
the stand by a witness under oath."' 9 8 The instructions told the jury only
that if the jury "found that [the] . . . declarations were in fact made by
the deceased, then they stood upon the same plane of solemnity as state-
ments under oath, and were testimony to be considered by the jury." 9
The instruction was not a statement as to the weight of the writing, but as
' 20 0
to "the rule or reason why dying declarations are admissible.
That decedent supposedly stated he knew one of the officers shot him
does not have to mean that he actually knew or could have known, unless
such knowledge is presumed. The court said such a presumption was re-
quired because the presumption was not clearly contraindicated! Appar-
ently the presumption arose from a presumption that the decedent made
such a statement while apprehending he was about to pass into eternity
and meet the judgment of his God. This was highly speculative ground-
work for presuming the writing sufficiently trustworthy to be admitted: a
bundle of presumptions ultimately depending upon a bald assumption
that decedent was true to an appropriate religious belief. Worse, it put on
the defense the burden of showing that the writing did not reflect the
knowledge of decedent. Ordinarily, even in civil cases, the burden of
demonstrating the admissibility of hearsay is on its proponent. Given the
presumption of defendant's innocence, it was ironic that defendant bore a
197. Id. at -, 145 S.E. at 882. See id. at 883 (treating declaration as if deposition because
it was written!!).
198. Id. at -, 145 S.E. at 882.
199. Id. One wonders how the jury rationally could be expected not to treat the declara-
tion as though given under oath in light of the trial court's instruction. The jury's psychol-
ogy notwithstanding, it is difficult to appreciate the appellate court's microscopically nice
distinction. It is always true that a jury may choose not to construe a declaration as impli-
cating a person suggested by the witness-whatever the instruction or absence of instruc-
tions. Here, since the declaration was a writing signed by the victim (and defendant did not
challenge the signature or authorship), the only real issues were whether to treat the declara-
tion as testimony (like a deposition) and whether to believe it. On the former point, there
was no question but that the trial court expressly and effectively instructed the jury to treat
the declaration as testimony, ize., as though given under oath.
200. Id. Practically unimpeachable as to declarant's veracity, the declaration would
have had to have been given conclusive weight (at least as to its implicating one of the
deputies and excluding a third party) vi-d-vs the instruction that dying declarations, "being
made in view of impending death and judgment, when the hope of life is extinct and the
retributions of eternity are at hand, stand upon the same plane of solemnity as statements
under oath." How many of us would attribute such "solemnity" to a statement of a live
witness testifying under oath in court?
burden of rebutting the bundle of presumptions set up to insulate the

credit of an unconfrontable witness whose declaration was clothed with
assumed religious piety and treated as though made under oath. 20 1 By
what means could defendant have rebutted any of these presumptions?
Could he have shown that decedent was not in a particularly religious
state when he died? Despite the writing said that the decedent had talked
only about his pain, his view of the circumstances of his near arrest, his
wounding, and his feeling that he was soon to die, the presumption of
religious solemnity was applied. Such a judicial attitude does not seem
amenable to factual or sociological argument. Could defendant have
made a logical challenge to decedent's supposed knowledge of the depu-
ties' whereabouts and relation to the shooting? Given the requirement
that defendant show that the evidence precluded an inference that dece-
dent spoke knowledgeably, and given the court's view that it was enough
to show knowledge that decedent drew an identity conclusion from ambig-
uous appearances, 20 2 no argument upon the language or evidenced cir-
cumstances of the writing would have had a chance to prevail, whatever
the actual circumstances might have been. It was enough that some read-
ing of the writing allowed the jury to infer decedent's "primary
knowledge."
A showing of no conceivable basis for the inference was a virtual
impossibility because of the law of probabilities and the court's allowance
that the dead declarant be permitted to "conclude" what an available
witness would not be permitted to put in testimony.2 0 3 Here again the
"need" of the prosecution defeated the requirement of affirmative factual
proof beyond reasonable doubt. 20 4 Could defendant have impeached de-
cedent's competence or background or suggested bias? Defendant could
201. As to burden of showing admissibility, see notes 52-55, 114-21 and related text
supra. As to presumption of innocence, see note 164 and related text supra. The Strickland
court said that "where want of knowledge does not appear . . . from the statement itself
. . . it must be presumed that the declarant stated a fact within his knowledge." Strickland v.
State, 167 Ga. 452, -, 145 S.E. 879, 881 (1928) (emphasis added). This suggests a heavy
burden of going forward for defendant-as a practical matter if not in theory. Cf Bruton,
supra note 81, and Douglas, supra note 80, both involving written confessions, and Bruton
involving limiting instructions; Pointer, supra note 85, and Barber, supra note 36, both involv-
ing pretrial infrajudicial testimony under oath, and Pointer involving lack of counsel to cross-
examine declarant. In this context see Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 883
(1928), where the Strickland court treats the declaration there as though a deposition given
under oath.
202. Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 881-82 (1928).
203. Since the declaration was treated as though declarant's only problem was knowing
which of the two deputies shot the homicide weapon, defense counsel's only practical course
would be to point out the obvious-that the declaration merely narrowed the search to two
men, not solely to defendant. This obvious fact, however, apparently did not influence the
jury.
204. See Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 882 (1928) re "need." Com-
pare notes 26-29, 164 and related text supra.
not have excluded the hearsay on such bases. 20 5 Knowing that admission
was based on the ground that "dying declarants" are presumably truthful
despite their traits prior to moribundity, the jury would denigrate the
logic of such impeachments. Since such impeachments cannot test declar-
ant's demeanor, they would have poor psychological credibility and could
yield negative results.
Imagine a jury's treatment of the non-cross-examinable testimony of
a complaining witness who appeared before it under oath, supported by
the judge's voucher as to the witness's solemn religious morality. The wit-
ness has received a near mortal wound and suffered greatly. He has ac-
cused the defendant. The witness has not been impeached. The judge
has advised the jury that the witness's oath was solemn and underscored
the admissibility of the witness's testimony, despite the conclusory nature
of the testimony. Would the jury not think the testimony irresistible since
the judge declared it useful without cross-examination because of its reli-
gious solemnity? Might the jurors not think thus: "The 'law' and his
honor do not think the testimony needs cross-examining though it con-
tains crucial assumptions made upon unproven, ambiguous facts; so why
should we the jury, just common folk, discredit the testimony? His honor
would not have admitted such assumptions if we could not trust them.
Since the testimony has not been impeached, it must be true!" Since the
Strickland declarant, dead of a lawless shooting, had died worrying about
his wife and children and presumptively preparing to meet his Maker,
could the jury be expected to treat his "testimony" as less believable? De-
cedent may have seen the assailant(s) immediately after he was shot,
when, according to the writing, decedent turned, called for help to two
distant men who discarded a supposed cartridge and left without helping.
Decedent thus may have been able to identify defendant and/or his co-
hort, both of whom he knew, as the assailant(s), who may have been one
(or both) of those who discarded an object and disregarded decedent's
help-calls (though contrary inferences were equally probable). 20 6 Yet the
court did not hold the writing admissible for this reason, but rather be-
cause decedent had known that the deputies had attempted to apprehend
him earlier or because the writing declared that the deputies had been
20 7
pursuing him closely.
In both Wilson and Strickland,apartfrom the dying declarations, the cir-
cumstantial and eyewitness evidence was insufficient to convict. 20 8 The
205. See Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 881 (1928).
206. E.g., notes 180-86 and related text supra.
207. See Strickland v. State, 167 Ga. 452, -, 145 S.E. 879, 881-82 (1928).
208. See notes 143, 148, 159, 161, 189, and text surrounding notes 126-49, 155-60, 171-
77, 179-91 supra.
hearsay, then, was crucial, not peripheral and cumulative. 20 9 Since the
circumstances of the declaration were inflammatory and court's ruling or
instruction underscored or allowed free use of the hearsay, it was devastat-
ing. 2t0 In both cases, medical and psychological factors made questiona-
ble whether the declarant's perceptions or responses were trustworthy,
even if honest. 2 ' In both cases, as in Brulon and Douglas, the declaration
was at once quite suspect and very difficult to refute or limit properly,
and in Strickland the hearsay was a signed writing, as were the Bruton and
Douglas confessions. 2 12 Cross-examination of declarants might have torn
gaping holes in both declarations. 21 3 Though in both cases the hearsay
was at least seriously problematic vis-t-vts Pointer, Douglas, Bruton, Green,
and Dutton, the relevant constitutional issues were not considered since the
hearsay fit a very-long-recognized exception to the hearsay rule. 2 t 4
2. Veracity Not Assumed
In Wilson and Slrickland, the declarant's perception was a core prob-

lem. It is in the nature of dying declarations that declarant's perception
21 5
should be suspect; especially, as is usual, where he is in shock.
Suppose, however, an assailant has fatally stabbed a previously
209. Compare Pointer, note 85 supra; Douglas, note 80 supra; Barber and Berger, note 36
supra; Bruton, note 81 supra.
210. As to Strickland, this follows afortori from Bruton, supra note 43, where a limiting
instruction did not cure the effect of written, signed hearsay. As has appeared above, how-
ever, some jurists would distinguish Bruton either because the hearsay there was not a recog-
nized exception to the hearsay rule or because Bruton's hearsay was the confession of a jointly
tried codefendant. At least in Bruton, though, the codefendant's refusal to submit to cross-
examination could impeach his confession vis-h-vis its incrimination of defendant Bruton;
and the codefendant was present when his hearsay was introduced so that the jury could
watch his reactions and general demeanor. Moreover, again, there was a limiting instruc-
tion against using the confession against Bruton. In Wilson, the facts that the hearsay was
the oldest, most respected form and that it would arouse belief-inducing sympathy for de-
clarant worsened the harm of the lack of even Bruton-level "confrontation." In Strickland, an
instruction added affirmative weight to the hearsay.
211. See notes 155-56, 179 and related text supra.
212. Compare notes 79, 82, 88 and related text supra, with Dutton, note 59, at 87 supra
(plurality).
213. For example, both dying declarations were ambiguous and spoken under extreme
physiological and psychic stress, and neither declarant was a model of virtue. These and
other textual and personal infirmities could have been developed in depth. Moreover, it
would have been difficult for the declarants to explain inconsistencies between their declara-
tions and either the testimonies of other persons or the various implications of the circum-
stances of the shootings. Of course, in either case, declarant might have disclaimed his
declaration's assertions respecting defendant's culpability.
214. The confrontation clause was raised in Wilson-with a cite to Barber,supra note 37.
Counsel's argument and use of Barber, however, were inappropriate; and the court's treat-
ment of the relation between dying declarations and the Constitution was superficial and off
track. See note 161 supra.
215. If not psychological as in Wilson and Strickland, then psychic, also as in Wilson and
Strickland. See notes 155-56 supra.
healthy, irrefutably moral and ethical federal judge whose psychological

soundness has appeared unimpeachable. Suppose the injuries do not in-
clude head wounds. Suppose the man tried as his assailant was a perfect
stranger to the judge-the defendant having admitted that he had never
been in the judge's area of the county until shortly before the assault and
had never heard of or had any form of contact with the judge or his wife
before the moment of the assault. Suppose seconds after the assault, while
cradled in his wife's arms, decedent spontaneously gave to her, an exper-
ienced psychiatrist, a dying declaration describing his assailant. Suppose
the description fit defendant and included a statement that declarant had
heard someone call his assailant Bart as the assault occurred. Suppose the
wife had seen the assault. Suppose defendant's evidence is that the de-
ceased was mistaken-that another person, namely defendant's compan-
ion, committed the assault and that decedent had heard a third person
call defendant's name to ask him to help stop the assault. The hearsay
issue would be the accurac , of the description. The hearsay's function
would be to corroborate the incriminating implications of the wife's testi-
mony and that of any other eyewitnesses, and to focus these inferences on
defendant. If all of defendant's companions had been apprehended and
none strongly resembled defendant, the hearsay issue would be narrowed
to whether the victim's hearing someone call defendant's name had influ-
enced him to describe defendant mistakenly as the assailant. Though
more than peripheral or cumulative, the declaration would not be unduly
harmful or improperly crucial or devastating. Defendant could not argue
that decedent might have had a motive to falsify his description, or that
he was an untrustworthy sort. Similarly, defendant could not argue that
decedent had been biased by leading questions or that the witness to the
hearsay had a motive to prevaricate with respect to the description. Pro-
vided the declaration were adduced routinely in the course of an orderly
prosecution, defendant could not well argue that either the declaration or
the wife's testimony was an improper spectacle for the jury, was an abuse
by the prosecutor, or could be easily misunderstood or overweighted. In
such a case it would matter little that declarant was not available for
cross-examination. The likely question would be whether decedent's
physical condition affected his perception or recollection. This would not
have been very likely if the assailant had approached decedent frontally
and decedent had faced him while the knife was plunged. Assume dece-
dent had so described the assault. Defendant's 'mistake' theory would be
tenable only if decedent's condition could have warped instantly and
monstrously his senses or the trauma surfaced a deeply latent deranging
psychopathology.
In the case supposed, the latter possibility would not have been very
likely. However real, both possibilities would best be tested by expert
testimony that would not depend crucially on the victim's availability for
live examination. Decedent's medical and employment history, and simi-
lar matters would supply much of the necessary basis for medical and
psychiatric opinion on these possibilities. An autopsy and the testimony
of friends and relatives as to decedent's behavior would supply apprecia-
bly more. 2 16 The wife's testimony respecting decedent's apparent condi-
tion and testimony of attending physicians or paramedics would fill much
or most of the remaining needs. Suppose the victim had not died and the
charge had been attempted homicide. The declaration might be admissi-
ble as corroboration of any testimony the victim might give, especially vis'-
h-vzs a 'mistaken identity' defense. 217 The same foundation and expert
testimony would be the primary, if not exclusive, appropriate impeach-
ment. Assuming, arguendo, that the victim might have made a trauma-
induced mistake, the mistake might well be his only memory. 2 18 If his
memory waivered at trial, the prosecution's explanation might be that the
victim was insecure about his perception during and consequent to the
attack. If declarant were normal at trial and his history were normal,
where would rest impeachment? If the victim were deranged or notice-
ably neurotic at trial, the propensity might show up in his history. 21 9 Al-
ternatively, the psychopathology might have developed after signs of the
trauma had ceased and been unrelated to the trauma. 220 In any event, all
such possibilities would not be very likely under the given facts.
Yet this hypothetical may be misleading. I know of no such litigated
case. The chance of one is not great. More likely is another extreme-a
complex of perception and veracity problems. A popular law school
221
casebook has given fame to such a case-Connor v. S/ate.
In Connor, defendant and deceased, having once been long married,
had been divorced a substantial time. Their children lived with decedent,
the ex-wife, 100 miles from defendant's residence. On the day before de-
cedent's demise, defendant drove to decedent's house to attend his daugh-
ter's birthday party. Early after defendant's arrival, he and his ex-wife
shared each other's company amicably. Later decedent left her house and
216, But see notes 155-56 and related text supra. See generaly Part IIIB infa.
217, Cf United States v. Barbati, 284 F. Supp. 409 (E.D.N.Y. 1968); Colbert v. Com-
monwealth, 306 S.W.2d 825 (Ky. 1957); FED. R. EviD. 801(d)(I)(C)(1975). See also Bridges
v. State, 247 Wis. 350, 19 N.W.2d 529 (1945); FED. R. EVID. 803(24) and history thereto in
West Publication's compilation, at 134-36 (1975).
218. Compare notes 540-65 and related text fia. See also notes 464-67, 495-537 and
related text in/fa; Appendix, Survey questions 6(a)-(b), I l(d)-(e), 12, 13(a)-(c), and Tables
(A)-ItI app.
219. See notes 398-401, 409, 411-12, 414-15, 421, 423-26 and related text i'n/fa.
220. See notes 397, 400-01, 412, 421-26 and related text infra. See also notes 495-537
in/a.
221. 225 Md. 543, 171 A.2d 699, cert. dented, 368 U.S. 906 (1961). C. MCCORMICK, F.
ELLIOTT, AND J. SuTrON, EVIDENCE: CASES AND MATERIALS 386 (4th ed. 1971).
children, to return about 2 a.m. the next morning. Finding defendant

asleep in an upstairs bedroom, she smacked his face and harshly insisted
"downstairs was good enough for him."' 222 Defendant arose, dressed hast-
ily, descended the back stairs, collected some incidentals, exited the house,
entered and started his car, and turned on its parking lights. Suddenly he
noticed decedent standing at the driver's-side door. She demanded $25
she recalled he had promised her. He refused. They had an altercation
through the open, driver's-side front window as he attempted to drive
away. After a brief pursuit alongside the car, she took up a position in
front of it. He idled the motor while suggesting that he would give her
the $25 the next day. Then, again, he "started to move slowly"; but she
"insisted on staying in the same spot."' 223 He continued forward-about
ten feet, with her backstepping and screaming for the money. Then,
quite frustrated, he said he would not "see her any more," and "gave it
the gas" for about a hundred feet. 224 He had driven over her. At trial he
claimed he had been unaware that he was running her down. She had,
however, apparently been dragged several feet before being freed. Chest
crushed, bones badly broken, and vital organs fatally impaired, she died a
few hours later. Before she died, however, she produced much declarative
evidence that the prosecutor successfully adduced at defendant's trial.
Three witnesses were involved. One witness testified that while decedent
was lying injured in the street of the incident she asked that someone "get
a priest." 225 Another witness testified that decedent had continuously
pleaded that someone "take care of my baby." '226 Still another witness, a
policeman, testified to a number of her subsequent declarations to him.
227
The record of the policeman's testimony included this colloquy:
Q. What, if anything, did Mrs. Connor. . . say?
A. . . With the information I had received from [passersby], I asked
.
Mrs. Connor certain questions ....
Q. Was she conscious . . . ?
A. Yes, sir.
Q. What did you ask her . . . ?
A. Did your husband do this to you?
Q. What did she answer?
A. She answered yes. I asked her at that time "Was this an accident?"
This was acting on information I had received from passersby. I
asked: "Was this an accident or was it deliberate?" She answered:
"It was no accident."
The court held these items to be admissible dying declarations. Its
222. 225 Md. at -, 171 A.2d at 701.

223. Id. at-, 171 A.2d at 702.
224. Id.
225. Id. at -,171 A.2d at 703.
226. Id.
227. Id. (emphasis added).
"reasoning" was this: That decedent had been fully aware of her mori-
bundity followed from her asking for a priest, her pleading to have her
"baby" attended, and her having suffered a crushed chest. 228 Since the
pohceman had said she was conscious, and since she had described some-
thing ("it") as being "no accident," it was clear that decedent had re-
sponded rationally to questions she adequately perceived as suggesting
defendant's culpability. 229 Her rationality was also shown by her aware-
ness of her plight, this awareness being shown by her asking for a priest
and for attendance to her "baby. ' 230 Since declarant was aware she was
moribund, she must have been honest, and, being honest, would not fal-
sify her awareness of her moribundity. 23 ' At the same time, the "only
evidence of her state of mind [was] that she was conscious when [the po-
liceman] questioned her." 232 Her statement on whether "it" was an acci-
dent was not a declaration of past intent, because she had uttered it in
answer to the policeman's "direct question as to causation. ' 233 Declar-
ant's answer as to causation was so obviously "not vague or indefinite"
that the point needed no discussion. 234 Though the declarations involved
unsupported lay opinion, they did not "invade the province of the
jury ' 235 because it was "no longer possible to obtain from the. . . declar-
ant the detailed facts . . . [or] the inferences contained in the [hearsay]";
and, therefore, the declarations became "indispensable" despite the
23 6
form.
Given soundness, these conclusions would have fit the Connor hearsay
237
into subconstitutional standards for admissions of dying declarations.
Some are barely arguable at best, however, and the rest are untenable.
Though the court's exemption of the opinion from the lay opinion rule
followed a recognized pattern, 2 38 it also exposed the pattern's specious-
ness. What is really outrageous, however, is the court's apparent oblivi-
ousness to the vagueness, ambivalence, mystery, and aberration of the
declarant, her declarations, and their circumstances.
There had been evidence that decedent had been drinking on the
228. Id. at -171 A.2d at 703-04.

229. Id. at -,171 A.2d at 705.
230. Id. And see id. at -, 171 A.2d at 703-04.
231. Compare id. at -, 171 A.2d at 705 with id. at-, 171 A.2d at 703-04.
232. Id. at -, 171 A.2d at 705.
233. Id.
234. Id.
235. Compare id. at -, 171 A.2d at 704 with id. at-, 171 A.2d at 705.
236. Id. at -, 171 A.2d at 704. Similar treatment was had of the argument that the
declarations were inadmissible as responses to leading questions. Id. at -, 171 A.2d at 705.
Compare note 160 and related text supra; note 266 and related text inhfa.
237. On each point, the court properly cited authority like Wigmore, Wharton, and
McCormick which did at least superficially support it. See generally Connor v. State, 225 Md.
543, 171 A.2d 699, 703-05, cert. denied, 368 U.S. 906 (1961).
238. See 5 J. WIGMORE, EVIDENCE § 1447 (Chadbourn Rev. 1974).
night of her death. 239 Her behavior vis-h-vi's defendant was highly erratic.
Earlier she had been friendly to defendant. Then, after a night and halfa
morning out, she was rapacious, though nothing inciting had occurred
between decedent and defendant, except, perhaps, his sleeping in an up-
stairs room while she was gone. She had been gone for quite some time; it
was reasonable that defendant had stayed to tend to the children. His
falling asleep was not odd, suggestive, or presumptuous. He had traveled
a hundred miles to attend his daughter's birthday party. His ex-wife had
left him early alone with the children without instructions, limitations, or
a promise to return in good time. When she returned the next morning,
she did not demand that defendant depart, but only that he go "down-
stairs." She must have expected his stay.
There was no real opportunity to develop questions that might have
borne upon decedent's psychological condition. What had been the cause
of their divorce? Suppose she had been so ambivalent, unreliable, irra-
tional, erraticaly irrascible, and explosive for some time-had driven de-
fendant away, compulsively. Decedent's behavior suggested classical
characterological hysteria. 24 Hysterics are typically ambivalent, forget-
ful, irrascible, dissociated, emotionally unstable, histrionic, shallowly ro-
mantic, and not unlikely given to heavy drinking that exacerbates their
symptoms or traits. 24 ' Deeply affected in early childhood by a feeling of
239. See 225 Md. at -, 171 A.2d at 701-02: When defendant arrived at decedent's
house in time for his daughter's birthday party, apparently no later than early evening, his
wife was friendly. After some time, she left, not to return until about 2 a.m. the next morn-
ing, when her behavior unexplainably changed radically to wild violence. There was evi-
dence that decedent was a heavy drinker at times, and defendant testified that he and
decedent had had numerous affrays in past years-apparently associated with her drinking,
or so one may gather from the way the court juxtaposes these latter two facts in light of
decedent's radical behavioral shift to wild violence upon her very late return from a long
night out.
240. See notes 464-67, 519-20 and related text infra. Compare D. SHAPIRO, NEUROTIC
STYLES 123-29 (1965).
241. See note 519 and related text infra; W. REICH, CHARACTER ANALYSIS 45, 204-09
(1972) [hereinafter REICH]; D. SHAPIRO, NEUROTIC STYLES 118-133 (1965) [hereinafter
SHAPIRO]; Slater, Hysterta 311, 107 J. MENT. Sci. 359, 367-69 (1961) [hereinafter Hysteria
311]; L. HINSIE & SCHATSKY, PSYCHIATRIC DICTIONARY 94 (2d ed. 1953 with Supp.) [here-
inafter PSYCH. DiCT.]. Compare note 239 supra. Reich and others have noted the hysteric's
tendency toward acute anxiety and deep depressions. See REICH, supra, at 207-08. See gener-
ally Hysteria 311, supra. Like the phallic narcissist, see REICH, supra at 217-24, the hysteric is
genitally developed and active. Id. at 204-08. The female hysteric would seem to have
developed her neurosis in relation to her male parent's incipient but rejecting posture ois-a-
vis her genital development and strivings. Compare id. at 204-08 with id. at 217-24. The
phallic narcissist is prone to alcoholism. Given the particular factors common to the two
types, it would seem reasonable to expect that they would share, albeit in different degrees,
the tendency to drink. Indeed, one aspect of hysteria "can be described as a facility for
taking other persons' roles and changing from one of these roles to another." Marconi,
Oyarzun, Solari, and Munoz, Role Changing Aptitude and Recognition of Human Images in Hyster-
ics. A Preliminaiy Study, 132J. NERVOUS & MENTAL DISEASE 315 (1961). Nunberg, Character
and Neurosis, 37 INT'L J. PSYCHOANALYSIS 36, 41 (1956), developing a Freudian thesis, de-
being rejected by her previously attentive father at the critical stage of her
infantile sexual development, a female hysteric will use coquetry to hook
the attentions of many males but tend to undermine potentially satisfying
heterosexual relations that promise to be deep and long-lived. 242 Not sur-
prisingly, hysterics suffer a high incidence of marital incompatibility, sep-
scribed the "erotic" character as having a genital libido and being predisposed toward hyster-
ical symptoms like anxiety. The "erotic" character has no active sense of guilt and aims at
genital gratification through an object by whom the character seeks more to be loved than to
love. "They seek only pleasure regardless of their own safety as well as that of others, since
their ego and superego are not strong enough to resist the demands of the id." Id. (See notes
440-53 and surrounding text infa re: terms like "libido" and "superego.") This too suggests
relevant overlaps of traits.
Clinicians I have consulted have indicated that their experience has been that hysteria
is quite compatible with alcoholism or heavy drinking--especially periodic heavy drinking
associated with depression. Conversations with Robert Kanovitz, M.D. (Psychiatry,
Nephrology, and Internal Medicine), Louisville, Kentucky; Morton Herskowitz, D.O.
(Clinical Professor of Psychiatry, The Philadelphia College of Osteopathic Medicine); David
Teller, Ph.D. (Assoc. Prof. of Psychiatry and Behavioral Science, University of Lousville);
Paul Adams, M.D. (Professor and Vice Chairman, Dept. of Psychiatry and Behavioral Sci-
ence, Univ. of Louisville); Joseph Leroy, M.D. (Ass't. Prof. of Psychiatry and Behavioral
Science, University of Louisville); and Roger Bell, Ed. D. (Assoc. Prof. of Psychiatry and
Behavioral Science). Doctors Herskowitz and Adams thought that though steady, heavy
drinking is not greaty typical of hysteria, heavy drinking is quite consistent with and not
uncommon in hysteria, especially with acute hysterical anxiety depression. Dr. LeRoy
thought there was a significant positive correlation between hysterical character and drink-
ing. Dr. Bell saw no inconsistency between hysteria and drinking. Dr. Teller said he knew
of no clear correlation and showed some doubt whether the hysteric's anxiety or ego struc-
ture would be inconsistent with drinking, though he noted that people drink to come off
depression or relieve anxiety and that hysterics can have anxiety depressions. Dr. Teller
suggested that, because drinking is "learned behavior" while hysteria is in some sense
preconditioned or anticognitive, any case of a drinking hysteric.would be a coincidence of
qualities having no inherent relation. Dr. Kanovitz said that a hysteric "is not protected
from drinking" by her neurotic structure as might be some other neurotics, e.g., an obses-
sive/compulsive with a propriety syndrome. Dr. Herskowitz (who has practiced psychiatry
for 25 years and "many" of whose "female patients have been hysterics") said that alcoholic
intoxication could cause emergence or exacerbation of hysteric symptoms or traits. Dr. Le-
roy said that clearly intoxication would exacerbate symptoms-especially those affecting
impulse control, so that ambiguity, suggestibility, romanticism, or histrionics might increase
or become more irrational. Dr. Bell's thoughts coincided with these views. Dr. Adams was
not certain all hysteric symptoms or traits would be exacerbated, but he was sure that the
hysteric would be more histrionic-even peculiarly irrascible. Dr. Teller said that intoxica-
tion either would not affect or would displace hysterical symptoms, but that symptoms of
intoxiation (like hallucinations) may be mistaken for those of hysteria. Another member of
the University of Louisville's Psychiatry and Behavioral Sciences Department (an M.D. who
wished to be unnamed) had no opinion on whether hysterics tend to drink, but he did say
that "mild" drinking would tend to exacerbate hysteria though heavy drinking's depressive
effects might reduce symptoms. See also Appendix, Survey questions 11(d)-12 and Tables
II(A)-II(B) in#a.
242. See W. REICH, supra note 241, at 164-65, 204-09; SHAPIRO, supra note 241, at 124-
32 (1965); Miller and Chotlos, Obsessive and HstericalSndromes in the Light ofExistential Consid-
erations, I J. OF EXISTENTIAL PSYCH. 315, 320-323 (1960) [hereinafter Miller & Chotlos];
various writings of Freud, cited infa note 464. See generally, THE PSYCHOANALYTI READER,
185-236, 285-287 and ONTOGENETIC TABLE (Fliess ed. 1948) [hereinafter READER]; Hysteria
3/1, supra note 241, at 369-70.
aration, and divorce. 243 Some hysterics may defend against emotional
deprivation by seeking money compensation. 244 Some of these or others
might fall into promiscuity, serial sexual affairs, or prostitution. 245 While
not generically suicidal, 246 hysterics often suffer acute, deep depression or
translate their coquettish feelings into a more radical aggressive passivity
that may manifest in self-endangering adventures intended to grapple the
243. E.g., Hysleria 3/1, supra note 241, at 368-69; HARRISON, supra note 155, at 1865-66.
See REICH, supra note 241, at 165, 204-09; READER, supra note 242, at 232-33.
244. HARRISON, supra note 155, at 1865-68. See also S. FREUD, NEW INTRODUCTORY
LECTURES ON PSYCHOANALYSIS, 100-01 (Strachey ed. 1965) [hereinafter NEW INTRO. LEC-
TURES]; Hysteria311,supra note 241, at 369 (compensation neurosis); REICH, supra note 241,
at 88, 97-99 (the "money matter").
245. This follows from the hysteric's extraordinary preoccupation with sex, her "genital-
izing" everything, her use of sexuality as its own defense, sexual agility, histrionics, primitive
narcissism, pressing need for variety, inability to sublimate (to transmute sexual or libidinal
energy into intellectual or other, productive or creative activity) except (perhaps) in money
compensation for nonlove, her tendency toward hyperdependence on dominant (albeit
flamboyant or irrational) men, and her incapacity for fulfilling sexual and marital exper-
iences. Compare REICH, supra note 241, at 205-08, quoting Ferenczi, and Hysteria 31/, supra
note 241, at 367-70 with HARRISON, supra note 155, at 1865-68 and Miller and Chotlos, supra
note 242. Compare alsoREADER, supra note 242, at 223, 232-35 and PSYCH. DICT., supra note
241, at 94 with DUMONT & Foss, THE AMERICAN VIEW OF DEATH 87 (1972) (perception of
love as gratifying others). But see READER, supra note 242, at 215. Yet see Freud, Fragment of
an Analysis of a Case n Hysteria, 3 COLLECTED PAPERS 13 (1950); FINE, FREUD; A CRITICAL
REEVALUATION OF HIS THEORIES, 117-19 (1962) [hereinafter FINE]. Conversations with
Doctors LeRoy, Bell, Adams, Teller, and Herskowitz, supra note 241, would support the
assertion of a correlation between hysteria and prostitution. Doctors Adams, Teller, and
LeRoy were quite positive on the subject, Dr. Teller opining that most prostitutes are hyster-
ical characters, Dr. Adams observing corroboratively that hysterics are likely candidates for
extreme promiscuity and prostitution, and Dr. LeRoy saying that hysterics often demon-
strate promiscuity or serial sexuality, sexual shallowness, castrating-appearing attitudes, and
love-hate feelings or rejection/invitation behavior-all indicating that prostitution would be
a logical step. Another University of Louisville Department of Psychiatry faculty member
(an M.D. who wished to be unnamed), said that while hysterics may flirt, they would avoid
real sexuality and would not commonly engage in prostitution.
246. Hysterics develop deep anxieties and depression. E.g., REICH, supra note 241, at
206-08. They are also accident prone. E.g., HARRISON, supra note 155, at 1865-68. Yet
studies of the etiology of suicide do not single out the hysteric as a uniquely high-risk group.
Being convertive, anxious, sometimes deeply depressed, insatiably unsatisfiable, sometimes
frenetic, and accident prone, however, hysterics fall into that group of neurotics more likely
than the norm to commit suicide or take their lives. Compare R. KASTENBAUM & R.
AISENBERG, THE PSYCHOLOGY OF DEATH 252-361 (1972) [hereinafter cited as KAS-
TENBAUM & AISENBERG], Leveton, Time, Death and the Ego Chill (1966), reprintedin SCOTT &
BREWER, CONFRONTATIONS WITH DEATH 147-51 (1971), and R. DUMONT & FoSS, THE
AMERICAN VIEW OF DEATH 26-28, 87 (1972) with Miller and Chotlos, supra note 242, at
321-23, REICH, supra note 241, at 207-08, and HARRISON, supra note 155, at 1865-68. Compare
also REICH, supra, at 88-121, 164, 204, 205, 207-08 with WEISMAN, THE REALIZATION OF
DEATH 97-108 (1974) (especially at 99-102, 104-07). Quite relevant to Connor is the asserted
propensity of women to serious or fatal falls. KASTENBAUM & AISENBERG, supra, at 355. See
also Hysteria 311, supra note 241, at 360-61 (depressed hysteric with wild affairs with odd
partners made several suicide attempts); id. at 361-62 (hysteric faints and falls); PSYCH.
DICT., supra note 241, at 273 (anxiety-based fugues, delirium, blindness, anesthesia,
paralyses, abnormal movements, and other motor dysfunctions, etc.); note 466 and accompa-
nying text infra.
ARKANSAS LAW REVIEW (Vol. 33:227
attentions of an elusive man. 2 4 7 Concordantly, the hysteric's emotional

volatility makes her accident prone.2 48 It has been said that women have
come to perceive sensual and relational gratification in terms of giving
rather than receiving. 249 Experts in death and dying have suggested that
a lonely, frightened, moribund woman, overwhelmed by anxiety about
the ultimate loss of being wanted or needed, may feel her husband respon-
sible for her worst plight-her dying alone with her husband remaining
alive without her care. 250 Since hysteria may be the commonest charac-
ter disorder among women, 25 1 chances are that hysterics may share such
emotional inversions. What of decedent?
Decedent and defendant had been together with their children on
the day of their daughter's party, until, about dinner time, when decedent
departed precipitously. They had been living apart for some time. De-
fendant was a kindly man and a concerned father to her daughter. He
was friendly and probably warm. She appeared to feel friendly toward
him. It would have been easy for her to have reminisced romantically
about old times with him, to have begun to slip into reverie. She may
have become depressed over their separation-even guilty. Why did she
remain out all night and part of the next morning? Had she a date with a
man? Was he a lover or a "customer"? Did she feel bad or guilty about
it? Did she instead leave in frustration-seeing again her "father" re-
jecting her and feeling simultaneously at fault and angry? Was she thus
driven to drink-to a trek from bar to bar, anxious or depressed, in search
of a substitute or an escape? Did she return more frustrated, depressed,
disconsolate, frenetic? Was it the last straw that he had remained with
the children, and even lay upon what might have been their marriage
bed? Was it unbearable that he had remained with their daughter-now
a "competitor? ' 252 Was she about to explode emotionally into a million
shattering pieces? In such a scenario, the colors and implications of the
ensuing events would be markedly different from the views and inferences
of the Connor court. When decedent found defendant sleeping in the up-
stairs bedroom she did not tell him to leave her home, but only that
"downstairs was good enough for him." Was this an expression of hysteri-
247. See notes 240-46 supra, re: agile hysterical narcissism. See, e.g., REICH, supra note
427, and notes 240-43, 245-46 supra re: passive-aggression. See note 246 supra re: self-threat-
ening symptoms or behavior (and see also notes 256-58 znfra).
248. E.g., HARRISON, infranote 155, 1865-68. Compare notes 241 and 245 supra.
249. E.g., R. DUMONT & Foss, supra note 246, at 26-28, 87. See also note 245 supra.
250. See R. DUMONT & Foss, supra note 246, at 87.
251. See note 464 mn/fa.
252. Eventually, the Oedipus complex (see note 447 nfra and READER, supra note 245,
at 192-36, 261-87 and "ONTOGENETIC TABLE") pits daughter against mother in a
struggle for the father's genital attentions. It has been fundamental to psychoanalytic and
related theories of neuroses that the struggle may never be resolved. See notes 439-67 and
related text thfta; notes 242-43 and related text supra.
Cal ambivalence? 253 Perhaps she wanted his warmth, could not admit or
express her feelings, felt anxious rage at his unreachable availability, but
did not want his departure because deeply she was driven to hope for
contact with him. When he left, she chased after him. She asked for
money she then recalled he had "promised." Was her money demand a
defense against his rejecting her, against her admitting outright her desire
that he stay, a "compensation" that might substitute for his contact or
rebuff him for not needing her? 254 Was her violent contact ("alterca-
tion") with him an expression of such love-hate ambivalence and, at the
same time, a grasping for or giving of some form of "warmth" or recogni-
tion-an alternative better than another man's "desertion? ' 255 He tried
to leave; he began to find her tedious, annoying, pointlessly frustrating.
Her father was rejecting her again; but she was causing it; the situation
was within her control. 256 What a low rejection! She blocked his exit,
backpeddling in front of his moving car, daring him to commit the ulti-
mate rejection, simultaneously putting herself in a fatal danger that
would be his "fault" and would release her but make him feel sorry for
her-feel a big feelingfor her, really know what he had done to her, really
know what he had missed, would miss! Suicidal? Perhaps not. 257 But
full of satisfying fantasy. Amidst the frenzy, flailing, and racing back-
wards, amidst the screaming, and daring, and demanding, did she fail to
see his exasperation, to respond to his gasping need to depart, his expecta-
tion that she-or any woman in her right mind-would take the cue, get
out of his way? Did she instead-as he-go "blank" and trip and fall
before, and then beneath, his moving car? Was "it" part accident, part her
design? Was "it" her "fault" in torturing him into mindless negligence? Was
253. See, e.g., REICH, supra note 241, at 165, 205, 207. Compare note 252 supra with Mar-
coni, Oyarzum, Solari, and Munoz, note 241 supra. See also note 243 supra.
254. See note 244 supra. But note that there was evidence that a day before the incident
defendant had promised decedent $25. But cf the masochistic character, whose seeming
love of pain can be explained as a seting up of a pain far less than the horror deeply feared
(e.g., castration). REICH, supra note 241, at 237-41. Compare id. at 242-43, 244-46, 250 (prov-
ocation, spite, and defiance as indirect means of obtaining or avoiding guilt or self-disdain
for failing to obtain love). See also SHAPIRO, supra note 241, at 18-19. Compare REICH, supra
note 241, at 192, 206-08 (hysteric symptoms superficially same as those of other neurotic
characters) and id. at 88, 94-97 (masochistic-like behavior) and READER, supra note 242, at
232-33 (masochistic elements in hysteria) with notes 243-46 and accompanying text supra.
255. See note 254 supra. Compare note 252 and accompanying text supra with note 242
and accompanying text supra and FINE, supra note 245, at 117-19.
257. But suicide, and victim-precipitated or partly victim-caused involuntary homicide,
seem clear probabilities. Compare notes 239, 241, 246, 253-56 and related text supra, and text
following this note through end of this note's paragraph, with note 290 nfira, for the basis of
an inference that general statistics on homicide and hysterical symptoms and traits, all taken
together, may explain the Connor death in one of these ways. See also NEW INTRO. LEc-
TURES, supra note 244, at 45-47.
it in one of these ways that "it" was "no accident," that he had done
"this" to her? Was "this" his "rejection" of her?
It was not necessary that she be an "hysteric" not to have been mur-
dered.2 5 8 She could have been a masochistic character. 259 She could
merely have been frustrated, drunk and jealous. 260 Was she presumably
"conscious" and "rational"? The policeman had not witnessed the affray
or known that she might have been drunk and half crazed. He was not
trained enough to understand or diagnose full "consciousness. ' 261 What
was the value of his "pronouncing" her conscious? How could his "pro-
nouncement" rationalize her prior calls for a priest and for attention to
her "baby"-her "consciousness" at those times? Psychopathological or
normal, a "conscious" person in severe shock can be "drunkenly," hysteri-
262
cally delirious or deranged.
Who was her "baby" (singular)? If, as appears, defendant and dece-
dent had been separated for some time but the children were thezi chil-
dren, none would be a baby in the sense of "infant." Did she mean the
youngest one, who might not survive alone? All of her children were simi-
larly situated. Or was she feeling guilty about the birthday daughter
whom she had resented as a "competitor" for her ex-husband's attentions?
258. But decedent's having had a hysterical character would readily explain her death
as "accidental," and perhaps more readily than other character structures would. In view of
note 257 supra, consider that the kinds of behavioral and somatic symptoms hysterics have,
taken together, perfectly fit the circumstances of the Connor victim's death.
259. See note 254 supra, especially SHAPIRO and REICH.
260. But as indicated above, drinking might follow hysteric frustration and jealousy and
might exacerbate these and other hysterical symptoms or traits. See note 241 supra.
261. There was no indication in the record whether the policeman had received
paramedical training or otherwise had a background making him competent to give evi-
dence on the "consciousness" or "rationality" of the victim. Cf Commonwealth v. Cavalier,
284 Pa. 311, 131 A. 229 (1925); Roberts v. Pittsburgh Pub. Co., 330 Pa. 44, 198 A. 668
(1938); Walker v. Walker, 106 N.H. 282, 210 A.2d 468 (1965). Respecting any indication
the victim may have given as to her physical or psychological state, see also, e.g., Annot. 67
A.L.R. 10 (1930), 80 A.L.R. 1527 (1932), 130 A.L.R. 977 (1941), and Casualty Ins. Co. of
California v. Salinas, 160 Tex. 445, 333 S.W.2d 109 (1960).
262. Compare WEIL, note 155 supra, at 251, 257, and T. HARRISON, note 155 supra, at
224, 1772-73, 1865-68 with SCHUMER, note 155 supra. See also,
note 249 supra and Appendix,
Survey questions 1 l(d)-I l(e), 12 and Tables II(A)-II(B) tina. As to the possible interface of
hysteria and traumatic, physiological shock, Doctors Adams, Herskowitz, and Bell, note 241
supra, indicated that shock would tend either to exacerbate or exaggerate hysterical symp-
toms or traits. Dr. LeRoy said that he had no opinion. Dr. Teller said that shock would tend
to cause the hysteric to drop her defenses and hence to cease exhibiting hysterical symptoms;
but he added that in early stages of cardiovascular shock (but after the waning of reaction to
the traumatic cause) the symptoms and traits might reassert themselves-briefly, or until the
shock substantially worsened. Contra Dr. Teller, see also note 271 infra, Appendix, Survey
questions and Tables cited supra (this note), and notes 495-522, 557-65 and related text infra.
Also note that another member of the faculty of the University of Louisville Department of
Psychiatry and Behavioral Science (an M.D. who wished to be unnamed) said in a personal
conversation with me that shock may exacerbate hysterical symptoms or traits (his answer
being "maybe"). See also A. WEISMAN, note 426 rn/a, as cited there; E. KUBLER-Ross, note
426 bn/a, as cited there; Lammers, note 426 in/ia.
Was she pregnant? It was not reported, and surely there would have been
an autopsy. Could "baby" have meant her "ex-husband" whom she had
just impulsively wronged? Defendant would no longer have her though
he needed her protection. He might suffer for her actions. If she had
believed she would die, she might have been afraid he would be wrongly
blamed. If delirious with shock, intoxication, hysteria, and guilt, she
could not have been expected to express such feelings with normal
sense. 263 She may have been reliving-literally mixing with the pres-
ent-an earlier, happier time when she and defendant lived together with
their first new child.2 64 What of her call for a priest? Did she want to
confess?-Because she was dying, or because she had wronged her man,
or both? The court's assumption that she knew she was moribund ex-
plained nicely her interest in a priest, and her wanting a priest nicely
supported the court's assumption. Its circularity aside, this "logic" does
not prove decedent's rationality, clarity, or singlemindedness in calling for a
priest or expressing concern for her "baby" or in answering the police-
man's leading, yet ambiguous questions. Again, what was "it" that had
been "no accident" and "this" that the policeman suggested defendant
had done to decedent? Given the assumption that defendant was crimi-
nally or civilly liable, the referents, the antecedents, are clear. The as-
sumption, however, was the issue. More important, what did "it" and
"this" mean to decedent? If she "heard" 'situation' when he said "it" and
"this," her answers would not clearly have incriminated defendant. If she
understood his meaning (which apparently derived from hearsay suggesting
defendant had assaulted her criminally), she might have answered as she
'265
did to "get even" with defendant, or with men, or with her "father.
Or, that she said "it was no accident" might have implied only that she
had made it happen in some sense. To the extent they were not ambigu-
ous, the officer's questions were leading; and hysterics are very suggesti-
ble. 266 Hysterics are not only suggestible but are discursive and prone to
263. Compare note 262 supra with notes 465-67, 495-522, 540-65 and related text in/ra.
264. Hysterics tend to romanticize everything, as they tend to genitalize, flirt, and
fantasize. Compare D. SHAPIRO, note 241 supra, at 118-23 with W. REICH, note 241 supra, at
204-06. Note the ambivalence of the Connor victim vis-h-vis her husband; initially she was
friendly, but after her night out she was wildly hostile. See notes 221-23 and related text
supra. Compare notes 241-42, 247, 253-56 and related text supra. Apparently the victim once
loved or was significantly fond of defendant; she married and had children with him. Com-
pare note 243 and related text supra. As to the relation of trauma and drinking, see notes
239-41, 246, 248, and related text supra, and notes 495-522 and related text infra.
265. Compare notes 465-67, 495-522, 558-63 and related text infra with note 254 supra,
READER, note 242 supra, at 223, 232-33, S. Freud, Fragment ofan Analysis ofa Case of Hysteria,
note 464 in/a and FINE, note 245 supra, at 117-19.
266. See note 519 infra. See Miller and Chotlos, note 242 supra, at 320-23. Note that
Freud was quite successful in hypnotizing often his early hysterical patients. FINE, note 245,
supra, at 16, citing S. FREUD, STUDIES IN HYSTERIA (with BREUER, 1895). See D. SHAPIRO,
note 241 supra, at 113-15.
perceive romantically, to falsify, to forget rapidly, and to respond to press-

ing questions ambiguously or irrelevantly, especially where their core de-
fenses are strained.2 6 7 Their tendencies may be exacerbated or
compounded by alcoholic intoxication. 268 The psycho-physiological im-
plications of either or both hysteria and drunkenness may be exaggerated
or compounded by severe, traumatic, physiological shock.2 69 Recall the
indications that decedent may have been a hysterical character and may
have been drinking. It has been said that "traumatic psychoses" often
associated with traumatic shock may "lay bare" some "constitutional pe-
culiarities" like those caused by alcoholic brain damage. 27 0 Traumatic
psychosis is not inconsistent with hysteria, and there was evidence that
decedent had been a heavy drinker (at least at times). To the extent dece-
dent's declarations appeared clear,, it is relevant that shock victims may
27
mask a fearful emotional turgor with deceptive, delirious calm. '
Had (as the court assumed) decedent been innocent, emotionally sta-
ble, and sober, she yet might not have been physically in a position really
to know all of how she was injured. Similarly, because of shock, she may
not have been able to sort out her memory as to the collision and its
proximate cause, which may have been her tripping and falling rather
than defendant's intentionally running over her. Having attributed to
decedent the presumptive trustworthiness with which dying declarants
are clothed, the court did not inquire into such possibilities; since dece-
dent acted so as to appear she knew she was dying, she must have been
trustworthy; and since she was trustworthy, she would not mislead on-
lookers to think wrongly that she knew she was dying or that she could
explain what she did not clearly know. With such "reasoning" governing
the court's attitudes, there was no questioning whether she just plain
bied-out of hate for defendant, life, or the world, or to defend herself.
These problems were compounded by the exemption of the declaration
from the lay opinion rule. Once a lay-opinion-declaration is deemed
"necessary," cardinal weaknesses it shares with testimonial lay opinion are
disregarded. It may be reasonable to accept a common sense opinion
267. Compare SHAPIRO, note 241 supra, at 108-33 and Miller and Chotlos, note 242 supra,
at 320-23 with notes 465-67, 519-20 (especially W. REICH, Hysteria 311, and T. HARRISON)
and related text infra and Appendix Survey questions 11(d)-I 1(e), 12 and Tables II(A)-lI(B)
rnfra. I obtained corroboration of these suggestions from Dr. Herskowitz, note 241. supra.
268. Compare notes 241, 263, & 267 supra.
270. See notes 411-12, 426, 495-522 and related text tn/fa.
271. Compare M. WEIL, note 155 supra, discussing BARTLE-'r, THE SHENNENDOAH
TRAGEDY (1947) (apparent lucidity-even apparently increasing lucidity- of shock victim
suffering fatal wound) with SCHUMER, note 155 supra (while capable of taking remedial
action, shock victims tend toward delirium and derangement because of blood drain from
brain), and T. HARRISON, note 155 supra (corroborates SCHUMER) and Lammers, note 426
i /a (exaggerated feelings).
where it is pre-emptively necessary. It is not reasonable to accept a lay

opinion that is not clearly founded on common sense; for it would not be
necessary proof. Being illogical, it would be no proof at all. Since dece-
dent was irrebuttably presumed trustworthy and aware of the solemnity
of the occasion, defendant could not have addressed these matters with
any practical hope of success. 272 He could not keep her declaration from
the jury. Though his counsel was allowed to impeach her declaration,
how could he do so effectively in her absence? Despite evidence of her
instability and rage and other impugning attributes, the court admitted
the declaration under the talisman that it was uttered under "an obliga-
tion as solemn as that of a positive oath to tell the truth. ' 273 Only de-
fendant's word stood against her declaration's incriminating implications.
As is proven by the Patricia Hearst trial, a winning psychological case as
to the excusable intent of an available defendant presumed innocent is
enormously difficult. What of psychiatric proof of the culpable mentality
of a poor dead victim whose declaration's trustworthiness is irrebuttably
presumed? Could a psychiatrist-witness convincingly--or legally-de-
velop the matters adumbrated above? In view of rules of relevance and
such related rules as that which avoids "collateral" evidence, and in view
of the legally and practically preclusive effects of the battery of prosecu-
tion-favoring presumptions in Connor, the defense was hamstrung.
The Connor court's process was upside down. It ought not to have
been that declarant's opinions were proper proof because the state needed
them. It ought to have been they were inadmissible unless defendant did
not need to impeach them.2 74 The Connor opinion recalls no eyewitnesses,
and recites only incomplete circumstantial evidence. Thus decedent's
declaration was crucial and must have appeared devastating to a jury not
moved to consider either the syntactical antecedents of "this" and "it"or
the marital, environmental, and psychological history of decedent's de-
mise. It ought not to have been that the jury was invited to presume such
declarations trustworthy as under oath notwithstanding defendant had no
practical way to impeach the presumption without confronting declarant.
It ought to have been that the declarations were presumed znadmissible
unless and until they were proven at least capable of being believed beyond
a reasonable doubt. 2 75 Since the "necessity" rationale in Connor really
272. See 225 Md. at -, 171 A.2d at 705.

273. Id at -, 171 A.2d at 705.
274. Compare Phillipsv. Neil as discussed in note 121 suopra. The Phillips court applied
Dutton and Green (see generally Part IA supra). Unlike declarant(s) in Phillps, the Connor
declarant did not possess even arguable expertise and was not disinterested in the subject she
was addressing.
275. See part IIIA in/ia. Though the Supreme Court has not directly determined
whether a fact cannot be presumed by a jury in a criminal case unless the jury accepts the
basis beyond reasonable doubt (ef note 372 and accompanying text in/ra), the issue does not
depended on an assumption that defendant had silenced his victim by

murdering her, it violated the presumption of innocence. Had the dying
declaration rule not been the most venerable exception from the hearsay
rule, the result in Connor might have been different. Courts like that in
Connor appear to feel that it is too late to reexamine the rule. But the
rule's antiquity-its origin in ancient untested beliefs and motives-is one
reason for seriously questioning the rule.
In the early seventeenth century treason-and-murder conspiracy trial
of Sir Walter Raleigh, 276 Lord Cobham, facing execution for conspiring
with Raleigh, accused Raleigh not only of instigating the conspiracy but
of compelling him, Cobham, to participate in a mean way. 2 77 Cobham's
accusation was part of his confession. 2 78 Though he had once repudiated
such accusations, he was finally convinced to stand on them. 279 Raleigh
demanded that Cobham be produced, offering to abide by Cobham's tes-
timony if he could accuse Raleigh, face to face. 280 His demand was re-
fused, ther ah'a because the court could not believe that a man about to
meet his Maker would falsely accuse another. 28 1 Raleigh was convicted.
Later there was evidence that King James had trumped up all the
charges out of madness or desire to gain power over Raleigh and his allies,
or both. 28 2 Indeed, Cobham was reprieved while standing on the gallows,
and history suggests that the King timed it so for effect. 28 3 Coinciden-
tally, Raleigh was reprieved to sail abroad--exiled, but in search of
money, land, or power for the King;28 4 ironically, Raleigh was eventually
executed. 285 Scholars and courts have agreed that Cobham lied to save
his skin,28 6 but the Raleigh case, a pr'na reason for the confrontation
affect the proposition in the text, because of United States v. Gainey, 380 U.S. 63 (1965).
Gaihq held that a statutory presumption otherwise challengeable did not deny due process
where the trial judge instructed the jury that they could acquit defendant despite he did not
rebut the presumption to their satisfaction, since they were not bound to adopt the presump-
tion even though it were sufficient to support a conviction. To the extent trial courts follow
Gathny, convictions will (theoretically) depend on juries' believing all proofs (presumed or
not) beyond reasonable doubt. See also Taylor v. Kentucky, 436 U.S. 478 (1978). See gener-
a4 note 164 and related text supra.
276. See generally C. BOWEN, THE LION AND THE THRONE 183-224, (1956). See also
United States v. Payne, note 76 supra, at 455, 458, 460-61 (dissent); Commonwealth v.
Brown, 388 Pa. 613, 131 A.2d 367, 370-71 (1957) (Musmanno, J., dissenting).
277. BoWEN, note 276 supra, at 183-87, 190-94, 196-201, 209-17, 219-22. See also Payne,
note 76 supra, at 458 (dissent); Brown, note 276 supra, at 371 (dissent).
279. BOWEN, note 276 supra, at 197, 212, 214-16, 220-21.
280. d at 201-03, 209.
281. See id at 213, 215. Compare id at 219, 221-22 with Brown, note 276 supra, at 371.
282. See BOWEN, note 276 supra, at 183-87, 191-92, 199-200, 206, 207-08, 209, 218-24.
Compare Brown, note 276, supra at 371.
283. BOWEN, note 276 supra, at 221-24; Brown, note 276 supra, at 371.
284. BOWEN, note 276 supra, at 367, 414-15.
285. Id at 217-24, 367, 414-17.
286. See id at 219-24; Brown, note 276 supra, at 371. See also note 282 supra.
clause,2 8 7 has many modern counterparts.28 8 Though the Supreme Court

has said that a questionable presumption's venerability will not justify
it, 2 8 9 modern courts still unquestioningly follow the Raleigh presumption
of the trustworthiness of dying declarants.
3. Synthesis and Modulation

Most homicides are violent or passionate and many are victim-pre-
cipitated or at least partly so.29° Many of these occur in confounded cir-
cumstances. 29 1 Probably more than half of us suffer characterological,
neurotic, or other, substantial, psychic or emotional problems at least
sometimes. 292 Many others are, have been, or will be psychotic or simi-
larly disabled. 293 Even healthy or "normal" people can suffer delusions
or hallucinations. 294 People daily operate on incomplete or inaccurate
perception or data-so much so that they do not notice-and all of us are
capable of lying, prevaricating, inventing, disregarding, or acting out
wishes and hatreds. 295 When people are shocked by their own, unex-
pected, imminent deaths, their immediate reaction is rage, even at God,
religion, and morality. 296 Various of these factors may merge around a
homicide or suicide victim's injury and final experiences and may pre-
clude reliable perception, analysis, and communication. What, then, re-
287. E.g., Payne, note 76 supra, at 458-64.

288. E.g., White v. State, 30 Tex. Crim. 652, 18 S.W. 462 (1892) (dying declarant's
statement-that a certain person with two others had shot him and that the certain person
alone knew of the plan to murder him-repudiated, false, and impossible, yet not error to
admit declarations on standard presumption of trustworthiness). See also Brown, note 276
supra, at 370-71, 373-74 (dissent).
289. See notes 361-67 and related text thfra.
290. Compare S. PALMER, THE VIOLENT SOCIETY 40-43 (1972), 2 CRIMES OF VIOLENCE
208-10, 216-18, 220-35, (Staff Report to National Commission of the Causes and Prevention
of Violence, Donald Mulvihill and Melvin Tumin, Co-Directors, U.S. Gov't Print Off.,
1969) andJ. MACDONALD, THE MURDERER AND His VICTIM 40-41, 64-67, 73-74 (1961)
with R. KASTENBAUM & R. AISENBERG, note 246 supra, at 252-361.
291. Compare Wison, Strickland, and Connor, notes 123, 124, and 221, supra respectively,
with Commonwealth v. Brown, 388 Pa. 613 at -, 131 A.2d at 373-74 (dissent).
292. See notes 392-94 and related text in/ia.
293. Compare note 292 supra with notes 495-500, 540-46, 558-65 and related text infra.
Many readers will remember public interest advertisements, on television and radio, sug-
gesting that I out of 10 of us will spend time in a mental institution. According to the
Kentucky Mental Health Association (per Ascher Tullis, 1979) fifteen per cent of the Ameri-
can population will be "seriously mentally ill" atsome time in their lives.
294. The social drinker who has had too much, the auto driver who has driven too long
at night, the exhausted foot-traveler on a desert who has lost his water supply-all of these
are so well known to suffer mirages or delusions that citations are unnecessary. When a
Mozart or a Beethoven "heard" his music "in his head' before composing it, he had a benign
hallucination. We all know that a normal person, once actually given a severe fright, can
"feel" that someone is following him in the night and may suffer a delusion of jeopardy.
Fever can cause hallucinations, and many of us have experienced djh vu.
295. See notes 540-57 and related text in/ra.
296. See notes 558-65 and related text in/a.
ally is the probability that the victim's declarations hold a useful objective
truth--one that reason unhesitatingly would suggest for a basis of a mur-
der conviction? In this article's hypothetical case of a killing of a model
federal judge, the probability might be high. Most dying-declaration
cases will not vaguely resemble that hypothetical, however, and one can
imagine the other extreme of a warped person committing suicide and
spitefully blaming a deserting or unfaithful lover. 297 In virtually all dy-
ing declaration cases, the declaration will be inflammatory, 298 and the
defendant's real burden of counterproof will be practically or legally un-
bearable. 299 Unlike Maryland, the Connor jurisdiction, some jurisdictions
purport to assign to dying declarations less weight than to courtroom tes-
timony. 30 0 None, however, will exclude a dying declaration where it is
shown to have been given in apprehension of imminent death and in the
proper condition of sobriety. 30 ' This is true even where the defendant has
30 2
raised serious questions about declarant's psychology or religious zeal.
Defendant is at best limited to attacking collaterally the declaration's
weight-even if impeachment indicates that the premises of the dying dec-
laration rule cannot apply to the particular declaration. 30 3 At worst, he
cannot hope to rebut the fictional "oath" and presumed angelic trustwor-
thiness of the dying declarant. Effectively, all jurisdictions, save those few
297. For some indication that this possibility is not an excessive conception confined to
this author's imagination, see, e.g., Doyle, The Problem of Thor Bridge, in THE COMPLETE
SHERLOCK HOLMES 1054-70 (1952). See also NEW INTRO. LECTURES, note 244 lnfa, at 45-
47. If one is going to commit suicide-among the worst, "mortal" sins-why not take along
a hate object by way of a false murder charge? What's a lie compared to suicide? Could it
worsen hell appreciably? Compare Commonwealth v. Brown, note 291 supra. See also S. FREUD,
supra; and S. FREUD, THE BASIC WRITINGS OF SIGMUND FREUD at 124-25 (Brill ed. 1938).
298. I know of no dying declaration case where the dying declaration did not bear
directly and heavily on the issue of guilt. Most dying declarations are made at or near the
scene of a brutal or bloody incident by a greatly suffering declarant for whom normal people
must feel substantial sympathy. In most of the cases I have read, including those given
exposition above in this Part, the dying declaration was the only, or the strongest, evidence
on the issue(s) it was used to address--a sine qua non. Given jury instructions on the basis for
admitting into evidence a dying declaration, it is difficult to imagine a more devastating
hearsay. I know of only one case where the dying declaration could have been considered
harmless, Dowdell v. State, 194 Ga. 578, 22 S.E.2d 310 (1942).
299. Compare, e.g. notes 161-64, 205, 272-73 and related text supra wih e.g., notes 114-21,
164 and related text supra and Phi/tps, note 122 supra. See also note 288 supra and notes 306-
07 infra.
300. See note 28, supra re: cases allowing or requiring instruction or comment on apply-
ing less weight to dying declarations.
301. See e.g., cases cited in note 28 supra (including Shepard). There are other cases that
at least do not treat declarations as though made under oath.
302. Compare note 301 supra with note 10 supra.
303. See note 302 supra. See especiall, State v. Yee Gueng, 57 Or. 509, 112 P. 424 (1910).
Cf Tracy v. People 97 Ill. 101, 105-06 (1880); Reg. v. Perkins, 9 Car. & P. 395 (1840); Reg.
v. Pike, 3 Car. & P. 598 (1829). Seealso State v. Phillips, 68 N.D. 113, -,277 N.W. 609, 615
(1938).
30 4
that allow judges to comment on the dangers of dying declarations,
treat dying declarations equally with admissible, non-cross-examinable
courtroom testimony. They do so despite the condition (or lack) of other 30 5
evidence or the nature of the issue to which the declaration will speak.
They do so regardless of how illogical or incredible, yet crucial or devas-
tating, the declaration. 30 6 They do so regardless of the conduct of trial or
30 7
potential for abuse.
Defendant may demand confrontation unless the state needs otherwise!
III. CONSTITUTIONAL RATIONALITY
Primarily, this Part will consider the validity of the dying declaration
rule. Other exceptions will be treated briefly.
Dying declarations are currently excepted from the hearsay rule
predominantly because judges have presumed that a knowingly mori-
bund person's awe of meeting his Maker irresistibly impels him to be
truthful--or at least constrains him not to lie about the cause or circum-
stances of his state. The Federal Rules of Evidence may supplant this
religion-oriented presumption with one of an undifferentiated universal
awe of death that presses the dying person to be truthful.
Following the indications of Leaqy and other cases described below,
this Part will test these and related assumptions v's-e-vi' experimental,
clinical, statistical, and theoretical materials on the psychologies of death
and dying, perception and communication, and veracity and prevarica-
tion. The materials include my nationwide poll of psychiatrists-as well
as medical, psychological, sociological, and theological literature.
My survey sample was drawn from the 1973 edition of BIOGRAPHI-
CAL DIRECTORY OF THE AMERICAN PSYCHIATRIC ASSOCIATION. The
DIRECTORY posted names, addresses, and biographical abstracts of its
M.D. listings. The most current of its kind available in the 1976-78 aca-
304. See note 28 supra, and note that federal judges can comment on the weight of
evidence but that FED. R. EvID. 804(b)(2) will probably be read as contradicting such com-
ment on dying declarations-at least as a general rule. Cf e.g., 9 J. WIGMORE, EVIDENCE
§ 2551 at 507-08 (3d ed. 1940); R. FIELD & B. KAPLAN, MATERIALS FOR A BASIC COURSE
IN CIVIL PROCEDURE 98, n.b and accompanying text (3d ed. 1973).
305. Ste e.g., WiLson, note 123 supra; Commonwealth v. Brown, note 276 supra (majority
and dissenting opinions).
306. Strickland v. State, 167 Ga. 452, 145 S.E. 879 (1928); People v. Maria, 359 Il1. 231,
194 N.E. 510 (1935); Postell v. Commonwealth, 174 Ky. 272, 192 S.W.39 (1917); Connor v.
State, 225 Md. 543, 171 A.2d 699, cert. denied, 368 U.S. 906 (1961); State v. Rozelle, 225 S.W.
931 (Mo. 1920); People v. Smith, 245 A.D. 69, 281 N.Y.S. 294 (1935); Commonwealth v.
Brown, 388 Pa. 613, 131 A.2d 367 (1957).
307. Compare notes 305-06 supra with Shepard v. United States, note 27A supra. See also
Postell v. Commonwealth, Whitehead v. Commonwealth, Marshall v. State, People v. Ma-
ria, and People v. Smith, note 8 supra; State v. Yee Gueng, note 10 supra; State v. Hood, note
21 supra; State v. Beal, note 25 supra.
demic years, it had 1017 pages with 22, 570 alphabetical entries (includ-
ing an addendum). Sample selection of 750 entries followed a random
sequence specially generated by the computer at the Belknap Campus
Computer Center of the University of Louisville. Those selected unfortu-
nately included many who were likely to have retired or died by the time
the poll could be conducted. Many others were listed as performing mili-
tary service or residency and were likely to have relocated so as to become
unamenable. To preserve randomness, however, these selections were re-
tained and no amended sampling was undertaken. Since funding limits
precluded more than one mailing, subjects wholly unaccounted for after
one mailing had to be considered finally unamenable. Though my ques-
tionnaire (see Appendix) was influenced by the advice and editing of two
professor-practitioner psychiatrists of extensive experience and con-
tacts, 308 it was, nevertheless, essentially a law teacher's essay into foreign
domain. Doubtless this latter characteristic also diminished somewhat
the responses. Total returns numbered 203. Of these, 103 were returns by
the postal service-undeliverable as addressed and unforwardable. Four-
teen others involved unanswered questionnaires whose returners indicated
that the subjects were dead or retired. The responsive returns totalled
only eighty-six. Since, however, (a) the questionnaire and cover letter (see
Appendix) were constructed so as to hide completely from the subjects the
real purpose of the survey, and (b) the format, style, and content were
designed to minimize stimulation of biases and provide some degree of
internal validation, the results are not without import or value. 30 9 Since
308. Paul Adams, M.D., M.A., Professor and Vice Chairman, Department of Psychia-
try and Behavioral Science, University of Louisville; Morton Herskowitz, D.O., Clinical Pro-
fessor of Psychiatry, Philadelphia College of Osteopathic Medicine. I hasten to admit that I
alone am responsible for the survey's final content and administration.
309. On the question of the likelihood that respondents could have discerned the sur-
vey's purpose, I consulted with Dr. Jim Schuerger, Testing Center, Cleveland State Univer-
sity (psychologist and statistician) and Dr. Phil Emerson, Dept. of Psychology, Cleveland
State University (experimental psychology). Both were unable to guess the survey's purpose,
and, when it was explained, both agreed that it was highly unlikely, if not impossible, that
the respondents would have been able to guess the purpose. I should add that four survey
questionnaire recipients returned their questionnaires unanswered because they could not
determine the survey's purpose or appreciate its legal significance and hence either did not
trust the survey or feared their answers might be misused. As to the questions of bias stimu-
lation and internal validation, apart from the preceding observations, it should be noted
that questions 1(a) through 13(c) were designed and organized not only for their own im-
ports, but also to the ends of obscuring the purpose of questions 14(a) and 14(b) and check-
ing the logical consistency between 14(a)-14(b) answers and l(a)-13(c) answers. See Charts
A through D, Appendix infia. Suppose, for example, a respondent answered 'yes' to I(a)
through 3, 'no' to 4, 'yes' to 5 though 6(b), 'yes' to 8 through 1 (e), 'often' to 12, and a total
% of 95 to 13 [sum of responses to 13(a)-(c)], 'no' to 14(b), but 'yes' to 14(a). What may be
the significanse of his 14(a) answer? His answers to 1(a) through 12 would tend to indicate
that he thought: (a) neurotics and character neurotics have rigid or preprogrammed, fairly
circumscribed, internally stimulated behavior patterns, involving some sort of dissociation or
deception (in a broad sense); (b) that a neurotic's or character neurotic's religion may well
at least sixty-one subjects expressed opinions on all but five questions and
at least fifty-eight had opinions on four of the remaining five, the predic-
tive value of the total response is not unsubstantial. 310 In any event, the
results were adequate for my very limited purpose-to discover whether
there is enough empirical evidence against the presumptive bases of the
dying declaration rule to impose on its proponents the burden of demon-
strating its validity (or the risk of losing the rule).
The hearsay rule and most of its exceptions originated in judicial
conception. Ultimately, their tenability is a judicial matter. 31' The prob-
lem is that several hearsay rule exceptions, like that for dying declara-
tions, may depend on judicial notice contrary to prevailing social fact.
The presumptions underlying the dying declaration rule have never been
empirically tested. They may not be supported by more than conjecture
or surmise. Perhaps before the development of the statistical, sociological,
and psychological sciences there was some justification in necessity for
fact presumptions based on best guesses or popular beliefs. 312 For de-
cades, however, there has been no excuse. Moreover, it is arguable that
modern Supreme Court pronouncements preclude such fact surmises even
be a symptom or reflection of his psycho-pathology and therefore that such "religion" can-
not be trusted to produce or involve "moral" behavior; (c) that the physical and psychical
stress likely involved in a victim-perceived traumatic moribundity may harden, exaggerate,
or exacerbate dissociative or deceptive neurotic symptoms or traits and either displace reli-
gious restrictions or exaggerate or exacerbate the neurotic aspect of religiosity; and (d) (since
respondent thought 95% of the population neurotic or worse) that all this would be true for
most people. This would tend to imply that the traumatic moribund would, much more
likely than not, respond to inquiries about his condition in unreliable ways. The hypotheti-
cal respondent's answer to 14(b) would be consistent with this implication. Hence his re-
sponse to 14(a) would be very suspect. It could be explained, however, in terms, for
example, of his reading words like 'imminent' or 'generally' or even 'truthful' differently
from what was intended. If he read 'truthful' as meaning no more than 'not intentionally
telling a falsehood,' and if he read 'imminent' as meaning 'in the not too distant future' and
'generally' as referring to most of the content of the moribund's total declarations, the re-
spondent would have been addressing a situation not intended in the survey. The respon-
dent's answer to 14(b) would not be useless, however, since declarations respecting hate
objects would not likely fit the respondent's notion of the nature of the moribund's behavior
'generally.'
310. This view of this survey (considering my various precautionary warnings and my
purposes) was shared by Doctors Schuerger and Emerson, note 309 supra (conversations with
me at Cleveland State University in 1977). It is also relevant that standard statistical prac-
tice indicates that 'z' values of over 2.0 would not be required unless responses were below
the 60-120 range. See Appendix, Tables I(B) and II(A) infa (notes on confidence limits and
'z' values).
311. Compare, e.g., United States v. Klein, 80 U.S. (13 Wall.) 128 (1872), California v.
Green, 399 U.S. 149, 155-64 (1970) and Duton v. Evans, 400 U.S. 74, 81-82 (1970), with
Leary v. United States, 395 U.S. 6 (1969) and Barnes v. United States, 412 U.S. 837 (1973).
See generaly Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
312. I do not mean to imply that I agree with this suggestion. If there is a religion that
could justify the dying declaration rule, and if there might have been a time when there was
sufficient incidence of such religion to supply the justification, that time may have long
passed.
in the field of preliminary findings, as in cases of rulings on hearsay trust-

worthiness.
A. Due Process and Rational Empirical Basis
1. The Rule for Evidential Presumptions
In Leay v. United States, 3 13 defendant was convicted of violating a

federal anti-marihuana statute. 3 4 The statute sought punishment of any
person who "knowingly, and with intent to defraud the United States,
imports or brings into the United States marihuana contrary to law [sic]
• . . or receives, conceals, buys, sells, or in any manner facilitates the
transportation, concealment, or sale of such marihuana after being [sic]
imported or brought into the United States contrary to law."' 31 5 The stat-
ute also created a presumption that proof of possession of marihuana was
sufficient evidence of both illegal importation and knowledge of it, unless
defendant explained his possession to the jury's satisfaction. 31 6 The
Supreme Court held that the statutory presumption's irrationality denied
defendant due process of law. 3 17 Speaking for the Court, Justice Harlan
found that the knowledge which the statute made presumable was not
"more likely than not to flow from the proved fact [of possession]. ' ' 318
The due process clause required that evidential presumptions be based on
3 19
a preponderance of social fact.
Though Leag, involved a statutory presumption, it applies com-
pletely to cases involving court-made presumptions. The question is one
of due process and the sufficiency of evidence. 320 In any case, the validity
of any presumption is an empirical matter. 32 1 In Leay, the matter was
whether proportions of imported marihuana domestically marketed and
used, domestic/imported crop differences, modes of marketing and buy-
ing, or buyer education and perception made more probable than not a
knowledge among users that the marihuana they possessed had been ille-
313. 395 U.S. 6 (1969).

314. 21 U.S.C. § 176a. See 395 U.S. at 10-12.
315. 395 U.S. at 10 n.1 & 30.
316. Id
317. Id at 12, 29, 37.
318. Id. at 33-37.
319. Id at 33-36, cting, e.g., Mobile, Jackson & Kansas City R.R. v. Turnipseed, 219
U.S. 35 (1910). In view of Justice Harlan's position in Dutton (that due process limits on
hearsay should apply equally in civil and criminal cases), it is significant that his opinion of
the Court in Leaf, relies on Tumipseed, a civil case. The implication is that presumptions-
whether assuming social fact in supporting hearsay exceptions or substituting for litigative
fact vir-k-aie assumed social fact-are all to be tested under the rule of rational relation to
demonstrated, preponderant social fact. Compare notes 342-90 (especially notes 373-90) and
related text nfra.
320. Cf note 311 supra.
321. Seegenerally notes 342-71 and related text i7fra.
19791 DYING DECLARATIONS 297
3 22
gally imported.
Federal experts had estimated that 90% of all marihuana seized by
federal officials had been smuggled. 323 Generally, law enforcement offi-
cials agreed, the various, considerable domestic growths were little used
because of their weaker effects. 3 24 The testimony of customs agents in
congressional hearings did indicate, however, that high quality growths
occurred around Laredo and Brownsville in Texas.3 25 Also, a Philadel-
phia Police Academy bulletin indicated that much marihuana was grow-
ing in southeastern Pennsylvania. 326 Congressional hearings, Bureau of
Narcotics reports, and various periodicals and books indicated post-enact-
ment changes in marketing and use, such that federal seizures rose from
3,400 pounds in 1956 to 61,400 pounds in 1967.327 User types had in-
creased to include college students and younger professionals as well as
unemployed and menial workers. 328 Withal, however, between 1962 and
1967 about 79% of all marihuana seized "bore indications of foreign ori-
gin. ' ' 329 Most experts held that these "statistics" indicated most mari-
huana used here was foreign, rather than that the statistics reflected
deployments 330 or biases331 of federal officials. Though state and federal
authorities annually destroyed many acres of domestic growth, no one
knew how many were left to grow.3 32 Also, destruction had diminished
only 300% as consumption increased 2000%. 3 33 Destruction appeared
largely confined to Illinois and Minnesota where growths were predomi-
nantly "volunteer." 334 Commissioner of Narcotics Anslinger had testified
in congressional hearings that illicit cultivators would probably choose
sparsely populated states with warmer climates. 335 Bureau of Narcotics
testimony and reports indicated that "far-reaching" investigations en-
countered many large-scale foreign-product-distribution systems and no
domestic product ones. 33 6 This evidence appeared to imply that most
322. 395 U.S. at 39-52.

323, Id at 39-40.
324. Id. at 39.
325. Id at 40, 49, 52.
326. Id at 40.
327. Id.
328. Id. at 40-41.
329. Id at 41.
330. Id at 41-42.
331. Id Deployment choices and opinions that specimens seized bore foreign-origin
indications could reflect biases regarding smuggling or interest in increasing the statute's
ambit.
332. Id. at 42.
333. Id.
334. Id at 43.
335. Id.
336. Id
domestic consumption was of foreign produce. 337 Nonetheless, the Court

found it "impossible ' 338 to infer that a majority of possessors "have
learned of the foreign origin of their marihuana. ' ' 339 Such an inference
from the sole premise that most marihuana is imported "would be no
more than speculation. ' 340 Thus, it would violate the due process re-
34 1
quirement of rationality that Tot had established.
Tot v. Un'ed States3 42 involved a statutory presumption that allowed
a jury to infer from a defendant's having possessed a firearm that he had
received it in interstate commerce. Though recognizing that a possessor
might know better than another the source of his firearm, the Court held
that the prosecution was required to show an actual and rational connec-
tion between the fact proved and the fact presumed. 343 Convenience
must bow to empiricism and logic. Accordingly, in Leag the validity of
the presumption of knowledge depended on whether in fact a majority of
marihuana possessors either learned of a high rate of importation or knew
that their particular marihuana was foreign. 344 The Court could "imag-
ine" five bases for imputing to a possessor one or the other of these under-
3 45
standings:
(1)he might be aware of the proportion of domestically consumed mari-
huana. . . smuggled from abroad and deduce that his was illegally im-
ported; (2) he might have smuggled the marihuana himself; (3) he might
have learned by indirect means that the marihuana consumed in his
locality or furnished by his supplier was smuggled from abroad; (4) he
might have specified foreign marihuana when making his "buy," or
might have been told the source . . .by his supplier; (5) he might be
able to tell the source from the appearance, packaging, or taste of the
marihuana itself.
In considering these possibilities, the Court deemed important two fac-
tors: (a) the best evidence-the testimony of marihuana smokers regard-
3 46
ing their beliefs on the origins of their marihuana-was not available;
and (b) most marihuana smokers were irregular or "occasional" users un-
likely to be informed or selective about their purchases and hence not as
likely as regular users to have learned about its source in any of the
34 7
"imagined" ways.
337. Id at 42. See also id at 41-43.

338. Id at 52.
339. Id at 46, 52-53.
340. Id at 53.
341. Id.at 32-36, 52-53, also citing United States v. Gainey, 382 U.S. 63 (1965) and
United States v. Romano, 382 U.S. 136 (1965).
342. 319 U.S. 463 (1943).
343. See 385 U.S. at 33-35, 44-45.
344. Id at 37-38, 45-47.
345. Id at 47.
346. Id.
347. Id at 47-48.
19791 DYING DECLARATIONS
As to the first possibility there was little evidence. The Court con-
cluded that it was likely that the "great majority either have no knowl-
edge about the proportion . . . imported or believe that the proportion is
considerably lower than may actually be the case."'3 48 As to the second
possibility there was again little evidence. Existing evidence indicated
that "a considerable number" of users smuggle their own marihuana but
most get theirs from local suppliers.3 49 The slight evidence respecting
whether smokers may learn of their marihuana's source by "indirect
means" indicated that a purchase usually involves a series of middle-men
and that the distribution system is secret. This implied that few consum-
ers learn their marihuana's source through "indirect means."' 350 The leg-
islative record contained testimony that Mexican produce is preferred to
domestic. 351 The record also, however, contained testimony by customs
agents that Texas produce is as good as Mexican. 352 Nothing indicated
that buyers commonly stipulate for Mexican crops; indications were that
sellers only occasionally volunteer their sources. 353 Moreover, buyers evi-
dently very infrequently inquire as to sources, for fear of being thought
informers. 354 On this evidence the Court felt "simply . . .unable to esti-
mate . . .what proportion of. . .possessors have learned the origin of
their marihuana in this way."' 355 (Even if a buyer stipulated for Mexican
produce or a seller suggested his source, it would not follow that the seller
would comply with the stipulation or truthfully disclose his source. How
could the buyer check? Would he be inclined to try? Ought he to trust
the representations of a merchant of illicit goods? The issue was, after all,
knowledge, not belief). As to knowledge derived from appearance, packag-
ing, or taste, there were several problems. "Rough" produce was more
likely to come from Mexico than from California; but the distinction was
not evidenced as to other domestic produce, and nothing indicated that
users were likely to know the meaning of the distinction. 356 Mexican pro-
duce was usually pressed into distinctive bricks and wrapped in character-
istically Mexican paper. Yet it did not follow that the product often
reached the buyer in such form, because few buyers buy such large bricks
3 57
and wholesalers usually repackage smaller amounts for later retailing.
Since Texas produce was evidently about as strong as Mexican, the Court
348. Id at 48.
349. Id
350. Id at 49.
351. Id
352. Id. See also id.at 40, 52.
353. Id at 49-50.
354. Id. at 50.
355. Id (emphasis added).
356. Id
357. Id at 51.
could not infer that smokers could identify Mexican produce by taste.3 5
Customers' pre-buy sampling was insignificant because cigarette-to-ciga-
rette intoxication reportedly differed little and such sampling was mere
ritual. 359 There was no way to estimate what proportion of buyers were
capable of "placing" marihuana by taste, "much less what proportion ac-
'36 °
tually have done so."
The Leay Court's analysis implies several logico-empirical or proce-
dural limitations on the availability of evidential presumptions. First,
where a proved fact does not, apriori,necessarily imply the presumed fact,
the implication cannot be assumed, but must be proved affirmatively by
preponderating, reliable, empirical evidence. This follows from the Court's
refusal to assume that most possessors must know of the apparent market
dominance of imported marihuana. It also follows, inter alia, from the
Court's refusal to assume ois-h-ois a scintilla of supportive testimony that
buyer-smokers were capable of distinguishing marihuana by taste or were
inclined to try to do so, and from the Court's refusal, v'is-h-vis a few asser-
tions, to assume that a majority of buyer-smokers stipulate for foreign pro-
duce or that their sellers represent their wares as Mexican. Second, the
burden of establishing the logico-empirical foundation of the presumption
rests affirmatively upon the government. This follows from the Court's
refusal to require rebuttal or counterproof from the defendant where
there was substantial proof of a high rate of importation and some testi-
monial evidence that some buyers knew or could know of the high rate. It
also follows, inter aia, from the Court's refusal to give defendant the bur-
den of going forward or risk of non-persuasion respecting extent of knowl-
edge of importation--despite relevant testimonial evidence that some
smokers smuggled their own produce and others had such access to the
chain of distribution as to be in a position to know whether the first link
was abroad. Third, the government's affirmative burden cannot be dis-
charged by offerings of dated data or current estimates of reality, but only
by hard evidence of current practice and experience. This follows from
the Court's emphasizing that the testimony of marihuana smokers-"the
best evidence"-was not available, and that most smokers were occasional
users not likely to be informed or selective about their purchases. It also
follows from the Court's concern that the class of smokers had changed
since enactment of the marihuana law. It further follows from the Court's
refusal to dispose of the case upon the hypotheses of Congress, the govern-
ment, or enforcement officers. Last, doubts as to the weight or implica-
tions of government evidence will be resolved for the defendant. This
follows from the Court's refusal to impute to buyer-smokers an inclination
358. Id at 51-52.
359. Id at 52.
360. Id
or ability to demand or certainly to obtain Mexican produce vis-h-vis (a)

substantial testimonial evidence that smokers usually prefer Mexican pro-
duce and (b) substantial testimonial and statistical evidence that most
domestically seized marihuana is Mexican. This also follows from the
Court's suggestion that the sizeable production of and market for the
Mexican-like Texas marihuana was sufficient to preclude inferring (a) that
any given buyer-smoker would not have asked or settled for Texas pro-
duce, or (b) that it was more probable than not that a particular seller in
a particular transaction would deliver promised Mexican produce or rep-
resent that his delivery was Mexican rather than Texan. The Court's
duty of deference to congressional determinations was not sufficient basis
for disregarding the evidential and logical deficiencies in the Leary pre-
sumption's foundations. Congress, like the Court, "is subject to constitu-
tional requirements, and in this instance the legislative record [fell] even
shorter of furnishing an adequate foundation for the 'knowledge' pre-
sumption than [did] the more extensive materials [the Court] ex-
36
amined." 1
In Barnes v. Un'edStates,362 the Court reaffirmed Leary, reading it as

synthesizing Tot and United States v. Romano 36 3 in the rule that a presump-
tion or "inference" is " 'irrational' or 'arbitrary,' and hence unconstitu-
tional, unless it can at least be said with substantial assurance that the
presumed fact is more hkely than not to flow from the proved fact on which
it is made to depend. '364 Like the Leagy Court, the Barnes Court would
not validate a presumption upon traditional deferences. The Barnes pre-
sumption was a centuries-old, "traditional common law inference deeply
rooted in our law. ' 365 "Early American cases consistently upheld .. .
such presumptions .... -366 Like the congressional determination in
Leag, however, the ancient determination of the common law and its
36 7
descendants could not displace the demands of logic and fact:
This impressive historical basis . . .is not in itself sufficient to establish
the [presumption's] constitutionality. Common law inferences, like their
statutory counterparts, must satisfy due process standards in light of pres-
ent day experience.
Leaqy was a unanimous decision. The dissenters in Barnes did not
disagree with Leagy or with the Barnes majority's reading of Leagy or the
"present day experience" requirement. The four Leafy-Barnes limitations
on the availability of pro-government criminal-law evidential presump-
361. Id at 53.
362. 412 U.S. 837 (1973).
364. 412 U.S. at 842 (emphasis added).
365. Id.at 843.
366. Id at 844.
367. Id at 844-45. Compare Leaty, 395 U.S. at 38 and n.68.
tions, therefore, are likely to remain firm for some time. In sum these
limitations are:
(a) The government must propose and affirmatively support any pre-
sumption it would claim.3 68 (b) To discharge its burden of foundation
proof, the government must provide at least substantial assurance that
the presumed fact more probably than not follows from the proved,
predicate fact (on which the presumed fact is sought to depend). 369 (c)
The presumed fact cannot be deemed to follow from its predicate fact
unless the government's substantial assurance rests on prevailing, actual,
present-day experience or empirical data, neither speculative legislative
determinations nor traditional judicial doctrines being substitutable for
current empirical or experiental proof.370 (d) The defendant will have
the benefit of any
37 1
doubt respecting the implications or force of the gov-
ernment's data.
Uncertainty remains as to two questions: (1) whether a permissible
(valid) presumption (inference) is insufficient proof unless it can convince
a jury beyond reasonable doubt 372 and (2) whether or how far the Leay-
Barnes rule is applicable to civil cases. 3 73 These questions bear little on
368. See text accompanying note 364 supra, especially the term "unless" and its place-
ment.
369. Leay, 395 U.S. at 36, 45-47; Barnes, 412 U.S. at 842-43. See also text preceding note
361 supra.
370. Leafy, 395 U.S. at 38, 52-53; Barnes, 412 U.S. at 842-43, 843-45. See also text pre-
ceding note 361 supra.
371. Leary, 395 U.S. at 46-47; 49-50. See text preceding note 361 supra; Barnes, note 370
supra.
372. See Barnes, 412 U.S. at 842-46. But see Mullaney v. Wilbur, 421 U.S. 684 (1975);
Patterson v. New York, 432 U.S. 197 (1977). Cf In re Winship, 397 U.S. 358 (1970); Estelle
v. Williams, 425 U.S. 501 (1976); Taylor v. Kentucky, 436 U.S. 478 (1978).
373. But see note 317 supra; Leary, 319 U.S. at 33, n.58. Since Turntpseed, note 319 supra,
was a civil case and the basis for Tot (Leary's basis), it appears that Lear, applies in civil cases.
This inference finds support in the logic of Mullaney, note 652 supra. Where a fact issue
embraces an element of a criminal cause, to require defendant to bear the burden on the
issue (even by a preponderance of evidence) would be to belie the presumption of innocence
and remove from the prosecution its burden of persuasion. The presumption of innocence is
the mirror of the burden of persuasion by proof beyond reasonable doubt. Compare Mullane,
Estelle, and Taylor, note 372 supra. See also Patterson v. New York, note 372 supra. Parallelly, the
civil plaintiff's burden of persuasion by a preponderance of evidence as to the elements of his
cause implies a presumption of the nonliability of the defendant. Compare Turmpseed (statute
may make showing of derailment prima facie proof of railroad negligence) with Western &
Atd. R. Co. v. Henderson, 279 U.S. 639 (1929) (statute wrong to make defendant railroad
disprove fault when plaintiff shows grade-crossing collision). If an element of plaintiff's
cause were presumed without basis in preponderant empirical fact, the plaintiff's burden
would be less than proof by preponderance; and either the burden of persuasion would have
shifted to defendant (irrationally, since the cause is plaintiff's) or the jury would be permit-
ted to render a verdict for plaintiff on less than preponderant evidence (also irrational). In
Leag the government lost because it could not muster even preponderant empirical evi-
dence and thus could not bear its burden of persuasion beyond reasonable doubt. See
Barnes, 412 U.S. at 842-43. In misanalysing Henderson and Turnipseed, the Advisory Commit-
tee's Note to superseded Rule 301 of the Proposed Federal Rules of Evidence thoroughly
misreasons this matter. Not able to appreciate that the chances of non-railroad-fault or
victim-caused grade-crossing collision is doubtlessly high, mysteriously the Note asserts that
there would be "no question of logic" if, as to grade-crossing cases where a collision has been
1979) DYING DECLARATIONS
the immediate problem: whether the Leary-Barnes rule applies only to

presumptions of basis or ultimate fact, or whether it may also apply to a
presumption respecting an admissibility-determining preliminary fact.
2. Applicability of the Leary-Barnes Rule to Presumptions

Respecting Admissibility-Determining Questions of
Preliminary Fact
An evidential presumption, as in Leay, directly affects the fact-
finder's determination of ultimate fact by limiting or supplying all or part
of it. Either the fact-finder will be spared the duty of finding the fact
375
presumed (civil cases only) 3 74 or he will be permitted (civil or criminal)
376
or required (civil only) to adopt the presumption in lieu of actual
proofs.
A presumption respecting a prelimina, fact question prncipally affects
the availability to the fact-finder of evidence from which he may draw his
own, unprescribed inferences or on which he may turn evidential presump-
tions. A preliminary fact presumption is used by judges in ruling on offers
proved, instead of mandating a presumption of railroad negligence that shifted the burden
of persuasion to defendant railroads, "the statute had simply said: a prima facie case of
liability is made by proof of injury by a train; lack of negligence is an affirmative defense."
FED. R. EvID. at 184, Advisory Committee's Note (West Pub. Compilation 1975). But how
can lack of negligence be a defense if negligence is not the basis of liability? Can such an
allocation of the burden of persuasion be rational vis-a-vis the substantive law and pleadings
that the allocation seems to contradict? If it is not rational how can it not deny due process?
Set Leaq, at 37 (text accompanying Court's n.65). Indeed, at least as to criminal causes, the
Advisory Committee seems to have seen that such a statute would threaten undue burdens
on primary conduct by not reflecting empirical probability. The Committee suggested that
the fiction that one is presumed to know the law is too tenuous uis-4-vis the technicalities of
criminal pleadings, evidence, and procedure. And the Committee seems to have had an
inkling that under such a statute people would not be able to plan their affairs rationally
and that therefore the statute would unduly interfere with personal liberty: "[I]t is reason-
able to suppose that [an accused] should have known that his presence at the site of an illicit
still could convict him of being connected with . . . the business . . . but not that [an ac-
cused] should have known that his presence at a still could convict him of possessing it
. Advisory
.. Committee's Note, supra, at 185. But why is this true of criminal accuseds
but not of civil defendants? Surely not because of a difference in stakes? A still-possession
conviction could carry consequences far less grave than a three million dollar recovery
against a floundering railroad. Besides, irrationality is improper irrespective of quantitative
differences in relevant risks. Cf Comment, 17 J. FAMILY LAW 457 (1979). Thus the Turnipseed-
Henderson rule is reaffirmed in Lear,. It is fascinating to ponder why the Advisory Commit-
tee's Note did not discuss or cite Leag'or notice Tot's reliance on Turnipseed and Henderson
(see 319 U.S. at 468 n.9).
374. Eg., Foundation Co. v. Henderson, 264 F. 483 (5th Cir. 1920); Ryan v. Metropoli-
tan Life Ins. Co., 206 Minn. 562, 289 N.W. 557 (1939); Grieger v. Vega, 153 Tex. 486, 271
S.W.2d 85 (1954). See Sanderlin v. Martin, 373 F.2d 447 (4th Cir. 1967) (Haynsworth, C.J.,
dissenting).
375. E.g., United States v. Gainey, 380 U.S. 63 (1965); Yellow Cab Co. v. York, 58
Tenn. App. 177, 427 S.W.2d 854 (1968). See White v. Hines, 182 N.C. 275, 109 S.E. 31
(1921).
376. E.g., Charleston Nat'l Bank v. Hennessey, 404 F.2d 539 (5th Cir. 1968).
of proof and objections to evidence. Occasionally such a presumption, or

the evidence supporting it, may serve an evidential function for the fact-
finder, so that it, or its basis, may be both a determinant of admissibility of
probative evidence and an independent admissible proof.37 7 Its problem-
atic character here, however, is its function in narrowing or expanding the
gamut of proofs (particularly certain hearsay) available to the finder of
ultimate facts.
Irrational evidential presumptions have been precluded from supply-
ing elements of criminal charges because otherwise the "legislature might
validly command that the finding of an indictment, or mere proof of the
identity of the accused, should create a presumption of the existence of all
the facts essential to guilt. ' 378 The issue, in other words, is sufficiency. It
is "not permissible . . . to shift the burden [to the defense] by arbitrarily
making one fact, which has no relevance to guilt of the offense [e.g., mere
legal possession], the occasion of casting on the defendant the obligation
of exculpation. ' 379 Presumptions as to preliminary matters of admissibil-
ity neither bear immediately on guilt or sufficiency nor techntzcall shift a
burden of proof to the defense. Practically, however, the difference is illu-
sory. Both presumptions arbitrarily ease the prosecution's burden and di-
minish the chance of effective defense. Both may give the prosecution
material "proof" that reason and reality would preclude. Moreover, it is
difficult to understand why any irrati'onalprocess should ever be permitted
to harm a defendant, especially where avoiding the harm would not ma-
terially inconvenience the government.
In most dying declaration cases, the declaration is critical to convic-
tion. Thus, without the competence-supplying presumption of the dying
declarant's peculiar trustworthiness, the prosecution might often have
failed to discharge the burden of persuasion, or at least lost the verdict. It
is mysterious why such a preliminary fact presumption is not as much a
sufficiency determinant as the ultimate fact presumptions of Leaq and
Tot. The mere accusation of the dying declarant, like the mere indict-
ment or identity proof of Tot's analysis, can create an inference of the
accused's guilt. Especially in states where dying declarations are treated
as though made under oath, their admission effectively shifts the ultimate
burden of proof (or disproof) to the defense. Treating the declaration as
testimony given under oath means presuming it to be true, and this will
often mean that acquittal will turn on whether defendant can prove the
declaration false. Could a reasonable jury disregard the dying declarant's
377. Compare FED. R. EVID., 104(c) and Advisory Committee's Note thereto (West Pub.
1975) with Sricbland, supra notes 124, 197-200 and related text.
378. Tot, 319 U.S. at 469, cittg McFarland v. American Sugar Ref Co., 241 U.S. 79, 86
(1915).
379. Id
unimpeached, presumptively true accusation of defendant's guilt? Even

if such a declaration is not treated as testimony under oath, its admission
into evidence on the ground of its presumptive trustworthiness must ac-
38 °
cord it virtually the same weight as would an oath. If a jury knows
that a declarant about to meet his Maker is to be presumed trustworthy
as others are not, the jury must turn its attention to whether the defense
can repudiate the declaration, rather than focus, as iit ought, on whether
the declaration proves the prosecution's case.
A Leaqy-type evidential presumption is effectively evidence, if admis-
sible, and a verdict may turn around it just as around real evidence. Giv-
ing defendant the obligation to disprove the presumption would be giving
the presumption an unconstitutional assumption of reliability. If a dying
declaration is admitted into evidence, the verdict may turn around it just
as around actual testimony. If it is the burden of the defendant to dis-
credit a dying declaration, the declaration is given the benefit of an as-
sumption of reliability hard to describe as constitutional. Leaqy precludes
assuming (surmising) a presumption's validity, accuracy, or reliability. A
presumption's validity, accuracy, or reliability for a given case must be
proved affirmazvel'y. Otherwise, the presumption itself would be surmise,
not a logical inference. A presumption is valuable, if at all, because of the
reliable materiality of its content. Presumptive knowledge of illegal im-
portation is valuable only where it may reliably imply a person's con-
sciousness of the illegality of his conduct. A dying declaration is valuable
only if its content reliably implies defendant's involvement in or with in-
tentionally homicidal conduct apparently leading to the death of declar-
ant. The declaration can rationally identify defendant to material
conduct only if it is valid, accurate, and reliable. Under Leafy, a jury
(fact-finder) may not consider the content or implications of an evidential
presumption if the assumptions on which the presumption's weight and
credibility depend are not borne out in currently prevailing empirical
fact. Logic requires the same treatment of a dying declaration's content
and implications vis-d-vis the assumptions underlying the presumed relia-
bility on which its credibility and weight depend. True, credibility is for
juries, not judges determining admissibility. 38 1 Yet a jury may not weigh
380. As in, e.g., Srwland See note 377 supra.

381. 1J. WIGMORE, EviDENCE§§ 11, 12, 26,29 (3d ed. 1940). Seee.g., Wilson, note404
supra; Nesbit v. State, 43 Ga. 238 (1871); Gambrell v. State, 92 Miss. 728, 46 So. 138 (1908).
Cf e.g., United States v. Riccardi, 174 F.2d 883 (3d Cir. 1949), cerl. denied 337 U.S. 941
(1949); State v. Perkins, 130 W. Va. 708, 45 S.E.2d 17 (1947). See also FED. R. EVID. 104(e),
607, 1008. Similarly, though a judge may be able to comment on the weight of evidence, he
may not direct credibility findings; and if he interferes with the jury's monopoly over the
issue of credibility, he must be reversed on appeal. 9J. WIGMORE, EVIDENCE § 2551 (3d ed.
1940). Also similarly, though a judge may be able to set aside a verdict as being against the
weight of the evidence, he must order a new jury trial; he cannot determine the weight of the
evidence where a jury trial is rightfully demanded. J. JAMES & G. HAZARD, CIVIL PROCE-
the credibility of evidence, whose properly challenged competence, relia-

bility, validity, or relevance has not been shown to the court. Constitu-
tionally, this follows from Tot. 38 2 Subconstitutionally, in the hearsay field
generally, a jury is not allowed to weigh the credibility of a declaration
unless thejudge rationally determines it to be trustworthy. 383 "Trustwor-
thiness" is a sort of preliminary "credibility" finding, a safety-valve
threshhold to the jury. Similarly, expert testimony is not admissible un-
less the witness's method and expertise are "generally accepted" or shown
to be valid and reliable. 384 Experimental or statistical evidence is not
admissible unless the court appropriately finds that the theories and
methods involved are valid and reliable. 385 The.red thread here is that
validity and reliability must appear at all levels of the fact-finding process
lest there cannot be formed a sufficient, rational belief. That is due proc-
ess.
Even if preliminary presumptions do not directoy affect sufficiency,
their validity ought at least to depend on their having bases in fact. The
due process clauses appear to require of all purportedly factual govern-
mental determinations that they be rationally related to actual, current
fact. 38 6 Respecting judicial procedure generally, it seems indisputable
that due process minimally implies logical or reasonable action. There-
fore, though Rules like 104(a) and 1101(d)(l) of the Federal Rules of Evi-
dence relieve preliminary findings from the non-privilege constraints of
DURE 302 (2d ed. 1977); R. FIELD & B. KAPLAN, MATERIALS FOR A BASIC COURSE IN CIVIL
PROCEDURE 101, 539 (1973).
382. Compare Gamey, note 375 supra.
383. WIGMORE, supra note 3, §§ 1360-65. See FED. R. EVID. 803(24) & 804(6).
384. Compare C. MCCORMICK, EVIDENCE § 13 (1972) with WIGMORE, supra note 3,
§ 203.
385. See Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F. Supp. 670 (S.D.N.Y. 1963);
Recommended Procedures for Trial of Protracted Cases 25 F.R.D. 351, 425-30 (1960). Cf
People v. Collins, 68 Cal. 2d 319, 66 Cal. Rptr. 497, 438 P.2d 33 (1968).
386. Compare Leafy, Tot, and Barnes, notes 313, 342, and 362, respectively, supra with Estep
v. United States, 327 U.S. 114 (1946). Though the Estep plurality ostensibly ruled on statu-
tory construction, two concurrers said the ruling was constitutionally mandated, and the
plurality analysis involved the "observation" that Congress could not have intended to im-
pose criminal liability for disobedience of administrative orders that had no bases in fact.
"No-basis-in-fact" implies "irrational," which implies denial of due process. The Estep plu-
rality put its statutory holding on grounds of want of administrative jurisdiction. But cf
Goldberg v. Kelly, 397 U.S. 254 (1970); Breen v. Selective Serv. Bd. No. 16, 396 U.S. 460
(1970); Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969); Oestereich v. Selective Serv. Bd.
No. 11, 393 U.S. 233 (1968); Dombrowski v. Pfister, 380 U.S. 479 (1965); Ex Parte Young,
209 U.S. 123 (1908). Phitosophical4', these cases tend to reflect at least due process pressure
toward limiting all government power to interfere with personal liberty without a judicial
determination that fact justifies the interference. See also, e.g., Fuentes v. Shevin, 407 U.S. 67
(1972); Yakus v. United States, 321 U.S. 414 (1944) (judicial review, somewhere, somehow);
Crowell v. Benson, 285 U.S. 22, 87 n.23 (1931) (dissent); Exparte Yerger, 75 U.S. (8 Wall.)
85 (1869). Moreover, the due process clauses require the mode of the judicial test to be
rational. Tot, supra, at 843-45; Mullany, note 372 supra. Cf United States v. Klein, 80 U.S.
(13 Wall.) 128 (1872).
the rules of evidence, and though judicial notice allows courts considerable
leeway absent hard proofs, preliminary findings ought to be governed by
a requirement of reasonable sufficiency in demonstrable fact. If the pre-
sumption-based admission of a dying declaration cannot be said to shift
the burden of proof to the defendant, it can yet be said to shift signifi-
cantly to the prosecution's side the balance of convenience. It will impose
on defendant the practical necessity of discrediting the declarant or his
declaration. In Tot, the Court suggested that a presumption of similar
effect 38 7 might be justified on the "convenience" ground of defendant's
better access to the evidence ony if the presumed fact empirically followed
more than not from the proven predicate facts. 388 Not only has a ra-
tional, empirical connection between predicate and presumed fact never
been shown in any dying declaration case, but it is the nature of a dying
declaration case either that defendant has no better access than the prose-
cution to the truth as to the credibility of the declarant or that there are
virtually no available means to test declarant's credibility. 38 9 Thus even
if, as the government argued in Tot, 3 9 0 irrespective of logical empiricism,
the convenience of greater access to the evidence were enough alone to
justify a prosecution-favoring presumption, the dying declaration rule's
387. 319 U.S. at 469.

388. Id at 469-70.
389. Compare id. at 470. See also id. at 473 (concurrence). Obviously if defendant has
actually done what declarant has asserted, defendant would have the better access. But the
presumption of innocence precludes assuming that defendant has done what is declared
against him. See note 372 supra. Yet this is the problem with the dying declaration rule's
"necessity" theory-that defendant ought not be able to get away with his crime simply by
killing his victim and only witness. This theory assumes guilt upon an unproven presump-
tion of the trustworthiness of the declarant and the reliability of his declaration. In Tot,
however, the Supreme Court supplied this contraindication:
Even if the presumption in question were . . . reasonable we think that the nature
of the offense and the elements . . . render it impossible to sustain the statute, for
the reason that one element of the offense is prior conviction of a crime of violence.
If the presumption warrants conviction unless the defendant comes forward with
. . . explanation and if, as necessarily true, such evidence must be credited by the
jury if the presumption is to be rebutted, the defendant is under the handicap, if he
takes the . . . stand, of admitting prior convictions of violent crimes. His evidence
as to acquisition of the firearm . . . is thus discredited in the eyes of the jury before
it is given.
319 U.S. at 470. If a homicide defendant has tnhbully pleaded self-defense and testifies to
discredit decedent dying declarant, he must admit much of the act(s) charged against him.
Since he cannot put declarant to examination, he is at a disadvantage like that described by
the Tot Court-a Hobson's choice. Similarly, if he tries to discredit declarant in support of a
denial, he may have to disclose aspects of an association with declarant that can be turned
against him-unfairly in the absence of opportunity to support his version through exami-
nation of declarant. Superimposed on this is the jury's natural sympathy for the pathetic
declarant and, often, the jury's knowledge of the presumption of declarant's trustworthiness.
In Wilson, note 123 supra, defendant might have had to have admitted that he was a pimp to
prove declarant also was a pimp--a self-defeating impeachment absent opportunity to ex-
amine declarant about it. Compare 319 U.S. at 470 with id at 473 (concurrence).
390. Id at 469.
presumptions would be difficult to justify. In any event, however, some

rule of logical empiricism-ve , probably the Leaf , 'rational connection'
test-appears to govern here. For the rest of this Part, application of the
Leay test will be assumed.
B. The Logico-Empirical Validity of Dying Declaration Rule

Presumptions
The dying declaration rule's presumption of trustworthiness assumes

that by reason of religion or general psychology people who believe they
are moribund are more likely than not to be accurate and truthful about
the cause(s) or circumstance(s) of their conditions. The content, history,
and theories of these premises have been described above. 39 ' Below they
will be tested against empirical and experimental evidence and expert
opinion.
1. Psychological Contraindications
The psychologies of life, death, and dying are intimately related.

Normal and abnormal psychologies appear to overlap or intermesh.
There are strong indications that a majority of Americans will suffer
some type of recurring of chronic psychic illness during some period in
their lives. My nation-wide poll of psychiatrists suggests the following
probabilities: The average psychiatrist probably thinks that between 5%
and 8% of Americans are in some sense psychotic. 3 92 Between 32% and
46% are probably thought by the average psychiatrist to be character
neurotic. 393 The average psychiatrist probably considers between 18%
and 26% pure neurotic. 394 Using the three more conservative of these
estimates, and assumzng psycht'atrtc opinion to be suffci'enl, one could expect
that about 55% of Americans suffer some chronic or recurring psychic
disturbance. The three higher limits suggest that about 80% of Americans
391. See Part I (INTRODUCTION) supra.

392. See Appendix, Survey question 13(a) and Table III infra. As Table III shows, the
range expressed in the text accompanying this note is the confidence limit ('C') of the arith-
metical mean of all responses ('N'). As with response sets treated in Table I(B), the C's for
those treated in Table III were derived through the formula, C = (X ± 2,-), a 2.0 'z' value
being used because N for all sets was between 60 and 120. Dr. Emerson, note 309 supra,
agreed with the author that this approach would yield a respectable analysis. See also note to
Table I(B).
393. See Appendix, Survey question 13(b) and Table III infra. See also note 392 supra, re
method. Perhaps the reader will deem significant that while one respondent thought 98%
were character neurotic and three thought 90% were, only two thought as little as 2-3%
were, and the mode (ten respondents, nearly 1/6 N) thought 30% were so afflicted. The
median was nearly 40% (39.106).
394. See Appendix, Survey question 13(c) and Table III i)fra. See also note 392 supra, re
method.
suffer chronic psychic disorder. The psychic conditions of such Americans

bear negatively on their trustworthiness.
The psychologies of normal people may be only quantitatively differ-
ent from those of psychotics, neurotics, and others suffering abnormal psy-
chopathologies. 395 Irrespective of psychic health, perception and memory
are always subject to the influence of psychic disturbance or environmen-
396
tal pressures.
Relevant symptoms of all normal and abnormal psychologies may
merge in traumatic moribundity. Whether normal or abnormal, a person
who has suffered a trauma soon to be fatal will feel an intense rush of
anger and disbelief that may either reverse or disclose the pathogenesis of
long-held attitudes and beliefs. 39 7 Conversely, an apparently normal per-
son, harboring deep psychic disturbances, 398 may, like a person patently
disturbed, reverse his behavior and act so as to cause his untimely de-
mise. 3 9 9 Can a person who so ends his life be expected otherwise to con-
form to normal behavior patterns?
The traumatically moribund person's psychology may be necessarily
abnormal. It is not unlikely, however, that in dying as in living the chron-
ically abnormal person's psychology and behavior may differ appreciably
from that of the previously normal individual. Initially, then, the
thanatological implications of normal and abnormal psychologies will be
developed separately. Eventually, overlaps will be considered.
(a) Implications of various psycho-pathological syndromes
Here will be considered the extent to which various psycho-patholog-

ical or abnormal syndromes might affect or reflect themselves in distorted
or false perceptions or communications respecting matters like blame or
liability. As is traditional, psychoses will be treated separately from neu-
roses. Respecting all, however, the relation of physiological and environ-
mental shock will be considered.
(1) Psychoses
Most psychoses are describable as schizophrenic or manic-depres-
395. See notes 396, 439-53 (especially 439-42, 446), & notes 492, 495, 536-37 and related
text infia.
396. See generaly Part III B 1(b) infra.
397. Compare notes 405, 409, 412, 415, 477-565 and related text tinfa with Appendix,
Survey questions 11 (d)-(e) and 12 and Tables II(A)-II(B) infia and note 262 and related text
supra. See also Appendix, Survey questions 5-6(b), 8-11(c) and Tables I(A)-II(A) ftra.
398. See notes 405-07, 412-13, 415, 495-518, 530-34 and related text Mtfta.
399. Compare note 398 with R. KASTENBACH & R. AISENBERG, THE PSYCHOLOGY OF
DEATH 252-361 (1972) and A. WEISMAN, THE REALIZATION OF DEATH 97-108 (1974). See
also NEw INTRO. LECTURES, note 244 supra, at 45-47.
sive. 4 0 0 Schizophrenic and (arguably) manic-depressive psychoses are

"functional," i.e., have non-organic pathogeneses. 40 1 Beyond the schizo-
phrenic (and paranoid) and manic-depressive 0 (melancholic), many psy-
4 2
chosis forms have been recognized or posited.
Most functional psychoses are characterized by "extensive disorgani-
zation of the personality" involving disruption of "all the forms of adapta-
tion (e.g., social, intellectual, professional, religious)." ' 40 3 Typical
syndromes include "severely impaired reality testing, . . . severe regres-
sion [to early childhood wishes or psycho-sexual stages], distortions of per-
ception, hallucinations, delusions, and lessened control over instinctual
wishes.' '4 0 4 Aside from schizophrenic or manic-depressive psychoses,
400. STEDMAN'S MEDICAL DICTIONARY 1166 (4th Unabridged lawyers' ed. 1976) [here-
inafter STEDMAN'S]; PSYCH. DICT., note 241 supra, at 446-47. See ENCYCLOPEDIA OF PSY-
CHOANALYSIS 351-52 (Eidelberg ed. 1968) [hereinafter ENCYC.], where it is noted that Freud
in Freud,Psychoanalyttc Noles on an AutobtographicalAccount ofa Case of Paranoia, 12 STANDARD
EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 318 (1958)
"lumped together" schizophrenia and paranoia under "paraphrenia," and where it is noted
that schizophrenia, paranoia, and melancholia (manic-depressive psychosis) have been con-
sidered the prevailing types of psychoses; S. FREUD, GENERAL INTRODUCTION TO PSYCHO-
ANALYSIS 367 (Riviere, rev. ed. 1963) [hereinafter S. FREUD, INTRO.], where Freud again
suggests that paranoia and dementiapraecox be considered a single category, paraphrenia; i.
at 370, where melancholia (manic-depressive) psychosis is distinguished from paranoia;
FINE, note 245 supra, at 249, where, citing Szasz, Psychiat y, Psychology and Psychotherapy, in I
AMA ARCHIVES OF GENERAL PSYCHIATRY 455-63 (1959), Fine notes critically Kraeplin's
classification of psychoses into the two categories dementia praecox (including schizophrenia
and paranoia) and manic-depressive psychoses. As to definition of paranoia, see SHAPIRO,
note 241 supra, at 54-55. See also notes 440 and 446 infa.
401. ENCYC., note 400 supra, at 351-52; PSYCH. DICT., note 241 supra, at 446-47 (re:
"organic") and 448 (re: cross-reference to "functional"). Currently, psychiatry (not psycho-
analysis) tends to consider manic-depression as organic (genetic). E.g., J. PINCUS & G.
TUCKER, BEHAVIORAL NEUROLOGY 224 (2d ed. 1978).
402. PSYCH. DICT., note 241 supra, at 446-49.
403. PSYCH. DICT., note 241 supra, at 446-47.
404. ENCYC., note 400 supra, at 351. Compare S. FREUD, NEW INTRODUCTORY LEC-
TURES ON PSYCHOANALYSIS 15-16 (Strachey ed. 1965), comparing psychoses to dreams with
their obsessions and delusions and their turning away from the world to unconscious, in-
stinctual forces; id at 59, 160, developing the delusive, hallucinatory, introjective nature of
functional psychoses; S. FREUD, INTRO., note 400 supra, at 367-68, where the paranoid's
typical delusive and convertive (e.g., father to employer, love to hate) symptoms are devel-
oped and exemplified, and at 368-72, where the psychosexual aspects of paranoia, especially
interrelated narcistic/homosexual conversions and delusions, are specially developed; id at
370, where there are developed some discrete symptoms of melancholia (manic-depression),
including irresistible self-reproaches, narcistic identifications, and ambivalence (the last be-
ing shared by schizophrenics-including paranoids); Freud, Neurosis and Psychosis, in 19
STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 149
(1961), where, e.g., Freud said psychosis reflects conflict between the ego and the superego
(internalized parental images, ego-ideal) or the ego and the outer world, while psychoneuro-
sis results from conflict between ego and id (unconscious wishes and drives-man's instinc-
tual aspect); FINE, note 245 supra, at 123-27, where are described paranoid's symptoms of
libido (sexual energy/drive) denial, hate manufacture, and projection/introjection (believ-
ing one's motives or wishes are another's or viie versa) as well as the relation of psychoses and
neuroses; ENCYC., note 400 supra, at 267, 268-69, where psychosis and neurosis are compared
some other posited syndromes appear to be functional psychoses involving6

40 5 40
severe reality-resting impairment: hysterical psychoses; 4 10 gestational;
lactational; 40 7 menstrual;
40 8
reactive; 40 9 "barbed wire"; borderline.411
Various "organic" psychoses (psychoses associated with organic disease or
other biological disorder, toxin, or physical trauma) also involve reality
impairment. Among these are: accidental; 4 12 alcoholic; 4 13 arterioscle- 17 4
4 15 4 16
rotic; 4 14 exhaustive; postinfectious; and, perhaps, climacteric.
There are, then, many types and causes of psychoses involving serious loss
of contact with reality or delusive, hallucinatory, compulsive, hysterical,
amnesiac, and/or convertive perception or conduct. Unlike normal and
many neurotic persons, psychotics frequently believe or act out fanta-
4 19
sies 4 18 or dream-state-like impulses normally kept unconscious, or ex-
420
perience uncontrollable antisocial or amoral compulsions. A psychotic
may experience remissions during which he appears lucid and normal; or
a psychosis may be latent and the afflicted person apparently normal or
merely neurotic until experiencing severe trauma or unbearable internal
pressure. 42 1 Whatever the ordinary incidence of a psychotic's symptoms
structually and symptomatically; S. FREUD: DICTIONARY OF PSYCHOANALYSIS 104 ("Neu-

rosis and Psychosis"), 125 ("Psychosis") (Fodor and Gaynor ed. 1958) [hereinafter Fodor and
Gaynor]; STEDMAN's, note 400 supra, at 1166.
405. PSYCH. DICT., note 241 supra, at 448.
406. Id Compare Deutsch, The Psychology of Woman in Relation to the Functions of Reproduc-
tion, in THE PSYCHOANALYTIC READER 199-203 (Flies ed. 1948) [hereinafter Deutsch].
408. E. BLUER, TEXTBOOK OF PSYCHIATRY (Brill ed. 1930) [hereinafter BLUER], as
cited in PSYCH. DIcT., note 241 supra, at 448.
409. BLUER, note 408 supra, as cited in PSYCH. DICT., note 241 supra, at 449.
410. PSYCH. DICT., note 241 supra, at 447.
411. ENCYC., supra note 400, at 354 (under Psychotic Character); FINE, supra note 245, at
107. Compare FINE, supra, at 106-111, 168, and 249-50.
412. PSYCH. DICT., note 241 supra, at 447, citing, inter aha, A. BUCKLEY, THE BASIS OF
PSYCHIATRY (1920). Compare HARRISON, note 155 supra, at 1772 (noting view that would
account for post-traumatic psychosis by reference to "constitutional peculiarity" like that
caused by residual alcoholic damage, a predisposition "laid bare" by head injury, with
symptoms including suspiciousness, paranoid delusions, "unaccountable outbursts of violent
temper," (sometimes) homicidal or suicidal inclinations, and "progressive hyperactivity, de-
lirium and mania").
414. PSYCH. DicT., note 241 supra, at 447.
415. Id at 448.
416. Id
417. Id at 447 (psychotic reaction associated with climacterium-"change of life").
418. ENCYC., note 400 supra, at 352. But see, as to acting out fantasies, Alexander, Neu-
rotic Character, 11 J. PSYCHOANALYSIS 292 (1930).
419. NEW INTRO. LECTURES, note 244 supra, at 15-17; ENCYC., note 400 supra, at 268,
269; Fodor and Gaynor, note 404 supra, at 125; PSYCH. DICT., note 241 supra, at 446-47
(under "Psychosis"-breakdown of censorship of unconscious wishes and drives), citing S.
FREUD, INTERPRETATION OF DREAMS (3d ed. by Brill 1933).
420. See, e.g., note 412 supra.
421. Compare notes 411-12 supra and PSYCH. DIcT., note 241 supra, at 448 ("psychosis,
hysterical") and at 449 ("psychosis, reactive") with NEW INTRO. LErCTURES, note 244 supra
or of psychotic episodes in cases of potential or borderline psychosis or

psychotic character, however, there appears a special likelihood of acute
psychotic behavior where the psychosis-inclined person suffers an immi-
nently fatal trauma, related or unrelated to his antecedent behavior.4 22
In view of the positing of various latent, borderline, accidental, reac-
tive, and similar psychotic or potentially psychotic personalities and
psychotic or paranoiac characters, and in view of debates 423 on whether
various or all psychotic or potentially psychotic dispositions are functional
or organic, it is impossible to determine the exact import of the responses
to my poll question 13(a). 424 Respondents may have had in mind only
that number of persons diagnosable as chronic psychotics or may have
included other categories. Yet, in any event, it would seem fair to say that
there is no less than a 5% chance that a person suffering an imminently
fatal trauma will also suffer relatively severe reality-testing impairment
possibly involving various of the related specific symptoms associated with
psychosis. 4 25 If the moribund declarant is not a chronic psychotic with
consistent reality-testing impairment, the fatal trauma he has suffered
may render him psychotically or quasi-psychotically disabled. 4 26
at 16. See also Carr v. Radkey, 393 S.W.2d 806 (Tex. 1965) (psychiatric testimony that
manic-depressives have lucid periods when they can understand the business or legal signifi-
cance of their conduct).
422. If, as the psychoanalytic community has suggested [FINE, note 245 supra, at 106-11,
168, 249-50; Fodor and Gaynor, note 404 supra, at 104; PSYCH. DICT., note 241 supra, at 94,
where paranoic character is described; ENcYC., note 400 supra, at 354; but see Eseynck, Neuro-
sisand Psychosis. An Experimental Analysis, 102 J. MENT. Sci. 517 (1956)], the difference be-
tween psychosis and neurosis is largely one of degree of unbearable-thought repression [See
also Nunberg, Character and Neurosis, 37 INT'L J. PSYCHOANALYSIS 36 (1956); but see Alexan-
der, Neurotic Character, 11 J. PSYCHOANALYSIS 292 (1930).], the responses to Survey questions
10-12, and Tables It(A) and It(B) would also support this observation (see Appendix, infra).
423. Compare ENCYC., note 400 supra, at 351 and FINE, note 245 supra, at 11-12, 17, 162,
248-51 with J. PINCUS & G. TUCKER, BEHAVIORAL NEUROLOGY 224 (2d ed. 1978), SHA-
PIRO, note 241 supra, at 54-55, W. REICH, note 241 supra, at 88, Christensen, Character Disor-
der. The Twentieth Centuq "'Neuroszr",6 U.S. ARMED FORCES MED. J. 1597, 1599-1600 (1955)
and Slater, Hysterta 311, 107 J. MENT. SCI. 359 (1961). See generally EYSENCK & WILSON,
EXPERIMENTAL STUDY OF FREUDIAN THEORIES (1973).
424. See Survey question 13(a) and Table III, Appendix, infia.
425. See note 392 and accompanying text supra and Part III B l(a)(1) supra (under head-
ing 'Psychoses'). If the high side of the relevant mean (Table 111) better reflects the true
statistic (a possibility supported by other sources, see note 293, supra, and if Survey respon-
dents assumed that only chronic psychotics comprised the class 'psychotic,' the 5% estimate
would seem conservative. This would be so even if hospitalized psychotics had a less than
normal chance of being dying declarants (or nonhospitalized ones did not have a more than
normal chance of being dying declarants). See also high and low responses, median, and
double mode for Survey question 13(a), shown on Table III, Appendix, in/a.
426. Not only is it arguable that trauma may activate latent psychoses or exacerbate
symptoms of a borderline case or of a psychotic character, but it is also arguable that an
otherwise apparently normal person may have psychotic-like symptoms, e.g., hallucinations,
during shock following an imminently fatal blow. Compare notes 405, 409, 411-12, 415, and
422 supra with SCHUMER, note 155 supra, HARRISON, note 155 supra, at 224, 1772-73 (symp-
toms of blood-loss and head trauma shocks), WELL, supra note 155, at 251, 257 (head/trunk
Whether the symptom be acute depression, acute mania, paranoid delu-

sion, hallucination, amnesia, and/or undifferentiated reality-testing im-
pairment, it would preclude or diminish the victim's reliability as a
declarant. If a witness to a dying declaration were not skilled enough to
know whether the declarant's mind was truly unimpaired by the fatal
trauma, how could a court be sure of the declaration's trustworthiness?
(2) Neuroses, Character Neuroses, and Psychopathy
Psychiatrists and psychologists agree on the existence of sundry, dis-

crete, nonpsychotic psycho-pathological syndromes the bulk of which
they would label "neuroses. ' 427 Different schools of thought among these
communities disagree variously as to the number, etiologies, and prog-
noses of these disorders. Some, viewing these disorders as conditioned
states, classify and treat neuroses as objective behavioral patterns,
whether symptoms include introspective (autoplastic) experience (e.g., de-
pressive fantasy) or antisocial, demonstrative behavior (alloplasty).428
Viewing all but a few, "organic" disorders as caused by or reflected in
intrapsychic conflict arising from environmentally stimulated autogenous
repression of libidinal ("sexual") impulses, others-psychoanalysts-treat
neurosis largely in terms of its relation to the neurotic's psychosexual his-
tory.429 Still others mix psychoanalytic and behaviorist theories or en-
and chest trauma shocks) and Dr. William Lammers, Jr., Grief: Dealing with Loss Before and
After Death, OPTIONS III 770126, NATIONAL PUBLIC RADIO (hereinafter cited as Lammers]
[where "death occurs as the result of the (sic) accident, or a heart attack, or a stroke that has
an immediate fatal result, then the feelings are quite exaggerated" and "the feelings" are
"denial" of moribundity, unmodulated "anger" at God and the world, "depression" and
others, in that order, as established by Kubler-Ross in her 200-plus patient study published
in E. KUBLER-ROss, ON DEATH AND DYING (1969)]. See also A. WEISMAN, ON DYING AND
DENYING 124-26, 126-68, 184-85, 187-89 (1972) (reality-testing impairment and hallucina-
tions associated with recognition of terminal illness); KUBLER-ROss, supra, at 44, 48-50
(1969) (irrational anger associated with recognition of terminal illness).
427. Compare FINE, supra note 245, at 11-12, 17, 70, 114-15, 162, 348-51; Alexander, The
Neurotic Character, 11 J. PSYCHOANALYSIS 292 (1930) [hereinafter Neurotic Character]; W.
REICH, note 241 supra at 45, Erikson, Identity and the Lift Cycle, PSYCHOLOGICAL ISSUES
(Monograph # 1 1959) [hereinafter Identity], and Nunberg, Character and Neurosis, 37 INT'L J.
PSYCHOANALYSIS 36 (1956) [hereinafter Character and Neurosis] with Christensen, Character
Disorder. The Twentieth Century Neurosis, 6 U.S. ARMED FORCES MED. J. 1597 (1955) [here-
inafter Character Disorder]; Slater, Hysteria 3/i, 107 J. MET. Sci. 359 (1961); EYSENCK &
WILSON, EXPERIMENTAL STUDY OF FREUDIAN THEORIES (1973) [hereinafter EYSENCK &
WILSON]; and H. EYSENCK & S. RACHMAN, CAUSES AND CURES OF NEUROSIS (1965) [here-
inafter H. EYSENCK & S. RACHMAN].
428. See generally EYSENCK & WILSON, supra note 427; H. EYSENCK & S. RACHMAN,
supra note 427; B.F. SKINNER, SCIENCE AND HUMAN BEHAVIOR (1953); B.F. SKINNER, BE-
YOND FREEDOM AND DIGNITY (1971); F. WATSON, BEHAVIORISM (1930); J. WOLPE & LAZ-
ARUS, BEHAVIOR THERAPY TECHNIQUES (1966).
429. See generally S. FREUD, INTRO., supra note 400, at 217-372; FINE, supra note 245, at
1, 7-19, 35-59, 62-91, 106-15, 189-94; PSYCH. DICT., supra note 241, at 368-69 ("neurosis");
W. REICH, supra note 241, at 10-281; Characterand Neurosis, supra note 427; Neurotic Character,
supra note 427; Character Disorder,supra note 427. See also READER, note 242 supra, at 192-287
graft characterological or "organic" notions onto psychoanalytic or

4 30
behaviorist views.
Recalling publication costs and life's shortness and noting that this is
not a psychological treatise, I will discuss this Part's evidence topic only
43 1
from the analytic (psychoanalytic and character-analytic) perspective.
This choice was suggested by several factors: (1) The more important
distinctions among the various schools seem to be in goals and treatment.
For example, while analysts and behaviorists agree on the existence of
personality-organizing, basic instincts 432 and on the relative inelasticity of
most neurotic types, 4 33 the two schools strongly disagree on the nature of
psychic health-its relation to the basic instincts and its attainability by
exogenous conditioning rather than endogenous psychic reorganiza-
tion. 434 Goals and treatment are barely even indirectly relevant to this
Part's topic, which turns around etiology, conduct, and prognosis, ie., the
dynamics of neurosis. (2) Understanding of the dynamics of psychic states
has been attributable largely to Freudian (psychoanalytic) and related
(e.g., Reichian character-analytic) theory. 435 (3) It appears that most cli-
and succeeding "ONTOGENETIC TABLE" (articles by Deutsch, Lampl-deGroot, and

Brunswick, and editorials by Fliess); Identit, supra note 427, at 110-146; C. JUNG, COL-
LECTED PAPERS ON ANALYTICAL PSYCHOLOGY (1916).
430. Seegenera/l W. SARGANT & E. SLATER, AN INTRODUCTION To PHYSICAL METH-
ODS OF TREATMENT IN PSYCHIATRY (4th ed. 1963); Hysteria 3/, supra note 241 (mixed
treatments, including analytic, psychopharmacological, and physical, and various diagnostic
trends critically examined); D. MALAN, A STUDY OF BRIEF PSYCHOTHERAPY (1963); A.
ADLER, PRACTICE AND THEORY OF INDIVIDUAL PSYCHOLOGY (Radin trans. 1924) (person-
ality or character emphasized); T. BAN, PSYCHOPARMACOLOGY (1969); EXISTENCE, A NEW
DIMENSION IN PSYCHIATRY AND PSYCHOLOGY (Rollo ed. 1958) (especially articles by
Straus, Von Gebsattel, and Rollo) (existential therapy or 'daseinsanalyse').
431. Even among those of this persuasion bitter disagreements fester. Compare Character
Disorder, note 427 supra, and Neuroti Character, note 427 supra, with W. REICH, note 241 supra,
at 42-281, and Character and Neurost, note 427 supra. See also READER, note 242 supra, at 127-
28, 353-68; Briehl, Wi/hrlm Reich." Character Ana/ysir, in PSYCHOANALYTIC PIONEERS 430-36
(Alexander, Eisenstein, and Grotjhan ed. 1966) [hereinafter Briehl]; PSYCH. DICT., note 241
supra, at 93-95, 592-94, 609-610; ENCYC., note 400 supra, at 354; FINE, note 245 supra, at 68-
69, 114-15.
432. F. WATSON, SCIENCE AND HUMAN BEHAVIOR (1953); FINE, supra note 245, at 14-
15, 69-70, 173-79; ENCYCLOPAEDIA BRITANNICA, 6 MACROPAEDIA 760 (1974). See Miller &
Chapin, Can Anybody Here Help Marcia Burton, in PHILADELPHIA MAGAZINE, December 1977
[hereinafter PHILA. MAG.] at 179, 304-07.
433. Compare Wolpe & Rachman, Psychoana/ytic 'evidence' A critique basedon Freud's Case of
Little Hans, in EYSENCK & WILSON, supra note 427, at 317, 323-36 and EYSENCK & WILSON,
supra, at 365-80 with PHILA. MAG., supra note 432, at 303 (Tables), Hysteria 31/, supra note
241, at 359-60, 370-71 and NEW INTRO. LECTURES, supra note 244, at 153-56.
434. See generaly notes 430, 432-33 supra; Freud, FreudsPsychoanalytic Procedure (1904) in
5 STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 16
(1953); FINE, supra note 245, at 13, 70-76, 80-83, 91-94; READER, supra note 242, at 192-287;
W. REICH, note 241 supra, at 169-93; Identi'fy, supra note 427.
435. FINE, note 245 supra, at 254, quoting E. BORIN, HISTORY OF EXPERIMENTAL PSY-
CHOLOGY (1950). One can also infer this from a skimming of purportedly unbiased, ency-
clopedic works. See, e.g. PSYCH. DICT., note 241 supra, at, e.g., 94 ("character, neurotic"),
nicians are in some sense analytically oriented.4 36 Clinicians supply most

of the behavioral and related data necessary to the proper treatment of
this Part's topic. (4) Many criticisms of psychoanalytic theory seem
437
founded in misunderstanding, or even in aggressive philosophic bias.
272-73 ("hysteria"), 368-70 ("neurosis" and related terms), 446-47 ("psychosis"); ENCYCLO-
PAEDIA BRITANNICA, 15 MACROPAEDIA 145-47 (1974); STEDMAN'S, note 400 supra, at 1163-
64 (definition of 'psychiatry' heavily psychoanalytic). See also PHILA. MAG., note 432 supra.
Such is the claim of psychoanalytic apologists. E.g., FINE, note 245 supra, at 53-54, 91, 124,
248-58. One can infer this also from the vigor with which avowedly opposing schools of
thought devote substantial energies to disputation of Freudian and later psychoanalytic the-
ory. See EYSENCK & WILSON, note 427 supra, at 317-96, and at xiv ("Foreword"), where the
editors describe "abnormal psychology, personality, and social psychology" as "areas" where
"Freudian theories have always played an important part."
437. One argument against psychoanalysis is that its theory is not borne out in treat-
ment success rates. Eysenck, The effcts ofpsychotherapy An evaluation, 16 J. CONSULT. PSYCH.
319 (1952), reprintedin EYSENCK & WILSON, note 427 supra, at 365, and commented on in 1.
at 373 with references to other sources: e.g., Eysenck, The effects ofpsychotherapy. A reply,
50 J. ABNORM. SOC. PSYCH. 147 (1955); Eysenck, Behavior therapy, spontaneous remission and
transference in neurotics; 119 AMER. J. PSYCHOL. 867 (1963); Eysenck, Behavior therapy, extinction
and relapse in neurosis, 109 BRIT. J. PSYCH. 12 (1963); Eysenck, The e cts ofpsychotherapy recon-
sidered, 12 ACTA PSYCHOTHERAPY 38 (1964); H. EYSENCK, THE EFFECTS OF PSYCHO-
THERAPY (1966) and S. RACHMAN, THE EFFECTS OF PSYCHOTHERAPY (1971). Eysenck
argues two points: (a) that the incidence of "cured," "much improved," and "improved"
cases in psychoanalysis or related "eclectic" therapy is small; (b) that the incidence is smaller
than the incidence of spontaneous remission or remission after largely custodial care. In
Eysenck's study, 44% of psychoanalytic patients were purported to have been cured, much
improved, or improved, and 64% were similarly classified among eclectic patients;
supposedly 56% and 36% respectively had "not improved," "died," or "left therapy."
EYSENCK & WILSON, supra, at 368-70. Of one "control" group of purportedly "neurotic"
patients hospitalized with supposedly minimal or no psychiatric care, 45% allegedly "recov-
ered" in one year of custody, 27% in two years (a total of 72%) and another 10, 5, and 4
percents in the third, fourth and fifth years (making a 90% grand total); of the other "con-
trol" group considered, 72% "recovered" in two years. Eysenck, supra, in EYSENCK & WIL-
SON, supra, at 365-67, relying on Denker, Results of treatment of psychoneuroses by the general
practitioner, 46 N.Y. STATE J. MED. 2164 (1946) and Landis, Statirttcalevaluation ofpsychothera-
peutic methods, in CONCEPTS AND PROBLEMS OF PSYCHOTHERAPY 155-65 (Hinsey ed. 1938).
The 72% control-group figure was used as a comparison basis for reasons indicated in Esy-
enck, supra, as quoted in EYSENCK & WILSON, supra, at 368. 'Cure' was defined as (1) "re-
turn to work, and ability to carry on well in economic adjustments for at least a five year
period," (2) "complaint of no further or very slight difficulties," and (3) "making successful
social adjustments," EYSENCK & WILSON, supra, at 367, or by a standard "probably more
lenient" than a psychoanalyst or eclectic would use, id. at 371. Eysenck admits that there is
disagreement as to basic concepts and definitions among those of his persuasion, those on
whose hospital release statistics he relied, the sundry representatives of the psychoanalytic
and ecletic communities whose cases were surveyed, and others treating or diagnosing pa-
tients. He also admits (later, id at 374-80, substantially withdrawing this admission) that
"[d]efinite proof [of empirical disproof of Freudian theory] would require a special investiga-
tion, carefully planned and methodologically more adequate [sic] than these adhoc compari-
sons." Id at 372. Eysenck yet asserts that the "figures fail to support the hypothesis that
psychotherapy facilitates recovery from neurotic disorder." Id at 372-73. He asserts this
despite the "figures ... do not necessarily disprove the possibility of therapeutic effective-
ness," id at 371, despite "obvious shortcomings in any actuarial comparison," id., and de-
spite the "subjectivity" (id at 368) of patient and therapeutic result-classifications. As to
actuarial comparison inadequacy and classification subjectivity problems, Eysenck merely
The complaint that Freudian or Reichian theory is heavily schematic
assumes insignificance (e.g., id at 368), a behavior for which he and others of his persuasion
lambast Freudians (e.g., id. at 327-40, 386, 388-89). More important, he fails to recognize vss-
gi-vis the relative incidence of improvement question that the definitional differences he
treats as relatively insignificant quantitative matters are not insignificant or merey quantita-
tive but critically qualitative (the quantitative/qualitative confusion matter ironically being
one he elsewhere, id. at 360-63, marshals against Freudian theory). Probably most analysts
would consider Eysenck's first index of "cure" to indicate mere "coping" of benefit to society
and family but, alone, an incomplete improvement in the patient's lot. See note 434 supra.
Analysts probably would think that the second might be a defense (repression or resist-
ance)-contraindicators, not indicators, of cure. See generally notes 460-89 and accompany-
ing text, mfia, especially 467, 474-84 and accompanying text; Character and Neurosis, note 427
supra, at 44; ENCYC., note 400 supra, at 347-51; W. REICH, note 241 supra, e.g., at 23-24. The
third is purely a subjective conclusion, which, surprisingly in a study lauding objectivity and
viciously attacking the opposite, is not criticised by the commentator(s). What is "success-
ful"? Whose standards govern? Is the goal merely "coping," or finding joy in existence and
private and social activity? Eysenck does not consider that patients might be released from
"custodial" hospitalizations simply because their symptoms retreat or change enough to
make their freedom safe while critical outpatients need desperately to be admitted to the
hospital's short space. If the condition of a patient thus released merely does not substan-
tially deteriorate, the hospital may treat him as "making satisfactory social adjustment."
Another, related matter is the absence of evidence on whether, or by whom, in-depth, consis-
tent, long-term, case-by-case checks were made on release-time condition and after-release
progress. Suppose a sef-admitted inmate finds, contrary to his expectations, that he is not
receiving substantial treatment or even significant, temporary symptom relief. Might he not
feign cessation or reduction of symptoms to facilitate his release and thereafter withhold
data from hospital-related inquiry? Might he not even have developed sufficient skepticism
of psychiatry and mental health care to be close-mouthed to any professional inquiry?
Eysenck admits that his control group members were voluntary admittees. No attempt was
made to classify the spontaneous remittants by neurotic or other psycho-pathological type-
except that great care was used to exclude psychotics; and, while patients were seen regu-
larly by their own physicians and sedatives and other medications and advice and encour-
agement given, only superficial psychotherapy was provided. Id. at 366-67. It is difficult to
imagine a screening process unconcerned with psychopathological types generally that can
finely segregate psychotics, since neurotic psychopaths, borderline cases, psychotic charac-
ters, neurotic paranoids, and hallucinating hysterics (see, e.g., D. SHAPIRO, note 241 supra, at
54-107; notes 241, 405, 411, 421, and accompanying text supra; and notes 466-67, 519-20,
530-34 and surrounding text in./a; Hysteria 311, note 241 supra) show symptoms common to
both neuroses and psychoses. Eysenck's data also included Denker's observation that eco-
nomic differences among "control" patients might explain the remissions or early recoveries
of some, those with dwindling insurance and unclear financial support for further hospitali-
zation somehow finding a way to social adjustment. EYSENCK & WILSON, supra, at 367.
Were those patients ever really sick enough to indicate hospitalization? How do we know
whether the others remained because of need, not convenience? Did Eysenck take into ac-
count that likely in most outpatient analysis cases the patient is middle class or higher on the
economic scale [See PHILA. MAG., note 432 supra, at 303 (chart); FINE, note 245 supra, at
196.]? Denker (EYSENCK & WILSON, supra, at 367) and Landis (id at 386) admit that differ-
ences in economic, educational, and social status may be important variables that may not
have been treated properly in the studies Eysenck used. Eysenck sidesteps the qualita-
tive/quantitative differences among nonpsychotic psychopathologies. Analysts do not treat
organic neuroses. Organic neurosis, apparantly included in the "control" cases Eysenck con-
sidered (id at 368), may respond protractedly to certain sedatives. Hysterics might respond
to a mere change of environment more readily than might obsessives. W. REICH, note 241
supra, at 204-17. See SHAPIRO, note 241 supra, at 108-33. How many "spontaneous remit-
tants" were hysterics? What were the incidences of obsessives among analytic cases?
Eysenck fudges in still another way-again on the relation of standard of "cure" and sever-
could be a positive recommendation in such jurisprudential adventures as
ity and type of illness. One "control" group appeared to involve illnesses "not quite as
severe" as those of another (Landis's cases, as reported in id. at 365-66). Id. at 368. Thus at
least two neurosis levels were involved. Eysenck avoided this problem too with the assertion
that the differences did not matter. Id at 371. Eysenck's study also involves a problem of
standards-application.For all we know, not only may practitioners involved have disregarded
or not developed relevant data before applying standards, but also they may have applied
dissimilar standards variously, or appreciated or perceived similar standards differently.
Though Landis (id at 365) admitted that his proofs of spontaneous remission were subjec-
tive judgments of general practitioners, he and Eysenck avoid the implications of this admis-
sion with the assertion that such judgments are as good as any. Id. at 365, 371. Eysenck
neglects the significance of intelligence, training, personality, or health differences among
therapists or physicians responsible for supposed failures or successes and the production of
his data. In psychoanalysis, "cure" may be a function of the person of the therapist as well
as the theory he espouses. See, e.g., W. REICH, note 241 supra, at 21-149. Compare Herron,
Further Thoughts on PsychotherapeuticDeprofessionahization, 15 J. HUMANISTIC PSYCH. 65 (1975)
with Oden, Consumer Interests in Therapeutic Outcome Studies: A Reply to Herron, 15 J. HUMANIS-
TIC PSYCH. 75 (1975). It is difficult to imagine how this would not be so in any therapy, at
least vis-i-ois the intelligence and training of the therapist. Finally, Eysenck's conclusions
suffer a grave, methodological flaw. Though "slightly improved" analytic and eclectic cases
were excluded from percent "cured" tallies, they and analytic or eclectic cases where patients
died (!) were lumped with the "not improved" category! One can also question his inclusion
in the "not improved" category of the "left treatment" group. Moreover, was none of the
supposed spontaneous remissions actually--by analytic if not the Denker/Eysenck three-ele-
ment standard-merely "slightly improved"? No evidence excludes the possibility, and it
seems a good probability in view of the subjective, general-practitioner reports used to iden-
tify spontaneous remissions. Thus, the psychoanalytic/eclectic and/or the "control" group
percent "cured" tallies would seem erroneous, and their comparison invalid. Eysenck's
treatment of the "slightly improved" class might be excusable. Arguably, on the premise
that there are no degrees of subjectivity, one might equally respect the subjective judgments
of analysts or eclectics and general practitioners as to the existence of improvement (though
such respect would be rife with subjectivity and assumption, and its empirical validity ques-
tionable). Eysenck's inclusion of "slightly improved" figures in the "not improved" cate-
gory, however, is inexcusable. "Slightly improved" and "not improved" are mutually exclu-
sive concepts. (That one may not be improved enough to be considered "cured" is irrele-
vant. The same is true of one who is merely "improved" or even "much improved." All the
"improved" categories fall short of the absolute term 'cured'; yet all reflect a degree of suc-
cess, rather than failure, while "not improved" is a variant of "failure.") It was outrageous
to include the class "died" in the "not improved" category. Unless a death is therapy-re-
lated, it is obviously not a therapeutic failure; and Eysenck did not suggest that any death
was therapy-related. Eysenck and others level the argument that Freudians either fail to
consider whether there may be result explanations alternative to Freudian theory or alter
their theory to fit their results. EYSENCK & WILSON, supra, generally. For every alternative
Eysenck and/ or Wilson imagine, the Freudian theory is the alternative. Behaviorist claims
(e.g., PHILA. MAG., supra note 432, at 307-08; EYSENCK & WILSON, supra, at 379)-that
symptomatic behaviorist cures are permanent contrary to analysts' predictions-can be at-
tacked with 'alternatives' arguments. The nonreturn of symptoms (or nondevelopment of
substitute symptoms) that behaviorists claim may in fact reflect the behaviorists' excluding
joylessness, compensation, reaction-formation, and resistance from their definition of neu-
rotic behavior or experience. "Former" neurotics whose symptoms included exasperation
over employment difficulties but who have been "conditioned" to excel at income-genera-
tion might (according to analysts) be "reacting," "compensating," or "resisting"-protecting
or defending neurotic egos or characterologically taking a "flight into health" to avoid neu-
rotic character armor dissolution. See alro 0. MOWRER, LEARNING THEORY AND BEHAVIOR
ix (1960). Freudians have been accused of objecting to non-Freudians experimentally test-
this. Such neat schemata fit the Aristotelianism of legal method. 43 8
ing Freudian theory because they are afraid that it will not survive unbiased experimenta-
tion. Id at 7-8. This argument assumes too much. The behaviorist experimenter may per-
ceive according to his behavzorist bias. Besides, it is not necessary that Freudian theory is
incorrect because it is untestable by experimental methods. Fine observes that Freud's the-
ory of parapraxes (e.g., slips of the tongue) is not experimentally testable because
parapraxes cannot be repeated. FINE, note 245 supra, at 56. Paraprax theory can, however,
be clinically supported. [A pertinent sidelight is that Freudian dream theory has received
substantial support on nonpsychiatric experimental evidence. See id at 52-54, relying on
Fisher, A Study of the Prelimina Stages of the Construction of Dreams and Images, 5 J. AMER.
PSYCHOANALT. Assoc. 5 (1957); Fleitman & Dement, The Relattin of Eye-Movements During
Sleep to Dream Activity: An Objective Method for the Study of Dreaming, 53 J. EXPERIMENTAL
PSYCH. 339 (1957); Goodenough, Shapiro, Holden, & Steinschreiber, A Comparson of Dream-
ers and Nondreamers, 59 J. ABNORMAL AND SOC. PSYCHOL. 295 (1959); Dement, The Etct of
Dream Deprivation, 131 SCIENCE 1705 (1960).] EYSENCK & WILSON, supra, is largely a set of
the editors' critical comments on their collection of reprints of experimental proofs of Freu-
dian theories. Each comment suffers one or more of the types of deficiencies developed
earlier in this note, or others. Some of the proofs of Freudian theories are impressive. The
sarcastic tone of some editorial remarks (e.g., id., at 11-12) suggests emotionally charged
philosophical bias rather than objective criticism. If one uses Eysenck's statistics on psycho-
analytic and eclectic results, adding the "slightly improved" figures to the "cured" and "im-
proved" range figures and subtracting them from the failure categories, one finds a 65.1%
success rate for psychoanalytic treatment, a 92.2% success rate for eclectic treatment, and a
combined success rate of 89.6%. These rates would increase somewhat if the "died" and
"left therapy" figures were similarly shifted; but I cannot show the increase because Eysenck
did not give separate figures for these categories. In any event, Eysenck's figures allow the
assertion that analytic success approaches 100%. This is especially remarkable since the
cases reflected in Eysenck's figures exclude Freud's own cases and date between 1920 and
1951, with the bulk of cases being closer to 1920 (cases early in analytic experience). A
young art can be expected to know a number of failures. Presumably the success rate would
have been higher if the inventor's post-invention practice had been accounted for; Freud was
considered an excellent therapist. More important, the medical and psychological commu-
nities generally consider analytic theory valid. See Herron, supra, for a more Freud-favoring
view of Eysenck's figures.
438. As to Reich and schematicism see FINE, note 245 supra, at 69, 93 (note). But see id.
at 69, 93, 104-05. The same criticism has been levelled at Freud. Id at 13-14, 189. This
criticism has not affected the general acceptance of Freudian theory. It has been suggested
that the 'too schematic' criticism may be a reflection of differences in mass culture-between
the European (French-Austrian) and American, the personal, discontinuous, dialectically
systematic, and the social, continuous, and pragmatically vitalistic. SeeJ. LAPLANCHE, LIFE
AND DEATH IN PSYCHOANALYSIS ix-x, 1-2 (1976). Character analysis is largely an extension
of psychoanalysis, with emphasis on analysis of resistance [compare NEW INTRO. LECTURES,
note 244 supra, at 108-110, S. FREUD, INTRO., note 400 supra, at 104, 126, 129, 191, 208, 211,
253-58, 278, 366, 383-99 supra, FINE, supra at 95-103, Briehl, note 431 supra, at 430-36, and
CharacterandNeurosi , note 427 supra, at 44 (column 2) with W. REICH, note 241 supra, at 21-
12 l]-on negative as well as positive transference (compare, e.g., FINE, supra at 95-103 with W.
REICH, supra at 122-49). See also PSYCH. DICT., note 241 supra, at 609-10. For similarities
between character analysis and classical psychoanalysis and a positive assessment by Ameri-
can ego-psychology (e.g., vis-h-vis importance of psychosexuality), compare, e.g., FINE, supra, at
35-94, 117-140, 205-31, 234-38, HARTMANN, ESSAYS ON EGO PSYCHOLOGY (1964), READER,
note 242 supra, at 86-126, 185-287 (plus chart), 326-48 (Abraham papers), 353-68 (same),
Character Disorder, note 427 supra, at 1600-01, and Character and Neurosis, supra. See also D.
SHAPIRO, note 241 supra, at 180-99; Identity, note 427 supra, at 14-16, 52-97, 118-21, 166
(chart). As a practical matter, in view of the judicial preference for "established" medical
theory (e.g., FED. R. EvID. 803(18) and6J. WIGMORE, EVIDENCE §§ 1690-1700 and C. Mc-
Freudian theory turns on the premise that all nonorganic psychic

disorder arises from a fear of unbearable ideas. 439 As suggested above,
there prevalently appear to be two cardinal forms of chronic, nonorganic
psychopathology-neuroses and psychoses. 440 Freudian theory holds that
their distinction is a reflection of a difference in the degree 44 1 of the ego's
ability to handle libido (primal drives), a difference also reflected organi-
zationally in the focus of psychic conflict. The ego is one of three aspects
of the psyche, the other two being idand superego. 4 4 2 Ego is the aspect of
one's self whose function is to moderate between the id and the superego or
the environment. 443 Id is the sum of one's unconscious primal in-
stincts. 444 Superego is the effect of identification with external pressures,
like the affect of a father or father-substitute; it reflects itself in, e.g., ego-
ideal, "conscience," or "moral code."' 445 The neurotic suffers a conflict
between id and ego, the psychotic between ego and superego or outside
world. 4 4 6 Both orders of conflict, however, arise from the ego's relation to
CORMICK, EVIDENCE § 203) newer, still-experimental or not-yet-generally-accepted theories

that may discredit some older schemes are not appropriate for this article's purposes.
439. FINE, note 245 supra, at 12, 39.
440. Compare Eysenck, Neurosis and Psychosis: An ExpertmentalAnalysis, 102 J. MENT. SCI.
517-20 (1956); FINE, note 245 supra, at 106-07, 248-50; Fodor & Gaynor, note 404 supra, at
104; Character Disorder, note 427 supra, at 1599-1600; Neurotic Character, note 427 supra, at 304-
08, ENCYC., note 400 supra, at 268-69, 347-51, 354.
441. FINE note 245 supra, at 28, 109-11; Eysenck, Neurosis and Psychost: An Experimental
Analysis, 102 J. MENT. Sci. 517-20 (1956).
442. Freud, The Ego and the Id(1923), in 19 STANDARD EDITION OF THE COMPLETE
PSYCHOLOGICAL WORKS OF SIGMUND FREUD 40 (1961).
443. Id See also S. FREUD, INTRO., note 400 supra, at 90-214, 228-52, NEw INTRO. LEC-
TURES, note 244 supra, at 7-30, 57-111. The text accompanying this note is simplistic but
sufficient for this article's purpose. See also note 446 infra.
446. See note 443 supra; ENCYC., note 400 supra, at 268-69, cithg, e.g., Freud, Neurosis and
Psychosis and The Loss of Reality in Neurost and Psychosis, in 19 STANDARD EDITION OF COM-
PLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 149, 184 (1961); H. DEUTSCH, PsY-
CHOANALYSIS OF NEUROSIS (1951), and MENG, ON THE PROBLEMS OF NEUROSIS,
PSYCHOLOGY OF PSYCHOSES, ENDOCRINE SYSTEM 13 (1959); Fodor & Gaynor, note 404
supra, at 104. Freud divided neuroses into two groups--"transference" and "narcistic."
E.g., S. FREUD, INTRO., supra note 400, at 364-67; NEW INTRO. LECTURES, note 244 supra,
at 154-55. Transference neuroses (including hysterical and obsessive) were symptom neuro-
ses (see generally notes 453-517 and accompanying text infia) amenable to psychoanalysis
because they permitted the patient to develop transference of important libido to the ana-
lyst-to establish an emotional relationship with the therapist in which the patient can ex-
press crucial repressed wishes that need to be worked out. FINE, note 245 supra, at 96-103,
107, 189-94, 206-10, 234-38; S. FREUD, INTRO., supra; NEW INTRO. LECTURES, supra.
Narcisstic neuroses could not be treated in Freud's experience because the patient's narcis-
sism made him too self-centered for "transference" (presumably because it involved the pa-
tient's pitting his ego against his superego, which, reflecting the wishes of the patient's
parents, would reflect itself in the analyst. See S. FREUD, INTRO., supra, at 357-89; FINE,
supra, at 96-103, 106-11, 189-94, 234-38. In labeling psychopathologies Freud did not distin-
guish consistently according to dynamic content along lines now used. See note 400 supra;
FINE, supra, at 115. (Incidentally, the third, as-yet-unofficial, edition of the APA Diagnostic
the id. If interpersonal conflict, as between father and infant son respect-
ing the mother as love object, 4 4 7 is such that the particular infant can
accomodate through his ego's repression of aspects of his id, he may be-
come a neurotic. 4 4 a3 If, however, his ego cannot sufficiently repress the
conflicting libidinal forces, he may suffer an inhibition or warpage of su-
perego development and an opposition of ego and outer world in the serv-
449
ice of the id's chaotic forces.
and Statistical Manual will exclude the term "neurosis" in an attempt to alter psychiatric
language so as to abandon the neurosis/psychosis nosological dichotomy in favor of a set of
terms intended to reflect narrowly the biological and behavioral factors involved in particu-
lar psychopathologies. This is because it is believed that "neurosis" has been used to de-
scribe so many, diverse conditions that its utility has become questionable. The
International Disease Classification manual, however, will retain the term.) Freud consid-
ered dementia praecox (schizophrenia) a narcistic neurosis. S. FREUD, INTRO., supra, at
357-67; FINE, supra, at 106-07. Freud sometimes distinguished paranoia from other forms of
schizophrenia and (ambiguously) from melancholia (manic-depressive psychosis), S. FREUD,
INTRO., supra, at 358-73, treating paranoia and melancholia as involving persecution by and
hate for a previous love or sex object who was lost or who rejected the patient, id In para-
noia, the object and hence the persecution/hate feelings could be "converted" to another
object, e.g., from father to superior officer. Id at 367-70. In melancholia, the object was
projected on or into the patient's ego, and the patient suffered self-hate. Id at 370-71. Ap-
parently unlike dementia praecox, paranoia resembled melancholia in its aspect of self-re-
proach; the paranoid's hallmark, his persecution (by an ego-ideal), was delusion-a pain he
imposed on himself-and often associated with homosexual conversion (inversion of love
and sex strivings from external object to self or ego) involving some degree of hate inversion.
See id.at 366-71. In dementia praecox, such conversions, inversions, and introjections-
associated self-reproaches--were not the norm. See id; 5 S. FREUD, COLLECTED PAPERS 337
(1950). Freud was not clear (see FINE, supra, at 115) on whether narcistic neurosis and
psychosis were the same or different in degree, or whether paranoia was a psychosis or
narcistic neurosis. See id at 357-89; S.FREUD, INTRO., at 359. Sometimes he thought that
paranoia should be grouped with dementia praecox under the label "paraphrenia." NEW
INTRO. LECTURES, supra, at 367; ENCYC., supra, at 351-52, ciing Freud, Psychoanaohtii Notes on
the Autobiographical Account of a Case of Paranoia, 12 STANDARD EDITION OF THE COMPLETE
PSYCHOLOGICAL WORKS OF SIGMUND FREUD 318 (1958). Each citing S. FREUD, NEUROSIS
AND PSYCHOSIS, supra, the Fodor and Gaynor dictionary, supra note 404, at 104, says that
"psychosis" is the ... outcome of a . . . disturbance in the relation between the ego and its
environment (outer world), making no reference to superego or "narcissistic neurosis," while
ENCYC., supra, at 268, says that "in narcissistic neurosis, such as melancholia (depression),
[there was represented a conflict] between the ego and superego," and "in psychosis, be-
tween the ego and outer world." Since superego is a function of environmental pressures,
and since elsewhere ENCYC. supra (at 351) treats "narcissistic neuroses" and psychoses as
synonymous and drops the superego/outer-world distinction, in the text accompanying this
footnote I determined to put the psychosis-inducing conflict in the alternative: "between ego
and superego or outer world."
447. The reference is substantially to those assertedly universal (e.g., FINE, supra note
245, at 147, 150, 164, 184, 220-23) experiences comprising the "Oedipus complex," complete
attainment and successful accommodation of which being central to Freud's and psychoa-
nalysis's "normal" or "healthy" personality or character. E.g., S. FREUD, INTRO., supra note
400, at 281-96; NEW INTRO. LECTURES, supra note 244, at 95-135; READER, supra note 242,
at 148-64, 185-287 (plus table).
448. See Freud, Analysis of a Phobia in a Five-Year-Old Boy (1909), in 3 S. FREUD,
COLLECTED PAPERS 149 (1950); and see notes 446-47 supra; FINE, supra note 245, at 24-25,
96, 98-99, 193, 220-23.
449. See notes 446-47 supra; NEW INTRO. LECTURES, note 244 supra, at 16, 57-80.
Every infant is po'ymorphousperverse.450 His libidinal impulses may ca-

thect 45 I by or through anything erogenous to any stimulating or relevant
object, depending on his stage of psychosexual development. 452 If the
infant's psychosexual development is hampered, the relation among his
ego, id, and superego will be affected adversely, and he will become
psychically disturbed-probably neurotic. As with functional psychosis,
the psychosexual parameter of neurosis is fixation on or regression to an
infantile psychosexual stage or "pervasion" and repression of, and/or re-
action to, the related infantile libido, while the etiology is environment-
triggered, static endogenous anxiety. 453 But though the psychotic's be-
havior is often deranged, the neurotic's pathological behavior is merely
infantile.
The unconscious, home of libidinal forces, is timeless, spaceless, irra-
tional, and exempt from contradiction- 454 the dominion of "primary
process." Primary process operates toward discharge of all instinctual im-
pulses that the unconscious may present-release of cathected or ca-
thecting energy. The content of its objects is insignificant 45 5 Any idea(s)
can stand for any other(s) ("condensation") or can shift from origin to
distant, unrelated field ("displacement"). 45 6 Dreams 457 and psychotic
episodes 458 are like this process. On its surface, neurosis is not.
Fearing perilous conflicts between his id's productions and environ-
mental or superego forces, the neurotic's ego may spend itself repressing
or reacting to primary process. While his internal life may consist of auto-
plastic fantasies, hysterias, and obsessions (ego compromises between id
and superego or outer world), 459 and while he may be physically dis-
450. FINE, note 245 supra, at 80-82; NEW INTRO. LECTURES, note 244 supra, at 95-102;
S. FREUD, INTRO., note 400 supra, at 185-89, 266-80.
451. FINE, note 245 supra, at 37-38: a "cathexis" involves excitation concentrated in
some direction or area, Jie., an "emotional charge"; a cathected object is something desired
or feared.
452. See note 450 supra; FINE, note 245 supra, at 64-65, 66-68, 78-79, 184; NEW INTRO.
LECTURES, note 244 supra, at 64, 77, 117, 123-24; READER, note 242 supra, at 185-222, 261-
84.
453. S. FREUD, INTRO., note 400 supra, at 228-65, 297-356; FINE, note 245 supra, at 12-
15, 24, 64-65, 70-71, 80-81, 108, 111-15, 226-28; ENCYC., note 400 supra, at 267-68; NEW
INTRO. LECTURES, note 244 supra, at 89-102; Fodor and Gaynor, note 404 supra, at 102-06.
Compare W. REICH, note 241 supra, at 152-259. But see Identit, note 427 supra; D. SHAPIRO,
note 241 supra, at 1-22, 176-99.
454. NEW INTRO. LECTURES, note 244 supra, at 15-17, 73-75; FINE, note 245 supra, at
38.
455. FINE, note 245 supra, at 38; NEW INTRO. LECTURES, note 244 supra, at 73-75.
456. FINE, note 245 supra, at 38; NEW INTRO. LECTURES, note 244 supra, at 20, 73-75; S.
FREUD, INTRO., note 400 supra, at 150, 169, 209-11, 230, 259-62, 314-16, 320.
457. FINE, note 245 supra, at 40, 50; NEW INTRO. LECTURES, note 244 supra, at 15-19,
26, 29, 73-74.
458. NEW INTRO. LECTURES, note 244 supra, at 15-19; FINE, note 245 supra, at 50-51.
459. Compare S. FREUD, INTRO., supra note 400, at 228-65, 297-328; NEW INTRO. LEC-
TURES, note 244 supra, at 18-19, 25; ENCYC., note 400 supra, at 267-68; FINE, note 245 supra,
tressed and anxious, the neurotic's outward life may appear mostly ra-
tional. 460 Such is the classic 'symptom' neurotic or 'pure' neurotic. Yet
even such neurotics suffer manifest, demonstrative symptoms that are rel-
evant here.
46 1
Consider the classic obsessive neurotic:
The obsessional neurosis takes this form: the patient's mind is occupied
with thoughts that do not really interest him, he feels impulses which
seem alien to him, and he is impelled to perform actions which not only
afford him no pleasure but from which he is powerless to desist ...
The impulses . . . mostly . . . consist of something terrifying, such as
temptations to commit crimes . . . . As a matter of fact, he never...
carries these impulses into effect; flight and precautions invariably win.
What he does commit are very harmless, certainly trivial, acts-what are
termed obsessive actions-which are mostly repetitions and ceremonial
elaborations of ordinary, everyday performances, making these common
necessary actions . . . into highly elaborate tasks of almost insuperable
difficulty.
[H]e is perfectly aware of his condition . . . . Only he simply cannot
help himself .... Only one thing is upon to him-he can dsplace and he
can exchange [symptoms]. . . . [Eventually, doubt] appears in the intellec-
tual sphere, gradually spreading until it gnaws even at what is usually
held to be certain. All things combine to bring about an ever-increasing
indecisiveness, loss of energy, and curtailment of freedom . . . although
the obsessional neurotic is originally always a person of very energetic
disposition, often highly opinionated, and as a rule intellectually gifted
above the average. He has usually attained to an agreeably high stan-
dard of ethical developinent, is over-conscientious, and more than usu-
ally correct. . . . [I]t is a sufficiently arduous task to find one's bearings
in this maze of contradictory character-traits and morbid manifesta-
tions.
This Freudian description of infratherapeutic experience is also valid ex-
tratherapeutically.462 Freud's obsessives remember critical, pathogenic
traumas and even act out their fixations, albeit in masked and incom-
at 41-42, 50-52, 62-63, 79-82, 111-14; Fodor and Gaynor, note 404 supra, at 102, 104-06;
Characterand Neuroses, note 427 supra, at 38-41, 44. See general W. REICH, note 241 supra, at
153-93. As to the importance of the "outer world" pressure, see general Identity, note 427
supra; D. SHAPIRO, note 241 supra, at 1-22, 176-99. 'Alloplastic' and 'autoplastic' are oppo-
sites that some consider limits of character and symptom neuroses. See notes 468-69 and
surrounding text in/ya. 'Alloplasty' is the "developmental process by which the libido [sexual
desire, energy, or force] attaches and adapts itself to the environment" and is "the antithesis
of autoplasty." STEDMAN'S, note 400 supra, at 45 (alloplasty), 781 ("libidinous," "libido").
Compare REICH, note 241 supra, at 170. In "symptom" neuroses, repressed or warped sexual
impulses are experienced inwardly ('autoplastically') as neurotic symptoms or in dreams,
and the neurotic does not act out or otherwise externalize (put on the world or others) his
neurotic impulses and fixations. See notes 468-69 and surrounding text tn/a. But see notes
470-517 and surrounding text tn/a.
460. See note 459 supra; notes 453-67 and surrounding text 'n/a; Hysteria 3/1, note 241
supra, at 370-7 1. But see notes 470-517 and surrounding text in/ra.
461. S. FREUD, INTRO., note 400 supra, at 229-30 (emphasis added). Compare, e.g.,
PSYCH. DicT., note 241 supra, at 94.
462. FINE, note 245 supra, at 113.
463
pletely understood modes.
The classic hysteric, usually female, 464 also manifests actively (if indi-
rectly) her fixation: The hysteric has "amnesias on a grand scale," forget-
ting "whole chains of former impressions, which upon their return may be
literally described as having hitherto forgotten [links reaching] back to
earliest years of childhood, so that the hysterical amnesia is seen to be a
direct continuation of the infantile amnesia which hides the earliest im-
' 46 5
pressions of our mental life from US:"
[W]e are astonished to find that the most recent experiences of the patient
are liable to be forgotten . . . and that in particular the provocations
which induced the outbreak of the disease or aggravated it are at least
partially obliterated, if not entirely wiped out, by amnesia. From the
complete picture of any recent recollection important details have invaria-
bly disappeared or been replacedbyfatsifzcations. . . . [Sihortly before the
completion of analysis . . . recent experiences come to the surface, which
had managed to be withheld throughout . . .and had left noticeable
gaps in the context.
These derangements . . . are . . .characteristic of hysteria, in which
. . .italso happens even that states occur as symptoms (the hysterical
attacks) [presumably meaning conversion symptoms, like fainting, quasi-
epilepsy, vomiting]4 66 without necessarily leaving a trace of recollection
463. S. FREUD, INTRO., note 400 supra, at 250-51, 271. Compare D. SHAPIRO, note 241
supra, at 23-53.
464. I can offer no organized statistical support for my "usually female" assertion. The
encyclopedic, clinical, and theoretical literature, however, seems to indicate it. See D. SHA-
PIRO, note 241 supra, at 180. Compare, e.g., PSYCH. DICT., note 241 supra, at 94, 609 (hysteri-
cal character), FINE, note 245 supra, at 119, Hysteria 311, note 241 supra (careful reading
shows preponderantly more considered or related cases female), Neurotic Character, note 427
supra, at 302 (speaking of the hysteric's gastric symptoms as "covering pregnancy
phantasies"), D. SHAPIRO, supra, at 108-33, 194 (most cases and references female) and Miller
& Chotlos, supra note 242 (authors consistently refer to obsessive as "he" and hysteric as
"she") with HARRISON, note 155 supra, at 1865-68, REICH, note 241 supra, at 204 (noting
early recognition of connection between female hysteria and sexuality and speaking of the
basic hysterical traits-including coquetry-as being "especially in women"), id at 204-07
(describing the hysterical type in ways specially to be expected in women), id. at 165 (sug-
gesting that a prevalent outcome of females' penis envy--an "ever-present" female infant
experience-is hysteria). Freud's famous clinical "models" in the hysterial field have been
female cases [e.g., "Dora" (Freud, Fragment of an Analys ofa Case of Hysteria (1901), in 3
COLLECTED PAPERS 13 (1950)]. See generally the following works of Freud: Studies in Hystera
(1895) (with Breuer), in 2 STANDARD EDITION OF COMPLETE PSYCHOLOGICAL WORKS OF
SIGMUND FREUD (1956); Female Sexuality (1931), in 5 FREUD, COLLECTED PAPERS 252
(1950); Hysterical Phantasies and their Relation to Bisexuahly (1908), in 2 FREUD, COLLECTED
PAPERS 51 (1950). Reich's references to hysteria, but for one of the passive-feminine (male)
cases he develops, are female oriented. REICH, supra, at 158, 165, 191-92, 204-09, 217, 254,
277, 302, 368. See also NEW INTRO. LECTURES, note 244 supra, at 120; READER, note 242
supra, at 207, 219-22.
465. S. FREUD, INTRO., note 400 supra, at 250-51. Compare Hysteria 3/1, note 241 supra,
at e.g., 361, 371; REICH, note 241 supra, at 205.
466. S. FREUD, INTRO., note 400 supra, at 240, 270-71; PsYcH. DICT., note 241 supra, at
272-73; Hysteria 3/1, note 241 supra, at 365-66 and generally.
467
behind them.
These two symptom (or pure) neurotics are the most widely known.
Others have been observed, however, and several have been argued to be,
in general, organizationally distinct.
Two famous psychoanalysts have maintained that there are two or
three distinct, cardinal classes of neurotic (or nonpsychotic) psycho-
pathologies, and that only among those other than the pure (or symptom)
neurotic will there occur demonstrative antisocial or antienvironmental
behavior associated with the psychic disorder. 468 According to these theo-
rists, while the symptoms of the pure neurotic (the hysteric or obsessive)
are ego-alien and autoplastic (or self-affecting), the "traits" of the others
("character-neurotics" and "psychopaths") are ego-syntonic and alloplas-
tic (or environment-addressed). 469 The significance of these theories
would be that the pure (or symptom) neurotic would not generally (or
symptomatically) lie, deceive, or otherwise act anti-socially in ways incon-
sistent with trustworthiness like that attributed to dying declarants. It
appears, however, that these theories do not reflect prevailing analytic
theory and clinical experience.
One other theorist, Robert L. Cristensen, 4 70 gives some credence to
the autoplastic/alloplastic distinction among neurotics, but considers in-
significant the prospect of the purely autoplastic 'symptom' neurotic. Af-
ter seven years of psychiatric practice in the military, Cristensen noted an
increasing rarity of the 'classical' symptom neurotic and hypothesized
47
that a rise in the alloplastic was owed to social change: '
Perhaps the lessening of social restrictions on the expression of sexual
and biological drives is a factor reducing the number of [classical, symp-
tom] psychoneuroses ...
I believe that the primary problem of this century is that of han-
dling aggressive feelings. With more "civilization" has come greater re-
striction of direct personal and individual expression of aggressive
hostility, and also more extensive and destructive warfare. Even here,
however, the personal element is lessened and we often kill our enemies
from a distance, sometimes unable to see them, by devices with far-
reaching effects.
If. . . hostile aggression cannot be expressed directly, it will come out in
other ways. Just as [classical] psychoneuroses and sexual problems were
characteristic of the 19th century, . . . character disorders and problems
of handling aggression seem to be characteristic of the 20th century.
467. S. FREUD, INTRO., note 400 supra, at 251. Compare Hysteria 311, note 241 supra, at
361-62, 366, 771; SHAPIRO, note 241 supra, at 109-17.
468. Franz Alexander and Herman Nunberg, colleagues of Freud.
469. Alexander, The Neurotic Character, note 427 supra; Nunberg, Character and Neurosis,
note 427 supra.
470. CharacterDisorder, note 427 supra.
471. Id at 1600-01. Compare Survey questions 13(b) and 13(c) and Table III, Appendix,
infra, respecting the relative incidences of pure and character neuroses.
Accepting that symptoms and traits have the same origin,4 72 Christensen
distinguished symptoms as personality-related, where "personality" may
be stated in terms such as sad, gay, optimistic, shy, bold, tense, placid,
casual, cautious, meticulous, or pessimistic, while "character" may be put
in terms like honesty, integrity, dependability, consistency, social responsi-
bility, and their opposites. 4 73 "Personality" and "character," however,
are only different sides of the same coin. 4 7 4 Symptoms and neurotic traits
4 75
can coexist, displace one another, or exchange roles or positions.
Symptom neuroses develop into character disorders where chronic stress
requiring stronger defenses moves the essentially self-deprecative neurotic
(repressive or reactive) experience from ego-alien to "ego-syntonic" (ego-
integrated) .476
Wilhelm Reich saw neurosis and character as always coexistent, the
latter as the "reaction basis" or ego-structural foundation of the for-
mer. 4 7 7 Symptoms are exacerbations or concentrated manifestations of
the neurotic character structure, and ingrained symptoms can function as
character traits. 478 As in Christensen's character disorder, in Reich's neu-
rotic character structure symptoms can come and go, be displaced, substi-
tuted, or temporarily take on appearances inconsistent with underlying
character formation. 479 The purey structural aspect of the neurotic charac-
ter is ego-syntonic and largely alloplastic, the character and its traits be-
ing hardened defenses-rigid reactions, resistances, and frozen, unfelt
repressions-that protect the ego against real or remembered external de-
mands. 480 Reich called this aspect "armoring" because it "constitutes a
'48
restriction of the psychic mobility of the personality as a whole." '
Character appears as active resistance whenever external stimuli pierce
weak spots in the character armor and threaten the neurotic ego directly
by touching the core of its instinct repression, reinvoking the feelings or
experiences on which its repressions had been fixed. 48 2 Even absent an
actual external threat, the neurotic character exhibits alloplastic traits-
to ward off anticipatedexternal threats or feared impulses warped and re-
472. Character Disorder, note 427 supra, at 1600-01, 1603.

473. Id at 1597.
474. Id at 1597-98, 1603.
475. Id at 1598-99, 1601, 1603.
476. Id at 1603.
477. See REICH, note 241 supra, at 44-49, 153-60, 169-75, 189-93, 198-203. See also id at
225-67; Briehl, note 431 supra, at 432-34.
481. REICH, note 241 supra, at 155.
482. Compare note 773 supra with REICH, note 241 supra, at 51-53, 167. See also FINE,
note 245 supra, at 114; FREUD, INTRO., note 400 supra, at 104-05, 253-65; NEW INTRO. LEC-
TURES, note 244 supra, at 13-19, 68-69; Survey questions 4-6, 10-12, and 14(a)-14(b), and
related response breakdowns in Tables I(A), I(B), II(A), and 11(B), Appendix, infra.
pressed in infancy vis-h-vis external pressures. 48 3 Thus some sadistic char-

acters exaggerate masculine-aggressive behavior to suppress passive-
feminine strivings, while other characters ward off repressed aggression by
becoming slippery-evasive, and still other, "bristling," garrulous-aggres-
4 4
sive characters relate to the world in paranoid-aggressive reactions.
In his Neurotic Styles (1965), Shapiro observed that all neurotics have
characterologically-set-and-limited modes of thinking, perceiving, subjec-
tively experiencing, and objectively behaving-modes that mature or ex-
pand but do not change after childhood. Differing with Reich only on
some here-irrelevant details of etiology, 4 5 Shapiro saw the neurotic's
"stles" as fundamental, pervasive, permanent filters and organizers of in-
ternal and external stimuli and also as preceding, helping to48 form,
6
and
reflecting symptoms, traits, reactions, and defenses generally.
Christensen, Reich and Shapiro would not separate pure and charac-
ter neurosis, but would see a reciprocal causal relation between neurotic
character and symptoms. The trend of psychoanalytic and related
thought would appear to accord. 4 7 If Shapiro and Reich are correct, all
483. See, e.g., REICH, note 241 supra, at 167-76 and Survey questions 6(a)-6(b) and re-
lated response breakdowns in Tables I(A) and I(B), Appendix, infta.
484. REICH, note 241 supra, at 174-75. See also id at 204-05, 217-23. See general SHA-
PIRO, note 241 supra at 23-175.
485. See SHAPIRO, note 241 supra, at 1-22, 176-99 (especially 7-15, 196-98). To some
extent the difference arises from a difference in interest or emphasis--Reich on therapeutic
significance of character, Shapiro on broader implications. See id. at 198-99. Compare
REICH, note 241 supra, at 3-149 and Briehl, note 431 supra, at 430-34.
486. See SHAPIRO, note 241 supra, at 1-22, 176-99.
487. The arguments of Nunberg and Alexander notwithstanding, Reich's views are ra-
tional outgrowths of Freud's on resistance and character. Compare REICH, note 241 supra, at
70, 84, 153-54, 170-93, with NEW INTRO. LECTURES, note 244 supra, at 64, 90-91, 100, 102,
103, 125, 129-30, S. FREUD, INTRO., note 400 supra, at 253-65, and Freud, Character and Anal
Eroticism, 2 COLLECTED PAPERS 45 (1950). See also SHAPIRO, note 241 supra, at 1-22; Charac-
ter and Neurosi, note 427 supra, at 41-43 [paraphrasing (though also interpolating) Freud's
untranslated work Some Character Types Met With in Psychoanalytic Work (1916)]; FINE, note
245 supra, at 14-15, 64-65, 68-70. In his General Introduction to Psychoanaystr, Freud said: "We
know that a symptom is a substitute for some other process which was held back by repres-
sion . . . . What kind of mental excitations suffer repression? What forces affect it? . . .
While investigating the problem of resistance we learned that the forces behind it [repres-
sion] proceed from the ego,from character-traits, recognizable or latent .. " S. FREUD, INTRO.,
supra at 262 (emphasis added). In Character and Neurosis, supra, at 44, Nunberg observes that
in psychotherapy character sometimes appears as resistance. There is recognized a clear line
from Freud, though Ferenczi, Jones, and Abraham (colleagues Freud much respected), to
Reich, on the development of character analysis and character structure. Compare Briehl,
note 431 supra, at 430-35, and READER, note 242 supra, at 127-28, with REICH, supra, at 3, 12,
31, 153-54, 170, 206. Though traditional psychoanalysts may view his post-character-ana-
lytic biophysical works skeptically, most psychoanalysts would agree that Reich's charac-
ter-analytic and earlier psychoanalytic works have a "significance" that "can hardly be
over-rated." READER, supra, at 127-28. Compare Briehl, supra, and PSYCH. DICT., note 241
supra, at 609-10, with FINE, supra, at 69 and SHAPIRO, supra. Fine's criticism (FINE, supra)
that Reich's character analysis was too schematic does not detract from his admission that
Reich's CHARACTER ANALYSIS was a "milestone" in clinically-based understanding of char-
neurotics must be capable of demonstrative, aggressive, or otherwise al-

loplastic or antisocial behavior. 48 8 That is, every neurotic is capable of
translating frustration of his infantile impulses into "bad" behavior or
alloplastically expressing his infantile perversions (directly or by "conden-
sation" or "displacement"). Such acting out could involve prevarications,
distortion, aggressive-defensive amnesia, false accusation, or more subtle
489
deceptions like apparent angelic silence in the face of a false suggestion.
Even if Freud's symptom neurotic and the character neurotic are no-
sologically or organizationally distinct, as a practical matter the situation
is the same. Freud's symptom neurotics-the hysteric and the obsessive-
are quite capable of pathological distortion either in perception or in
communication. 49 0 Moreover, the hysteric, typically, and the obsessive,
under doubt-inducing stress, are highly suggestible. 49 1 Arguably the ob-
sessive whose ego-defenses and reaction formations have deteriorated is
capable of sociopathic behavior.
Christensen, Shapiro, Reich, and, arguably, Freud, would agree that
any neurotic type is capable of drastic changes in behavior-according to
circumstances and the degree of character flexibility or armor depth,
strength, inelasticity, and expanse. 492 The key would seem to be the in-
acter as a function of libidinal development. Fine's preference for the views of Erikson (a
leading American "ego-psychologist," id at 93) has little or no relevant impact. The differ-
ences between Erikson and Reich do not relate to the question whether character is the basis
of neurotic symptoms, a question Erikson would answer fundamentally in line with Reich.
See generally Identity, supra note 427. The reconcilability of Reich and Erikson, and the gen-
eral acceptance of Reich's characterology among American analytic therapists is supported
by my survey [see Survey questions 1(a)-I (b), 2(a)-2(c), and 3, and breakdowns of responses
to those questions analyzed in Tables I(A), I(B), and 11(B), Appendix, in/ia], as well as by
Briehl, supra, PSYCH. Dic-r., supra, SHAPIRO, supra, and READER, supra. There is also general
recognition (see READER, PSYCH. DIcT., and Briehl, supra) that much improvement in psy-
choanalytic effectiveness is attributable to Reich's character-analytic technique, the effec-
tiveness of which is considerable support for his characterological theory-especially because
of its extensive clinical basis. See also note 485 supra.
488. Compare notes 450-53, 470-84 and related text supra and REICH, note 241 supra, at
72-77, 88-111, 154-55, 169-71, 194-203, 209-10, 212-16, 217-24, 237-50 with notes 530-34 and
related text in/a. See also Farber, The Anal Character and Political Aggression, 51 J. ABNORMAL
PSYCH. 486-89 (1955).
489. Compare notes 465-67, 488 and related text supra and notes 510-29 ifra with REICH,
note 241 supra, at 128-37 and Appendix, Survey questions 3-7, 9-12 and Tables I(A)-II(B)
infta. See also notes 239-71 and related text supra. The reader should note that responses to
my survey tend to suggest that the sorts of patient-reactions Reich describes as resistance in
therapy may well occur under extrapsycho-therapeutic conditions---especially stress situa-
tions. Thus the false accusations of some Reich patients might occur in the "normal" life of
such patients---outside the psychiatrist's office and unrelated to doctor or therapy. Compare
NEW INTRO. LECTURES, note 244 supra, at 77, and FINE, note 245 supra, at 114.
490. See notes 461-67 and related text supra; note 501 and related text infra. See also
notes 540-45 infia.
491. Compare notes 470-88 and related text supra note 519 and related text infra and note
266 and related text supra.
492. Compare REICH, note 241 supra, at 42-49, 153-93, 204-24, 227-38, 255-57 and notes
470-76 and related text supra with note 395 supra, SHAPIRO, note 241 supra, and Character and
tensity of ego stress or free (not character-bound) anxiety. 493 Can there
be such a key in an imminently fatal wound inflicted in horrendous cir-
cumstances like those typical 494 of dying declarations cases?
Psychoanalytic and character-analytic schools hold that differences
among functional psycho-pathologies are matters of degree of ability to
handle unconscious impulses. 495 Psychiatrists and analysts recognize that
traumatic physical experiences can make manifest a latent psychotic con-
stitution. 4 96 They also recognize "traumatic" neurosis (e.g., "shell-
shock"). Freud observed as early as 1916497 that traumatic and ordinary
neuroses both involve fixation upon a psychically critical trauma. 498 In
ordinary neuroses the fixation is on a point in early childhood, while in
traumatic neuroses it is apparently on the moment of the trauma irrespec-
499 50 0
tive of its timing. Otherwise, however, similarities abound:
These patients regularly produce the traumatic situation in their
dreams; in cases showing attacks of an hysterical type in which analysis is
possible, it appears that the attack constitutes a complete reproduction of this
sttuation. It is as though these persons had not yet been able to deal adequately
with this situation, as if this task were still actually before them unaccom-
plihed. . . . The term "traumatic" has actually no other meaning but [an/ eco-
nomic one. An experience which we call traumatic is one which within a very
short. . . time subjects the mind to such a ver high increase of stimulation that
assimilahon or elaboration ofit can no longer be efcted by normal means, so that
lasting disturbances must result in the distribution of the available energy in the
mind.
But does the traumatic neurosis arise in a characterological vacuum, or is
it an exacerbation of a previously unnoticed neurotic infrastructure or
reaction basis?
In a case around which Freud did extensive theorizing, a "lady of
50
nearly thirty years . . . suffered . . . obsessive symptoms:"
Neurosis, note 427 supra, at 36-38, 41-44. But see also Marconi, Oyarzun, Solari, and Munoz,
note 241 supra, at 315, 320-23, suggesting that while the hysteric is a role-changer, she is not
clearly more so than other abnormal types.
494. See notes 290-91 supra.
495. See note 492 supra; notes 536-37 tnfia. See also notes 496-518, 540-62 and related
text ifira.
496. See notes 405, 409, 411-12, 426, 495 and related text supra. To the extent psychoses
may be genetic or genetics may play a part in them [compare, e.g., PINCUS & TUCKER, BE-
HAVIORAL NEUROLOGY 224 (2d ed. 1978) with REICH, note 241 supra, at 88, and note 423
supra], this possibility seems greater. Compare Hysterta 3/1, note 241 supra, at 360-61, 362-64,
366-67, 370-71.
497. S. FREUD, INTRO., note 400 supra, at 243 (originally published 1916).
498. Id at 244. Compare SHAPIRo, note 241 supra, at 1-15, 176-99, suggesting ongoing
bases for symptoms or symptom exacerbation.
499. S. FREUD, INTRO., note 400 supra, at 242-44. Compare SHAPIRO, note 241 supra, as
cited supra note 498.
500. S. FREUD, INTRO., note 400 supra, at 243. (emphasis added in substantial part).
501. Id at 231-33. (emphasis added).
In the course of a day she would perform the following peculiar

obsessive act, among others, several times over. She would run out of her
room into the adjoining one, there take up a certain position at the table
in the centre of the room, ring for her maid, give her a trivial order or
send her away without, and then run back again. . . . More than ten
years previously she had married a man very much older than herself,
who had proved impotent on the wedding-night. Innumerable times on
that night he had run out of his room into hers in order to make the
attempt, but had failed every time. In the morning he said angrily: "It's
enough to disgrace one in the eyes of the maid who does the beds," and
seizing a bottle of red ink, poured it on the sheet, but not exactly in the
place where such a mark might have been. . . . The patient then led me
to the table in the adjoining room, where I found a great red mark on
the table-cover. [In Freud's day even psychiatrists made house calls!]
She explained . . . that she stood by the table [during the obsessive act
described above] in such a way that when the maid came in she could
not miss seeing the mark. After this, there could no longer be any doubt
about the connection between the current obsessive act and the scene of
the wedding-night ....
It was clear. . . that the patient identified herself with her husband
• . . [acting] his part . . .. [S]he has substituted the table and table
cover for the bed and sheet. . . . In dreams a table is very often found
to represent a bed. "Bed and board" together mean marriage, so that
the one easily stands for the other.
. . . The kernel [of the act] evidently lies in the calling of the maid, in
contrast to her husband's words: "It's enough to disgrace one before the
servant." [S]he has not simply repeated the scene, she has continued it and
corrected it, transformed it into what it ought to have been. This implies some-
thing else. . . a correction of the circumstance which made that night so
distressing and . . . made the red ink necessary: namely, the husband's
impotence. The obsessive act thus says: "No, it is not true, he was not
disgraced before the servant, he was not impotent." As in a dream she
represents this wish as fulfilled ...
50 2
Freud found this woman's problem analogous to "traumatic" neuroses.
The wedding-night trauma was so significant that it must have "shaken
50 3
the whole structure" of her life. Yet her obsessions went beyond com-
pensating for or responding to the wedding-night trauma. The "table"
ritual was only one "among others." Why did the patient go beyond her
rational reaction to her marriage disappointment-her separation from
5 04
her husband and inclination to divorce him -beyond, z.e., into a mor-
bid withdrawal from the world, a seething ambivalence respecting di-
vorce, and, finally, a symptom-life of fantasies idealizing her husband, of
delusions of gossip, and of obsessions associated with neurotic socio-sexual
distress? 50 5
Why did she suffer neurotic repression, partial amnesia-re-
502. Id at 243-46. See id at 232-33. Compare SHAPIRO, note 241 supra, as cited in note
498 supra.
503. S. FREUD, INTRO., note 400 supra, at 244. See id at 232-33.
504. Id at 233.
505. Id
50 6
specting the wedding-night and the meaning of the "table" obsession?
Her marriage should have been the final resolution of the genital strivings
arising v's-eh-vzs her childhood relations with her parents-her Oedipal
strivings. 50 7 It was not, but she did not seek another resolution; she de-
nied reality, idealized her absent, failing husband, and sought resolution
through symptoms. 50 8 The failure must have been in her ego structure,
her character, as well as in her husband and her circumstances; for why
did she marry a man so old-in times where old age more often than not
implied impotence-if not because her own psychosexuality was funda-
mentally incomplete and repressed? As Freud suggested about this and
similar patients, the forces behind her symptoms proceeded from her neu-
rotic ego, "from character-traits,recognizable or latent." 50 9
What, then, of the relation of a traumatic moribundity and a latently
obsessive-oriented character, style, or reaction basis? The armoring of a
latent obsessive, a compulsive character, 5 10 like that of any other neurotic,
is at bottom an organized longing-disappointment. 5 I I The residue of in-
fantile unfulfillments, suppressions, or rejections and associated longings
feed each other, precluding resolution, and finding new energy also in the
506. Id. at 231-33.

507. Compare NEW INTRO. LECTURES, note 244 supra, at 112-35 and READER, note 242
supra, at 192-287 and "ONTOGENETIC TABLE," with REICH, supra note 241, at 153-93.
See also Identity, note 427 supra, at 95-100, 119-26, 165-66.
508. S. FREUD, INTRO., note 400 supra, at 262-63.
509. See id.at 262-63. See also id.at 231-34, 332. Freud suggests the traumatic neurosis
depended on a pre-existing neurotic disposition: "She had to be faithful to him [her hus-
band]; she could not put any one else in his place ...This symptom is fundamentally a wish
fulfillment." Id.at 262-63. In Freudian terminalogy "wish" and "wish fulfillment" denote
"primary process"-unconscious impulse and unconscious impulse fulfillment. FINE, note
245 supra, at 35-54. Neurotics (e.g., obsessives) fulfill wishes and defend against unbearable
ones with compulsive attitudes and behavior-obsessive conscious process. E.g., S. FREUD,
INTRO., supra, at 228-30, 261-63. Freud also observed:
In persons who are disposed to be neurotic without having yet developed a neurosis
on a grand scale, some morbid organic condition-perhaps an inflammation, or an
injury-very commonly sets the work of symptom-formation in motion; so that the
latter process swi4y seizes upon the symptom supplied by reality, and uses it to
represent those unconscious phantastes that have only been lying in wat'for some means
of expression.
S. FREUD, INTRO., supra, at 340 (emphasis added). Compare SHAPIRO, note 241 supra, at 54,
suggesting degrees of severity of paranoid styles-not only psychotic, but also neurotic in
vaqting degrees-"modulated in a great many ways by other factors and tendencies." See also
id at 1-22, 176-99. Paranoid styles involve reading into events matters that are not present
or overanalysing so as to distort reality-as well as delusions and hallucinations (especially
auditory).
510. Compare NEW INTRO. LECTURES, note 244 supra, at 102, S. FREUD, INTRO., note
400 supra, at 228-30, 242-44, 261-63 and Characterand Neurosis, note 427 supra, at 37, 41-42
with REICH, note 241 supra, at 153-68, 176-93, 209-17 andSHAPIRO, note 241 supra, at 1-15,
23-53, 176-79, re: relation of Freud's obsessive neurotic and the compulsive character.
511. See REICH, note 241 supra, at 153-68, 176-93, 209-17; Characterand Neuroszs, note 427
supra, at 36-37, 38-39, 41-42, 44. For a consistent but broader view, see SHAPIRO, note 241
supra, at 1-15, 23-53, 176-99.
character's mode of reaction to external stimuli-stimuli the character

may be programmed to seek or generate and a reaction mode to which it
is inexorably committed. 51 2 The character is likely to exaggerate its traits
or develop related symptoms as external stimuli exacerbate the unfulfill-
ment and longing. What greater exacerbation than a physical trauma-
autoplastically induced or not-- - -5 13 that threatens imminent death; what
greater barrier to psychosexual fulfillment or greater suppression or rejec-
tion 51 4 (even by the ultimate father, parent, ego ideal, or superego-sym-
bol--God5 1 5 )? The obsessive typically is morbidly preoccupied with
death. 5 16 Such morbid preoccupations have been known to lead to dis-
tortions, frenzies, and even delusions and hallucinations. 5t 7 Would not
traumatic moribundity be a perfect condition for the outbreak of the am-
512. See REICH, note 241 supra, at 153-76, 185-93; S. FREUD, INTRO., note 400 supra, at
332; NEW INTRO. LECTURES, note 244 supra, at 90-91, 102. Compare SHAPIRO, note 241
supra, at 1-15, 23-53, 176-99.
513. Compare REICH, note 241 supra, at 123-24, 170, 279 and note 399 supra with Character
and Neurosis, note 427 supra, at 36-38, 41-44. See generall Freud, Beyond the Pleasure Principle
(1920), in 18 STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF
SIGMUND FREUD 7-64 (1955). But see also W. REICH, supra, at 225-36, 270-79; 3 JONES, THE
LIFE AND WORK OF SIGMUND FREUD 272-80 (1957); Hartmann, Kris, & Loewenstein, Notes
on the Theog ofAggression, in 3-4 PSYCHOANALYTIC STUDY OF THE CHILD 9-36 (1949); Kapp,
Comments on Bernfeld and Fetleberg's 'The Principle of Entropy and the Death Instinct,' 12 INT. J.
PSYCHANAL. 22 (1931). See generally LAPLANCHE, LIFE AND DEATH IN PSYCHOANLYSIS
(1976).
514. Consider, for example, the obsessive or compulsive neurotic. He lives under a tyr-
anny of thoughts and fantasies and a preoccupation with death. FINE, note 245 supra, at
113-14. He is involved with mystical or magical ideas. Id. at 114, 135-38, 142, 145, 146. His
obsessive thoughts and compulsive acts are reflections of reaction formations or counter-
cathexes-avoidances of unbearable ideas, even criminal or horribly perverse ideas, oppres-
sion-produced avoidances paralleling repression. Compare id at 113-14 and NEW INTRO.
LECTURES, note 244 supra, at 90-91, 102 with REICH, note 241 supra, at 153-93, 209-17, 270-
79 (especially 179, 185-93, 209-17, 278-79), FINE, supra, at 135-38, 142, 145, 146 and S.
FREUD, INTRO., note 400 supra, at 229-30, 241-48, 261-65. The child's sexual or libidinal
growth thwarted, his substitute fantasies repressed vis-h-vir parental environment and super-
ego, the man becomes mired in obsessive/compulsive traits or symptoms-including reli-
gious and death obsession-describable as distortions of the "morality" that drove him to
repression. As he grows older, doubts begin to pick at his wall of reaction and symptoms;
death and religion become more voracious among his thoughts. Behind this? Seething ha-
treds and aggessions, unthinkable sexual thoughts and criminal ideas. And what if death is
a reality-is it the ultimate repression, or release at last? Will his inner hatreds, wishes, and
ideas burst out of him uncontrollably? Why prolong the reactions and the fears-why not
give full vent to the cause of the gnawing doubts? See also note 461 and related text supra;
notes 558-65, 582-625 and related text infra.
515. Compare REICH, note 241 supra, at 88-120 (re: effect of father and relation to super-
ego, repression, and resistance), id at 155-60 (relation to character), id at 179-80 (structure
of superego), and id at 194-98 (father, superego, Oedipus complex, repression, resistance)
with FINE, note 245 supra, at 183-85 and notes 558-65, 582-625 infra. See also note 514 supra.
516. Compare note 461 and related text supra with FINE, note 245 supra, at 113-14 and
REICH, note 241 supra, at 270-79 (especially 270-71, 277-79). See also note 246 supra (re: the
nonrestriction to masochistic characters of these feelings); REICH, supra, at 192 (same).
517. Compare, e.g., Leveton, in Scor & BREWER, as cited in note 246, supra, with WEIS-
MAN, as cited in note 246, supra, and notes 558-65 and related text infra.
nesias, distortions, and doubts or ambivalences of a latent obsessive-com-

pulsive? How could one rely on his perception of his circumstances or his
word? How could a lay witness to his declarations know the extent of his
rationality under such circumstances as would preclude even an exper-
ienced analyst from doing so? 5 18 If his character's morbidity had been
latent, who would know to look for it?
These problems are not limited to classical or latent neurotics or to
the obsessive or compulsive character. The hysterical disposition is de-
fined by ambiguity, convenient amnesias, hypersuggestibility, fickleness,
51 9
selfishness, self-willedness, egocentricity, and flights into fantastic ideas.
Insincere verbal fluency, shallow affect, unfounded histrionic complaints,
irascibility, explosiveness, and passive aggressiveness are typical modes of
hysterical/passive-feminine resistance to an adverse reality of character-
threatening stimuli. 520 Responses to my survey, and other sources, indi-
cate that the physiological shock of trauma-caused moribundity may ex-
acerbate these reliability-impairing traits. 52 ' The traumatic shock of fatal
injury would seem not unlikely to be a symptom-inducing or character
disintegrative influence on any neurotic. 522 Another example is the maso-
chistic character. This neurotic fantasizes (or even induces) hardship or
pain to ward off greater threats; but stressed sufficiently, he reacts (or
resists) with often bizarre, infantile aggression or sadism. 523 Though he
appears guilt-ridden and self-effacing, during resistance he can be sadistic,
the "guilt" being only an infantile defense, not conscience. 524 If he
thought himself moribund, he might see no greater threat to avoid with
self-denial. Why would he not then wax sadistic or vindictive? Not dis-
similar observations can be made about, e.g., the "phallic narcissist" and
"psychopathic" characters. The phallic narcissist is often arrogant, or
"contemptuously aggressive," and even in everyday life will usually antic-
518. See generally Part III.B.I(b) infa. See also SHAPIRO, note 241 supra, at 47-52, 198-99.
519. Compare REICH, note 241 supra, at 204-07, PSYCH. DICT., note 241 supra, at 94, 272-
73, and Hysteria311, note 241 supra, at 367-68 with S. FREUD, INTRO., note 400, supra, as cited
in notes 465-67 supra, FINE, note 245 supra, as cited supra note 266, and SHAPIRO, note 241
supra, at 108-24. See also Miller & Chotlos, note 242 supra, at 320-23; Neurotic Character,note
427 supra, at 295.
520. REICH, note 241 supra, at 204-07; Hysteria 311, note 241 supra, at 367-68. See also
REICH, supra, at 88-120; SHAPIRO, note 241 supra, at 124-33. See also SHAPIRO, supra, at 133-
75.
521. See Survey questions 11(d), 12 and Tables II(A)-II(B), Appendix, infia; note 262,
supra. See also Survey questions 6(a)-6(b), 10(a)-10(b), 11(e) and Tables I(A)-II(A), Appen-
dix, in/fa.
522. See WEIL, note 155 supra, at 251, 257; Schumer, note 155 supra; Survey questions
6(a)-6(b), 10(a)-I l(e) and Tables I(A)-II(A), Appendix, infia. See also HARRISON, note 155
supra, at 224, 1772-73; notes 540-46, 556-62 and related text infa.
523. See REICH, note 241 supra, at 237-55.
524. See id
ipate an attack, real or not, with an attack of his own. 525 If his vanity is
offended (easily accomplished) he reacts with cold disdain, ill-humor, or
"downright aggression. ''526 He is pugnacious, and accounts for most
forms of moral insanity, paranoia, and sadistic perversion, and, wishing
revenge on his opposite-sex parent, treats heterosexual lovers or even any
member of the opposite sex degradingly, aggressively, or sadistically.52 7
He is both genius and criminal, and in paranoid-tendingcases may suffer
delusions. 528 It is not difficult to imagine a phallic-narcissist dying-de-
clarant falsely accusing a lover or parent or someone who has greatly of-
fended his vanity. If he could be a Mussolini, or Napoleon--criminal,
genius, or both- 529 would he not take such revenge, and accomplish it
convincingly? The psychopath or sociopath is difficult to classify. He is
neurotic insofar as he suffers the psychic immobility that a characterologi-
cal reaction basis involves. 530 Much like the psychotic, he does not per-
ceive his alloplasticity as morbid but revels in unmodified id
gratification. 53 ' Unlike the psychotic, but like the asymptomatic charac-
ter neurotic, he has strong ego-organization integrated with his reaction
basis or trait structure and a consistent, apparently rational behavior pat-
tern. 532 Though perhaps a relatively uncommon morbid character, he
may well have a high propensity to behavior and involvements that could
lead him to a homicidal demise. 533 It is difficult to expect he would be a
525. Id at 217-18.
526. Id at 218.
527. Id at 219-22.
528. Id at 222-23.
529. Id.at 223.
530. Compare ENCYC., note 400 supra, at 347-51 with REICH, note 241 supra, at 223. See
also PsycH. DicT., note 241 supra, at 444-45; ENCYC., supra at 354 (PSYCHOTIC CHAR-
ACTER). SHAPIRO, note 241 supra, at 157-68 indicates that the psychopath, either neurotic
or psychotic or both, is an impulsive-style variant.
531. Compare ENCYC., note 400 supra, at 347-51, 354 and REICH, note 241 supra, at 170,
217-23 with Neurotic Character, note 427 supra, at 297-308 (especially 304-08), Character and
Neurosis, note 427 supra, at 41-44. SHAPIRO, note 241 supra, at 157-68, and Character Dzsorder,
note 427 supra, at 1600-01.
533. It may not be so much that the character is uncommon, as that it is not commonly
detected, because its manifestations are'not always as horrid as the stereotype would indi-
cate. See authorities cited in note 531, supra, somewhat implying that it is not the degree of
harmfulness but the nonempathetic, socially-indifferent, ego-syntonic, guiltlessly-perverse
antisocial quality of his behavior that distinguishes the psychopath (or sociopath, as he is
more frequently called today). Alexander (supra notes 468-69) might add that the psycho-
path is not merely alloplastic (like the neurotic character), but, being of organized ego yet
practically without ego defense mechanisms (repression, reaction formation, etc.), generally
engages in uninhibited impulse-gratification. Alexander would distinguish the psychotic as
manifesting impulse-gratification autoplastically and having poor ego organization, the neu-
rotic character as experiencing disguised impulse-gratification, and the pure neurotic (trans-
ference neurotic) as autoplastically displacing impulses and achieving only substitute
gratification of a well-defended (albeit less than strongly organized) ego. Neurotic Character,
supra note 427, at 306 (chart). But see id at 305 (sadist and masochist) and note that Reich,
reliable dying declarant: aggressive, guiltlessly antisocial, he is a "glib" or

534
"fluent" liar.
Contrary to the suggestion of Wigmore and other dying declaration
rule proponents, the question as to all neurotic characters as dying declar-
ants is not what they have to gain by lying, but what they have to lose by
not being truthful. As indicated above, my survey suggests that between
32% and 46% of Americans are "character neurotic" and between 18%
and 26% "pure" neurotic, so that between 50% and 72% may be neurotic
in some way. 535 Since it is not known whether survey respondents put
psychopaths in the character neurotic category, it is not known whether
the character neurotic and combined percentages should be higher. Since
normal and neurotic individuals may be different only in degree, 536 and
since many apparently normal people may suffer latent or covert neuroses
capable of being brought out by a special trauma, 53 7 it is further possible
that the 50-72% estimate is conservative. In any event, it seems a good
probability that any dying declarant may be an unreliable neurotic.
(3) Integration
My nation-wide poll of psychiatrists suggests that between 55% and
80% of Americans suffer some severe chronic psychic disturbance. There
are indications that these estimates may be conservative. Irrespective of
probably Christensen, and, somewhat, Nunberg, would say that some of Alexander's distinc-
tions were unreal or clinically contraindicated. See notes 470-84 and related text supra. As
to the homicide-suicide matter, compare note 531 supra with KASTENBACH & AISENBERG, note
246 supra, at 252-361.
534. See SHAPIRO, note 241 supra, at 157-68. Compare other authorities cited in note 531
supra.
535. "Pure" neurotic was intended to denote Freud's "transference" or "symptom" neu-
rotic-classic obsessive or hysteric. While there is no way to know the extent to which re-
spondents agreed on terminology for purposes of the survey, it can be assumed that all
contemplated some sort of chronically abnormal psychology other than the now-discredited
"actual neurosis" (denoting nervousness devoid of psychic phenomena, ENCYC., note 400
supra, at 14-15). See also notes 392-94, 446 and related text supra.
536. See FINE, note 245 supra, at 106, 110-11. See also notes 540-46 and related text thfra;
REICH, note 241 supra, at 217-24 (indicating that at least the phallic-narcistic character can
seem so close to healthy that it is hard to distinguish him from the healthy or "genital"
character); Characterand Neurosis, note 427 supra, at 42 (describing Freud's classifications of
erotic-narcistic and narcistic-compulsive characters, which Nunberg adopted); id. at 44
(calling character traits better ego-assimilated than symptoms); Neurotic Character, note 427
at 308 (saying the expansive force of the character neurotic's impulse-life brings him closer
to the healthy individual than to the pure neurotic). The behaviorist view suggests that
there is only a difference in conditioning between healthy and neurotic individuals. Seegener-
ally authorities cited in note 428 supra.
537. See notes 495-517, 536 and related text supra. Nunberg (Neurotic Character, supra
note 427, at 44) theorizes that the neurotic character can degenerate into a symptom neu-
rotic; and REICH, note 241 supra, and Christensen (Character Disorder), note 427 supra, see
neurotic symptoms as concentrated manifestations, exacerbations, or displacements of char-
acter traits or reaction bases (see notes 471-84 and related text supra). Now reconsider S.
FREUD, INTRO., note 400 supra, as quoted note 509 supra.
the relation among the dying declaration rule, 'eligion, and the various
psychopathologies, these estimates contraindicate the presumption that
dying declarants are trustworthy. There is reason for substantial doubt as
to the reliability of the perceptions and communications of a neurotic or
psychotic who understands that he has suffered an imminently fatal
trauma. There is also reason to doubt his rational apprehension of his
moribundity,5 38 an apprehension whose absence precludes application of
the dying declaration rule, but whose presence seems often to be pre-
sumed upon the fact of moribundity. 539 Alone, these considerations point
strongly to the invalidity of the dying declaration rule.
(b) Normal Psycho-pathology/Unreliability

Freud developed this matter in his famous Pschopathology of Everyday
Ltf, 540 where he analyzed the notorious "Freudian slip." There he stud-
ied many cases of memory loss, word or memory substitution, distortion of
speech, act, or intent, thought or language disorganization, and memory
concealment. Consistently, the cause of the lapse, slip, warping, or other
form of the various "parapraxes" was a painful or fearful, unconscious
disturbance-not merely time-pressure, linguistic negligence, or other su-
perficial, benign phenomena. 54 1 There was only a difference in degree
between psychotic disintegration or neurotic repression, resistance, or re-
action and the mental disturbances that caused parapraxes in the appar-
ently normal individuals involved. 542 Thus, few, if any, errors would not
be at least mildly psychopathogenic. 543 Often they would be related to
some weakness in psychosexual development. 544 Seemingly always they
545
would be endogenously stimulated.
Freud's theory of parapraxes implies that the statements of an appar-
538. The hebephrenic, for example, tends to be so dissociated that he may show appar-
ent humor in the face of terrible news. Cfthe hysteric's flight from the reality of her circum-
stances, the obsessive's doubt and tyranny of thought, and the dying patient's denial of his
condition (WEISMAN, note 426 supra, as cited there, and KUBLER-ROss, note 426 supra, as
cited there).
539. See, e.g., Connor, note 221 supra.
540. S. FREUD, PSYCHOPATHOLOGY OF EVERYDAY LIFE (1905, in THE BASIC WRIT-
INGS OF SIGMUND FREUD (Brill ed. 1938) [hereinafter EVERYDAY LIFE].
541. See generally id. at 35-46, 62-86, 104-09, 111, 113-27, 129-30, 137-38, 141, 144-45,
162-66, 169-70, 173-78.
542. See id. at 37, 39, 40, 41, 44-45, 46, 60-61, 69, 102-04, 109-10, 115-16, 117, 123-24,
129-30, 141, 144-45, 162-66, 169-70, and 173-78.
543. See note 542 supra. See also EVERYDAY LIFE, note 540 supra, at 66-67.
544. See id at 37, 46-47, 52-53, 66-67, 88, 107. The relation among sexual repressions,
"lapses," and "symptomatic actions" involving idea-avoidance is, as indicated variously in
the text above, clearer as the individual is less healthy or more neurotic. See, e.g., notes 461-
67, 506 and related text supra. ee also S. FREUD, INTRO., note 400 supra, at 251.
545. See notes 541-42 supra. By "endogenously stimulated" the author means produced
by repression or reaction supplied initially by internal mechanisms. Compare, e.g., EVERY-
DAY LIFE, note 540 supra, at 73.
ently nonpsychopathological dying declarant are as likely to be unreliable

manifestations of endogenous unconscious disturbances (related or not to
his fatal trauma) as they are to be accurate descriptions of the cause(s) or
circumstance(s) of his moribundity. This is so not only because the cir-
546
cumstances of most homicides are likely to be hyperbolically disturbing
to any psyche, but also (as will appear below) because of the tendency of
dying people to collect critical wishes, fears, and memories around the
denial and anger of dying.
In the December 1974 issue of Scienliftc American, Robert Buckhout's
article on eyewitness evidence devastates the "19th-century" view that
there is a "parallel" between mechanisms like cameras and the human
brain. 54 7 Human perception, memory, and psychology are too complex,
man being an active, constructive observer-perceiving, remembering, re-
porting, or asserting under the influences of varying abilities, back-
grounds, attitudes, motives, beliefs, and environments. 54 8 Studies
indicate that a major source of witness unreliability is the variable signifi-
cance of witnessed situations. This is common where a witness is pressed
in an important setting to recall detailed data to which the witness did
5 49
not attribute significance when he witnessed them.
In his moribundity the dying declarant is solemnly pressed to recall
the history of his injury. But while many, legally significant circum-
stances are taking him toward moribundity-at the moments of their
happenings-he may not appreciate them enough to try to catalogue
them accurately. When, eventually, their significance is impressed on
him, he may close gaps in his perception or memory with fictitious mate-
rial, at least to the extent his memory is operating normally.
As Buckhout and others, as early as 1895 and as late as 1974, have
experimentally demonstrated, people believing it is important to remem-
ber past events clearly or completely will invent facts or significance,
while forgetting or misremembering facts that did occur, in order to be
conscientious or to appear credible. 550 This tendency is exacerbated in
criminal investigation situations, where, as the proceedings move closer to
conclusion and increase in importance, witnesses' memories become more
546. That is, most homicides are violent in ways that would tend to produce physiologi-
cal causes for dissociations-in a victim living long enough to utter a dying declaration.
Compare note 290 supra wih, e.g., note 426 supra.
547. Buckhout, Eyewtness Testtmony, Vol. 231, #6 SCIENTIFIC AMERICAN 23 (Dec.
1974) [hereinafter Buckhout]. Cf Stewart, Perception, Memory, and Hearsay. A Critiism of Pres-
ent Law and the ProposedFederalRules ofEvidence, 1970 UTAH L. REv. 1-3, 8-27 (1970) [herein-
after Stewart] (development of empirical data to support thesis that in certain cases where
declarant is available his hearsay should not be used but his testimony required).
548. See Buckhout, note 547 supra, at 23-24.
549. See id at 24. See also Stewart, note 547 supra, at 10-19.
550. See Buckhout, supra note 547, at 24-25; Stewart, note 547 supra, at 8-21.
and more "unambiguous" and more and more plausibly full. 551 This ten-
dency has been attributed to social conformity, endogenous suggestibility,
ingrained biases, and the influence of mass media and phenomena; and a
particular witness's testimony may result from his thinking that the au-
thorities would not have accused a suspect without cause or that the an-
swer his leading questioner implies must be prudent. 552 Experimental
demonstrations in this area have been remarkable.
In a Harvard study, 553 subjects were asked to look briefly at a draw-
ing of several people on a subway car, one of whom was a black man
seated and another a white man standing and holding a razor. Half of
the subjects later said that the black man was holding a razor. In another
study, 554 a man dressed as a workman entered a classroom, passed by the
front of the teacher's desk, examined a radiator, asked something about
heat, and then exited without incident. The teacher made nothing of the
occurrence. Sixteen days afterward, the workman returned to the class,
accompanied by five others of like dress and description. Of ninety-four
students who had seen the initial occurrence, thirty, who had had experi-
ence with surprise tests, were 77% accurate in identifying the man from
that previous occurrence, while sixty-four, who had not previously had
surprise tests, were 66% accurate. Of sixteen students, shown a line-up of
men not including the actual workman, 63% identified the wrong man,
only four admitting that the right one was not in the line-up. Of seven-
teen students, who had had no previous surprise testing but who had not
seen the occurrence, all responded as though they had seen the occur-
rence.
Vanity or identity weakness may also lead to misreporting and
fabrication. Buckhout reports a journalist's having distributed in wireser-
vices a false story about a naked woman stuck to a toilet seat in a small
town. When questioned later about the story, townspeople claimed to
555
have witnessed and even to have participated in the bogus event.
The special biophysical, psychological, and environmental problems
of stress make crime victims particularly unreliable witnesses. Buckhout
556
observed:
fF.1leeting g/impses are common in eewitness accounts,pariularly in fast-mov-
ing threatening situations...
Less than ideal conditions isually appy; crimes seldom occur in a well controlled
laboratory. Often distance,poor lighting,fast movement or the presence of a crowd
interferes with the efficient working of the attention process. Wel/-estab-
551. Buckhout, note 547 supra, at 27.

552. See generally id; Stewart, note 547 supra, at 8-21.
553. See Buckhout, note 547 supra, (reporting a Gordan Alport experiment).
554. See Stewart, note 547 supra, at 15 (commenting on a study by Brown).
555. Buckhout, supra note 547, at 26.
556. Id. at 25 (emphasis added). Reprinted by permission.
lished thresholdsfor the eye and the other senses have been established by research,
and as those limits are approached eyewitness accounts become quite unreliable. In
one case in my experience a police officer testified that he saw the de-
fendant, a black man, shoot a victim as both stood in a doorway 120 feet
away. Checking for the defense, we found the scene so poorly lit that we
could hardly see a person's silhouette, let alone a face; instrument mea-
surements revealed that the light falling on the eye amounted to less
than a fifth of the light from a candle. The defense presented photo-
graphs and light readings to demonstrate that a positive identification
was not very probable. The members of the jury went to the scene...
had the one black juror stand in the doorway, found that they could not
identify his features [despite the fact that they knew him] and acquitted
the defendant.
The witness himself 's a major source of unrelability. To begin with he may have
been observing under stress. When a person r life or well-being is threatened, there is
a response that includes an increased heart rate, breathing rate and bloodpressure
and a dramatic increase in the form ofadrenahn and of available energy; making
the person capable of running fast, fighting, lifting enormous weight-
taking the steps necessary to ensure his safety or survival. The point is,
however, that a person under extreme stress is also less than normally reliable. In
experimental situations an observer is less capable of remembering de-
tails, less accurate in reading dials and less accurate in detecting signals
when under stress; he is quite naturally paying more attention to his own well-
being and safety than to nonessential elements in the environment. Re-
search I have done with Air Force flight-crew members confirms that even
/healthy] highly trained people become poorer observers under stress.
The actual threat that brought on the stress response, having been high-
ly significant at the time, can be remembered; but memory for other
details such as clothing and colors is not clear; time estimates are partic-
ularly exaggerated.
The observer's physical condition is often afactor. A person may be too old or
too sick or too tired to perceive clearly, or he may simply lack the neces-
sary faculty. In one case I learned that a witness who had testified about
shades of red had admitted to the grand jury that he was color-blind. I
testified at the trial that he was apparently dichoromatic, or red-green
color blind and that his testimony was probably fabricated on the basis
of information other than visual evidence. The prosecution brought on
his opthamologist, presumably as a rebuttal witness, but the opthalmolo-
gist testified that the witness was actually monochromatic, which meant
that he could perceive no colors at all. Clearly the witness was "filling
in" his testimony. That, after all, is how color-blind people function in
daily life, by making inferences about colors they cannot distinguish.
Were the "eyewitness" the ultimate victim, the dying declarant, whose
condition cannot be checked at trial, these evidential infirmities would
probably increase manifoldly. This inference is strengthened by statistical
indications that most homicide victims suffer mind-dysfunction-inducing
physiological shock. 55 7 This inference would be yet stronger to the extent
it is valid to juxtapose Freud's theory of parapraxes and Buckholt's obser-
557. Compare, e.g., note 290 supra with note 426 supra. See also note 262 supra (personal
conversations with psychiatrists and psychologists and my survey).
vations. What Buckhout suggests Freud expresses: the closer the mental
set, bias, fixation, resistance, reaction, repression, or unbearable idea to
what must be perceived or recalled, the more likely the paraprax-in the
form of amnesia, substituted memory or date, fact distortion or invention,
or other slip, "involuntary" mistake, or outright lie. Since such problems
are functions of intrapsychic disturbance, and since imminent death or
the thought and implications of death may create or stimulate the great-
est intrapsychic disturbances, the dying declarant may be more given to
parapraxes or unreliable at witnessing than any other person.
Dr. Elizabeth Kubler-Ross, probably the leading medico-psychologi-
cal expert on the experience of dying, has shown in a study of over 200
cases that the first two stages of dying people's psychology are denial (of
actual circumstances related to moribundity) and anger (especially,
among those who have any religious inclinations, anger at God or
whatever is holy). 558 One patient, a thirty-year-old married woman,
"presented herself as a short, pseudo-gay woman who smilingly told us of
her 'benign lymphoma' for which she had received a variety of treatments
including cobalt and nitrogen mustard, known by most people in the hos-
559
pital to be given for malignancies":
She was very familiar with her illness and readily acknowledged having
read the literature about it. She suddenly became quite weepy and told
a rather pathetic story of how her doctor at home told her of her "benign
lymphoma" after receiving the biopsy results .... Please, doctor, tell
me whether it's malignant...," she asked but without waiting for an
answer, she began a story of a attempt to get pregnant. [An attempt for
nine years.] . . . Now she was in the hospital and was forced to sign a
paper for treatment with the explicit statement that this would result in
sterility. . . .It was unacceptable to her in spite of the fact that she had
signed the paper and had undergone the preliminary work-up for the
radiation ...
This communication revealed . . .that she was not able to accept the
fact [of her terminal malignancy] ....
. . .During the following informal, almost social visits, she fluctuated
between talking about babies and her malignancy. She became increas-
558. E. KUBLER-ROSs, ON DEATH AND DYING (1969). As to the sample number, i. at

34. As to death-denying, and its relation to religion, see id.
at, e.g., 13-15, 38-40. Compare R.
KASTENBACH & R. AISENBERG, note 246 supra, at 192-227. As to anger, and its relation to
religion and the religious moribund's anger at God, etc., see E. KUBLER-Ross, supra, at 29-
31, 44-48. Compare Mauksch, The Organizahnal Content of Dying, in E. KUBLER-Ross,
DEATH: THE FINAL STAGE OF GROWTH 7-8 (1975), Citing ON DEATH AND DYING, SUpra,
saying that in the anger stage of dying the patient resents others surviving him and that God
is often the target of anger. Compare note 562 and related text infra with Heller, TheJewsh
View of Death. Guidelinesfor Dying, in DEATH THE FINAL STAGE OF GROWTH, (E. Kubler-
Ross ed. 1975), at 38, 39 saying that the Kubler-Ross "five stages of dying (denial, rage or
anger, bargaining-for time-depression, and acceptance) do not always occur in full se-
quence. Ste also (as to denial and related psychological matters) A. WEISMAN, as cited in
note 426 supra.
559. E. KUBLER-Ross, ON DEATH AND DYING 29 (1969).
ingly tearful and dropped her pseudo-gay appearance. . . . She asked

for a "magic button" which would enable her to get rid of all her fears
and free her from the heavy burden on her chest ...
• ..[After a few "fruitful" visits, the] following visits were filled with
angry, nasty remarks at the nursing staff, psychiatrists, and others ...
When she realized that she was not rejected . . .she became aware of
the origin of her anger and expressed it quite directly as anger at God for
allowing her to die so young and so unfulfilled ...
Until the present . . .this patient . . . maintains this dichotomy in re-
gard to her chief problem. . . . Her greatest fear at the time of this
writing is the possibility of her husband marrying another woman who
might bear children. 0 . . . She still has not completely coped with her
56
envy for the living.
While denial is pervasive and irrationally related to critical wishes and
fears, anger "is displaced in all directions and projected onto the environ-
ment at times almost at random. ' 561 Kubler-Ross's study, however, was
of hospital patients suffering terminal illnesses that lasted weeks or
months. Of the relation of Kubler-Ross's findings to quick, traumatic
deaths, Dr. William Lammers, Jr., another psychiatrist-thanatologist,
56 2
speaking on the National Public Radio program "Options," said this:
You're familiar probably . . . with Elizabeth Kubler-Ross's stages of
one's reaction to one's own death . . . the denial, anger, depression, bar-
gaining, and acceptance. . . . These . . . are indefinite phases that
never are-or rarely usually-seen in their entirety and clearcut phases,
as she is the first to admit. . . . We frequently see people at odds, expressing
anger or misunderstanding, /but they canj begin to communicate. This is especially
true in protracted illnesses. Where the death occurs as the result of. . .accident, or
a heart attack, or a stroke that has an immediatefatal result, then thefeelings are
quite exaggerated.
Indeed, cardiovascular or pulmonary shock can produce special anxiety,
disorientation, suspiciousness, delerium, derangement, paranoid delusion,
violent temper, homicidal inclination, progressive hyperactivity, and/or
56 3
mania.
My survey suggests that, at least respecting hate objects, the general-
ity of dying people will not be truthful. 5 6 4 Since shock, irrational denial,
and random, displaced, exaggerated, alloplastic anger may combine to
create and diffuse hatred and, hence, to generate hate objects, the
probability of an unreliable "normal" dying declarant would seem
greater than my survey suggests. 565 Survey responses were addressed to
560. Id. at 29-31.

561. Id at 44-45. Compare note 562 and related text infta.
562. Seenote 426 supra.
563. Compare, e.g., notes 412, 420, 426, and related text supra with Survey questions
I1(d)-I l(e) and Table II(A), Appendix, infra. See also note 262 supra (conversations with
psychiatrists and psychologists).
564. Survey questions 14(b) and Tables II(A)-II(B), Appendix, infra. See also note 309
supra and Part lII.B.2 infa.
565. The cover letter to my survey meticulously avoided any suggestion that the goal of
the truth/untruth dichotomy. Whatever the actual chance that a dying

declarant will have lied, it must be additional to the chance that any eye-
witness-traumatized, moribund, or healthy-will be a designlessly unre-
liable evidence source.
(c) Religious or Religious-like Vectors

As discussed above, at bottom of the dying declaration rule is a belief
that fear of divine retribution or some similarly compelling apprehension
moves the dying declarant to truth and accuracy where otherwise he
might lie or negligently witness. Here 'this belief will be tested against
clinical, empirical, and experimental evidence.
(1) Incidence of Relevant Religiosity

Though Sir Walter Raleigh's case and the Star Chamber imply the
contrary, the average man of earlier times may have feared divine retribu-
tion so much that despite all normal pressures or even mortal pain he
would not "go to his Maker" with a lie on his tongue. The issue, however,
566
is current social fact.
Nearly all major or notable religion systems involve interdictions of
dishonorable behavior. Most involve something like the Christian belief
in divine afterlife-retribution-though Judaism does not recognize a
heaven or hell, and one form of Zen Buddhism and some other faiths are
not concerned with morality as Christianity and like faiths conceive it.
Since this is not an exegesis of world religion, it will be assumed arguendo
that most religious Americans are of Christian, Jewish, Buddhist, Hindu,
or Moslem persuasion and that the teachings of their sects would oppose
strongly a dying declarant's lying. But how many Americans really be-
lieve or follow such teachings?
In 1968, George Gallup and John Davies ran a survey of religious
behavior. The results were published under the title US Differs Markedly
from Other Nations in Bastc Religious Behiefs. 567 The results included these
the survey was to gain data relevant to the psychology of the dying declarant. Survey ques-
tion 14, likewise, did not hint that the dying individual in question was the unusual one who
had suffered a very imminently fatal physical trauma probably inflicted intentionally by the
victim or another. Though biases respecting such special dying circumstances probably
were avoided in this way, the relevance of responses to question 14(a) probably was reduced
somewhat. See also note 564 and related text supra. Many may have responded to 14(a) with
the view that the dying person in question was more likely than not a patient suffering a
terminal disease--a patient who, according to Kubler-Ross (see note 558 supra), in his final
stage of dying, when death was most imminent, had accepted death and resolved much of
the psychological conflicts involved in dying. See also text immediately following this note,
before Sub-Part "(c)."
566. See generallty Part III.A supra.
567. This survey was run for "GALLUP INTERNATIONAL." Its data are being used
by permission.
findings:5 68
While 98 of 100 American adults interviewed "attest to a belief in God,"
some of those were "only paying 'lip service' " or "say they believe in
God because they think it is the 'right' answer to give." This followed
from their responses to other questions, e.g., on church attendance (as
illustrated below).
Between 1955 and 1968, nation-wide church attendance by adults
dropped from 49% to 43%, while in 1968 adult attendance elsewhere
ranged from 42% in the Netherlands to 9% in Sweden and 5% in Fin-
land.
Ninety percent of interviewed Protestants and 89% of Catholics ques-
tioned said they believed in heaven; no statistics on Jews or nonwhites
were produced on this question; and foreign population responses
ranged from 65% in Greece, and 62% in Finland, to 54%, 43%, and 39%
respectively in Great Britain, West Germany, and France.
To the question whether the respondent believed in hell, 70% of both
Catholics and Protestants answered affirmative; again no Jewish or non-
white statistics were produced; and foreign responses ranged from 62% in
Greece to 17% in Sweden.
As to whether there is a life after death, 79% of the Protestant respon-
dents and 75% of the Catholics affirmed; Jewish and nonwhite statistics
were absent; and foreign ones ranged from 57% in Greece to 35% in
France.
Only 65% of the Protestants and 59% of Catholics believed in the devil,
Jewish and nonwhite statistics were absent; and foreign believers ranged
from 67% in Greece to 21% in Britain and Sweden and 17% in France.
Twenty-eight percent of Americans interviewed had no religious prefer-
ence; the ranges were from 11% in the East to 4% in the South, with 7%
in the West and 6% in the Midwest; as community size increased, so
generally did the percentage (though it dropped some in the 500,000-
plus to 1,000,000-plus increase); and the percentage increased markedly
as income approached $7,000-plus, but dropped off slightly as it climbed
further to $10,000-plus (in the 1968 economy).
These statistics suggest that the majority of American adults are at least
purportedly religious in some way relevant to the dying declaration ques-
tion. The majority is not overwhelming, however, and its significance not
clear. If a respondent says he believes in God, does it follow that he
would be a truthful dying declarant if he does not believe in hell or the
devil, has no particular religion system, and does not attend "church"?
Since European immigration to America has not been infrequent, would
the apparently lesser religiosity of current Europeans have increasing
bearing on this question? What are the postures of Jewish, Moslem, Bud-
dhist, Hindu, and various nonwhite Americans, and how many and how
568. I have synthesized and capsulized statistics and observations presented in the Gal-
lup-Davies publication between and including pp. 1-33. The numbered set of findings in
the text immediately below this note do not appear, as such, in the publication. I have
taken care not to interpolate, however.
increasing are those people? In any case, what are the significances of age
and socio-economic factors?
Among Catholics and Protestants ages twenty-one to twenty-nine,
only 34% attended "church," 84% believed in heaven, 66% in hell, 71% in
life after death, and 60% in the devil. 569 In only one respect did the per-
centage decrease in the fifty-and-over age bracket-belief in hell. 570 Two
inferences opposed to the dying declaration rule can follow: As time goes
on fewer people will be relevantly religious; as people approach ages
where death is closer-as they approach death-they lessen their belief in
afterdeath punishment. Again, of course, the lack of statistics for Jews,
Moslems, and nonwhites clouds the matter.
As wealth, schooling, or job-status rose, church-going fell. 571 The op-
posite was true, however, with belief in heaven, hell, life after death, and
the devil, with the exception of life after death vis-h-vis occupational sta-
tus. 5 7 2 Since the lowest strata-grade school education and manual la-
bor-are shrinking, the indications again are toward a decline of relevant
religiosity. In some degree, the church attendance figures can be ex-
plained by an upper class tendency to want the appearance of propriety
and have the leisure time and wherewithal to set aside a part of Sunday,
regularly, for conspicuous moral socializing. In their Gallup Opi'on Index,
April 1971, Report No. 70, for "Gallup International," Gallup and Da-
vies found that of American ministers, priests, and rabbis, as few as 68%
"think souls live on after death. ' 573 The highest incidence of belief in
afterlife was among Catholic priests--98%.574 Only 79% of Eastern
569. Taken from the Gallup-Davies publication's separate charts on church attendance,
belief in heaven, belief in hell, belief in life after death, and belief in the devil. The charts
indicate that their data were drawn from responses to questions like: "Do you believe in the
devil?" "Do you believe in hell?"
570. The statistics presented were 21-29 years = 66% "yes," 30-49 years = 67% "yes,"
and 50 and over = 65% "yes," while "no" answer relative frequencies were 29%, 26%, and
30%, respectively. It may be significant that there are more Americans 21-49 years old than
those 50 years and over.
571. Drawn from Gallup-Davies Chart on church attendance, which did not explain
the investigation or questioning leading to the responses it listed. On the first page of the
publication, it is noted:
Furthermore, during the period of a year [the survey period], more than eight in
ten will attend church at least once .... A large majority of Americans say they
pray "regularly," and the proportion who claim no religious preference . . . is
small (less than 10 per cent . .
572. V-s-vis occupation, "yes" answers on life after death fell in this relative-fre-
quency/distribution: Manual-laborers = 71%; farmers = 86%; white-collar = 66%; profes-
sional and business = 76%. One might question the surveyors' choice of categorization: it is
not unlikely that, e.g., professionals (doctor, lawyer, nurse, engineer, etc.) and business-per-
sons (salesmen, shop-owners, corporate executives, etc.) are separate and distinct subcultures,
with significantly different psychologies.
573. GALLUP & DAVIES, GALLUP OPINION INDEX, REP'T. No. 70, April 1971, page 21.
Used by permission.
574. Id
American ministers held the belief.5 75 As many as 93% of the priests had
considered leaving religious life, while only 60% of the rabbis had, though
the rabbis believing in afterlife were fewest. 5 76 Recent news reports indi-
cate an increase in disillusionment among priests (Catholic and Episcopa-
lian) and nuns. These trends must have some negative influence on the
religiosity of many Americans.
In 1968, Stark and Glock published their American Piety: The Nature of
577
Rehgius Commitment, in which there were these findings:
Seventy-one percent of Protestants and 81% of Catholics had no doubts
about the existence of God; 17% and 13% respectively had doubts; 2%
and 1% respectively believed sometimes but disbelieved others; 7% and
3% respectively did not believe in a personal God, but in some kind of
power, 1% of both did not know and thought there was no way to find
out; and similarly 1%did not believe at all.
As to life beyond death, the following positions had these frequencies:
65% of the Protestants and 75% of the Catholics thought afterlife com-
pletely true; 24% and 16% respectively thought it probably true; 9% and
5% respectively thought it not true.
Thirty-eight percent of the Protestants and 66% of the Catholic believed
completely in the devil; 15% and 14% respectively thought he probably
existed; and 43% and 14% respectively did not believe in him.
The sample consisted of 2,326 Protestants and 545 Catholics, or a 2,871
total. Thus, while roughly 2,100 or 73% believed in God without ques-
tion, only 1,921 or 67% believed in afterlife and only 1,244 or 43% be-
lieved in the devil. One inference is that there is a tendency to want to
believe in benign, rewarding, or coercible mystical power, but not in eter-
nal punishment-in help and support without danger or limitation.
Other Stark and Glock figures lead better to such inferences. The break-
down by sect (using figures for some prominent sects) shows inter aha the
5 78
following figures on clear belief in afterlife:
Sect N.* % (total sample)
Congregational 54 36 (151)
Methodist 203 49 (415)
Episcopalian 220 53 (416)
The same analysis of belief-in-devil answers includes:
575. Id
576. Id
577. Copyright 1968 by the Regents of U. of Cal. The abstract in the text that follows
this note was derived from Stark and Glock Tables 2 and 8. While I have changed the form
of data-presentation, I have taken care to avoid interpolating. It should be noted that Stark
and Glock took another ("National") sample yielding a 79% clear belief in God among
Protestants, 85% among Roman Catholics. Id, Table 3. Reprinted by the permission of U.
of Cal. Press.
578. Id, Table 7, used by permission. The form of data presentation in the text follow-
ing this note differs from that in Stark and Glock, but the content is true to the Stark and
Glock presentation-though I have added approximated absolute frequencies.
Episcopalian 71 17 (416)
Presbyterian 153 31 (495)
American Lutheran 102 49 (208)
American Baptist 69 49 (141)
* (Not given in original; approximated by me from % and total sample figures)
All of these figures, including belief-in-God data, were drawn from the
limited and obviously biased population of proper church-members.
When the population was widened to include a nationwide sample of
both church-members and the "unchurched" the following breakdown
579
resulted:
(A) Absolute belief in afterlife
Unitarian 0 0 (009)
United Presbyterian 27 36 (056)
Protestant Episcopal 20 35 (056)
Presbyterian Church
of U.S. 17 43 (040)
The Christian Church 18 42 (042)
American Lutheran
Bodies 76 52 (146)
Lutheran, Missouri
Synod 23 50 (045)
Evangelical Reform 14 50 (028)
Total Protestant (some figures omitted above) ..................... (1197)
Catholic 243 48 (507)
(B) Absolute belief in devil

Unitarian 0 0 (009)
United Presbyterian 15 20 (075)
Protestant Episcopal 12 21 (056)
Presbyterian Church
of U.S. 14 35 (040)
The Christian Church 12 29 (042)
American. Lutheran
Bodies 45 31 (146)
Lutheran, Missouri
Synod 19 44 (045)
Evangelical Reform 11 39 (028)
579. Id, Table 8, used by permission. See note 578 supra re: format and addition of
absolute frequencies.
Southern Baptist 103 55 (187)
Total Protestant (some figures omitted above) ..................... (1197)
Catholic 183 36 (507)
As Stark and Glock admit, 5 0 the population widening led to a belief

reduction in nearly all sects. Nearly all-including Catholics-showed
less than a clear preponderance of positive belief in aspects of Christianity
material to the tenability of the presumption in question.
In the preceding surveys, the Catholic faith stood out as still capable
of instilling a fear of the devil and retribution in its purported followers.
In Religion in America, 1975 Gallup Opinion Index Report No. 114, there
was published a Survey of Opinion Leaders, Worldwide Infuence of Roman Cath-
olic Church Seen Declihing. It included the following (which I reproduce by
permission):
"Looking ahead 20 years, do you think the Roman . . . Church will
have more influence. . . less influence ... or will there be little change
from today?"
More Influence 8%
Less Influence 45%
Little Change 42%
No Opinion 5%
"Which of these statements comes closest to your religious beliefs?" (be-
low are statements and % choosing each)
(a) There is a personal God ............................... 40%
(b) There is some kind of spirit or vital force in the world .... 37%
(c) I am not sure there is a God or vital source ............. 9%
(d) I am sure there is no God or vital force ................. 11%
(e) N o response .......................................... 3%
"Do you believe in life after death?"
Yes 53%
No 33%
No opinion 14%
Since the bulwark of beliefs appropriate to the dying declaration rule
seems of late to be from Catholicism, it is of negative significance that
"world leaders" see the Catholic Church's influence waning or stagnant.
Since world leaders are often politically pressed not to admit publicly be-
liefs or disbeliefs that traditionally and purportedly have been considered un-
popular or socially unacceptable, it is not unreasonable to assume that
some of those who claimed belief in a personal God simply were appre-
hensive of admitting a contrary or doubtful view. If social or economic
pressure moves many ordinary people to profess belief in God even when
their real feelings are clouded, contrary, or indifferent, it must, afortion,
similarly move a public figure whose occupation depends on his public
image. Likewise the "vital force" responses might be public relation com-
580. Set Stark and Glock at 38-39.

promises. The meaning of the "vital force" responses cannot be clear re-
specting the presumption in question. Does the vital force merely keep
life going or do some other amoral job; or is it programmed to single out
events like human deaths and press the central figures-the dying-to be
peculiarly moral? What really was the content of the "no response" and
"no opinion" statistics? Were these world leaders afraid to commit them-
selves publicly? Can the 53% majority believing in an afterlife truly be
called a clear majority? How can these world leaders, by definition singu-
lar persons, be said to reflect common man's beliefs? Are not democratic
world "leaders" and "leaders" in America mostly followers, rather than
personified forecasts of social development?
One problem with all the preceding statistics that makes each appear
more than it should to support the presumption in question is the failure
of all the surveyors to research adequately the class of Americans without
formal (or any) religious association or conviction. In fact, the Gallup
surveys do not at all take into account Jews, Moslems, Buddhists, Hindus,
avowed agnostics and atheists, and unconcerned realists, as well as non-
whites of all these classes. The Stark and Glock findings are little better
in these respects, apparently adding no more than nonwhite Christian
data, if any.
Glenn Vernon's The Religious "'Nones" A Neglected Category581 begins
to deal with this problem. Using a sample of students from several Amer-
ican colleges and universities, and limiting the groups interrogated to
those having thirty-five or more members Vernon produced the following
data.
Question: "Which of the Following Statements Comes Closest To What You Believe
About God?"
No per-
Religious No Some Some- sonal Agnos- No
Affiliation N doubt doubt times God tic Atheist answer
None 85 7.1% 10.6% 8.2% 18.8% 27.1% 23.5% 4.7%

Roman Cath. 466 53.2 30.7 5.4 5.8 3.6 .6 .6
Methodist 269 34.6 40.9 8.6 7.1 5.9 1.5 1.1
Presbyter. 35 28.6 40.0 2.9 11.4 14.3 2.9
Episcopal 73 26.0 42.5 15.1 6.8 6.8 - -
Congrega-
tional 208 24.5 35.6 13.0 13.5 8.2 2.9 2.4
Lutheran 58 46.6 36.2 8.6 5.2 3.4
Baptist 181 50.8 35.9 5.5 2.8 2.8 .6 1.7
Mormon 275 81.5 13.1 1.5 .7 2.5 .4 .4
Protestant 43 44.2 27.9 2.3 7.0 4.7 9.3 4.7
581. Vernon, The Rehktigus "Nones'" A Neglected Categoqv, J. FOR SCIENTIFIC STUDY OF
RELIGION 219 (1968). The Tables in the text following this note (re." "Religious Nones") are
virtually identical with those in the Vernon article-a typeface change, a few footnote
number deletions, and three, insignificant, wording omissions in headings being the only
changes. See id. at 222-24. The data are reprinted by permission.
84 53.6 21.4 8.3 ,7.1 3.6 5.0 4.8
Question: "Have You Ever Had a Feeling That You Were Somehow in the Presence of
God?"
Religious "Yes, I'm sure I "Yes, I think I "No" No
Affiliation N have" (percent) have" (percent) (percent) answer
None
Roman Cath.
Methodist
Presbyter.
Episcopal
Congrega-
tional
Lutheran
Baptist
Mormon
Protestant
Jewish
Question: "Have You Ever Had a Feeling that You Were Being Punished by God for
Something You Had Done?"
Religious "Yes, I'm sure I "Yes, I think I "No" No
Affiliation N have" (percent) have" (percent) (percent) answer
None 85 7.1 16.5 72.9 3.5

Roman Cath. 466 30.7 42.1 26.0 .9
Methodist 269 18.6 43.5 36.1 1.5
Presbyter. 35 22.9 40.0 37.1 -
Episcopal 73 11.0 42.5 45.2 1.4
Congrega-
tional 208 15.9 42.8 40.4 1.0
Lutheran 58 29.3 46.6 24.1 -
Baptist 181 33.7 39.8 26.0 .6
Mormon 275 31.3 30.5 37.8 .4
Protestant 43 30.2 20.9 46.5 2.3
Jewish 84 39.3 36.9 20.2 1.2
It is questionable whether the population of college and university stu-

dents was random or representative of the nation. The class of Americans
who are at some time in college or a university does not comprise the vast
majority of Americans, and there is no indication whether the choice of
schools was random. In fact, Vernon's data would suggest that 15% of the
American people are Mormon while much fewer are Baptist, Episcopal,
or Presbyterian. It seems unlikely that Mormons are so relatively strong.
Nonetheless, the Vernon surveys at least contemplate a greater variety of
views than did those of Gallup and Davies and Stark and Glock. More
importantly, Vernon attempted to account for the nonaligned, agnostic,
and irreligious. In any event, the Vernon tables indicate, inter a/ia, the
following:
Forty-seven percent have no doubt that there is a God.
Thirty-six percent have had a feeling of somehow having been in God's

presence.
Twenty-six percent have had a feeling. that God was punishing them for
something they had done.
Since the 15% who were Mormons were, all in all, far away the strongest
believers, one might expect that the true percentages are even smaller. In
any case, the Vernon statistics are very far from healthy support for the
presumption that a clear majority of Americans would be peculiarly
truthful as dying declarants. At best, the express beliefs of those whom all
these surveys reached--structured, abstract purports stated in somewhat
socially pressured, semi-public settings---can only lend uncertainty to the
empirical basis of the presumption in question.
(2) Religion, Veracity, and Reliability

Little is needed to prove that religious "persuasion" or even actual
religious zeal can be quite consistent with unspeakable cruelty, insensitiv-
ity, and corruption. Recall the Inquisition, pogroms, and Jewish cherem (I
Samuel 15, II Kings 10). Recall how Spanish Jesuits "saved" the "pagan"
New World Indian children by baptising them and then splitting their
heads on the sides of altars. Recall Richelieu's intrigues and grand de-
ceits, and decades upon decades of insidious and bloody religious strug-
gles in England. These recollections would only scratch the surface of
religious history. More importantly, the "great" and notorious events in-
volved, even the religious malignancy that led to the murder of Christ,
would not reflect the real problem: the small but dangerous psychic
warpages that the little common man may somehow support or associate
with his religion.
Writing in the Encyclopedia of Mental Health, Dr. Karl A. Menninger
582
and Dr. Paul W. Pruyser observed:
Anthropologically, it may be said that in the idea of the "sacred" or the
"holy" the notions of God(s) and value(s) meet. But when societies be-
come secularized, as happens in the technicological civilizations, reli-
gious values and cultural values ... may constitute two more or less
separate realms. With this development the religious sources of some
public morality. . . as well as the secular origin of some religious values
(e.g., defending slavery by bible quotations, taboo on anger in church
life, the fashionableness of church membership) may be forgotten or
mixed up beyond recognition. The relations between religious and "other"
values are thus extremely complex.
Furthercomplexity arisesfrom the individual's own multiplicty of motives and the

confl'cts possibly engendered thereby. Psychologicalobservation shows that many
people, although verbally placing religious values . . . at the top of their value
hierarchy, in practice abide by quite opposed principles.
582. Vol. 4, at 1252-53 (Deutsch ed. 1963) (emphasis added).

The crsis situations in an individual's life (dying, illness, bereavement) and

in the life of a group (political oppressions, persecutions, natural disas-
ter) are a test of. . . value systems, ofien placing the nature of the value hierarchy
in sharp rehef by placing individualsor groups before a diftcult choice (e.g., hope
or despair, loyalty or treason, . .
The author of Relig'on in Illness andHealth, C.A. Wise, after extensive
clinical observations, concluded:
Two persons may clothe their beliefs in the same symbols, one expressing
a healthy and the other an unhealthy Weltanschauung. Religious be-
liefs may crystallize personality or cultural tendencies that function in
the direction of either health or disease. Strong internal pressures such
as anxiety may lead a person to place extreme exphasis on a particular
belief or to oversystematize his beliefs. . . . The destruction of a belief
may result in a serious disturbance within the personality.
. . . [B]eliefs resting on an unstable personality adaptation may develop

into a logic-proof structure. Indeed, such structure may give unstable
personalities a certain security and strength which must be constantly
reinforced by the logical and systematic elaboration of the beliefs ...
The crux of the problem is not in the logical development, but in the
main premise, which represents the personality maladjustment in intel-
lectual terms. Patients suffering from delusions of persecution are ex-
perts in building logical systems on a premise that is subjectively real but
objectively false, without recognizing the true nature of their premise
and its relation 5to
83
their personality problem. But thi is not confined to
paranoid patients!
If the premise is appropriate, the conclusion can be that a false accusation
is morally compelled-really best in the end, the deepest true loyalty or
faith. If one's premise is one's special place with God, an "untimely" fatal
injury may destroy one's "system" and reason for "moral" behavior. Re-
call the Kubler-Ross observation that irrational, even delusional denial of
the fact or moribundity--of what God had done- and displaced, broad-
siding anger-including at God for cruelly killing too early-are not
atypical of the reactions or behavior of terminal patients. Recall the
Lammers observation that in cases of quick or traumatic death such be-
havior or emotion is exaggerated. It seems to follow that despite or be-
cause of an individual's personal religious system or background, the
ultimate stress of a fatal injury may well displace his positive values-if he
really had any-and give vent to the darkest content of his psyche.
Worse, an individual's religious behavior may be symptomatic of a psy-
chopathology disposing him toward critical deceits; the deeper his religion
the greater his propensity to autogenous immorality or characterological
infirmity.
583, C.A. WISE, RELIGION IN ILLNESS HEALTH, 130-31 (1942) [hereinafter WISE] (em-
phasis added).
Writing in Religion and Human Behavior, Wayne E. Oates spelled out

the role of religion in psychoses:
The virtues of high religion can easily be counterfeited by the self-decep-
tive psychotic mind....
• . . [T]he remarkably suggestive power of religious worship and reli-
gious instruction over the minds of the masses makes religion a poten-
tially helpful or dangerous influence upon the mental health of the
populace. Religion may either facilitate mental health or breed and
maintain mental pathology ...
• . . Much that is called the "cause" of mental illness is in reality merely

a symptom . . . and supplies the glaringfoms rather than the hidden
causes. . . . Much that appears as a dynamic cause. . . is actually a set
of precipitating factors rather than the source of the pathology . . . it-
self.
[I]t needs to be clearly understood that when an investigator says
religious experience is the cause of psychotic condition, he means that
the patient's character
584
and personality development have been warped by
religious inAluences.
Along these lines, Wise says:
There is another way of dealing with intolerable conflict. This involves
changes in the environment rather than in the personality [ie., alloplastic
behavior]. . . . The major symptoms are. . .antisocialbehavior in a person-
alty which may otherwise appear normal and which manifests none of the usual
symptoms of mental illness. Many delinquents and criminalsfall into this group,
though not all. . . . [Some/ commit. . . antisocialacts because the problems of
adjustment have produceda characterdisorder rather than a psychosis or psycho-
neurosis.
.. . Many of them, realizing something is wrong, seek the help of reli-

gion. . . . Sometimes religion is successful . . . but many times it is not ...
• . . Paradoxical as it may sound, some hostility [as Freud also observed]
grows out ofa sense ofguilt which demands punishment. The antisocialact is the
person's way of bringtngabout punishment on himself. . . to assuage his gutt.585
Further along these lines, Morphew and others have suggested a positive
correlation between religion and suicide.5 86 One thus can imagine reli-
584. W. OATES, RELIGION AND HUMAN BEHAVIOR 88-89, 96-97 (1954). See also id at
100-03.
585. See C.A. WISE, note 583, at 59-60 supra (emphasis added). See generaly id at 59-61,
108-09, 150-51. On the matter of Freud's and other psychoanalysts's agreement that hostil-
ity may grow out of guilt, see FINE, note 245 supra, at 224, citing S. FREUD, SOME CHARAC-
TER TYPES MET WITH IN PSYCHOANALYTIC WORK (1915). See also Character and Neurosis,
note 242 supra, at 43; Neurottc Character, note 427 supra, at 292, 294-96, 297-99.
586. See Morphew, Religion and Attempted Suicide, 14 INT. J. Soc. PSYCH. 188 (1968),
indicating that in fifty attempted suicide cases eighteen subjects professed to be Roman
Catholic, twenty-seven to be Protestant, while twenty-one attended worship regularly or
sometimes, and thirty believed in God and twenty-two in life after death. Compare KAS-
TENBACH & AISENBERG, note 246 supra, as cited there and in note 558 supra. See also other
authorities cited in note 558 supra.
gion-induced, religion-reinforced, or religion-associated guilt leading to a

man's committing a crime intended to be notorious---one involving an
affray-and his getting fatally injured, all because of an intrapsychic dis-
order compelling him to be noticed and punished. Did he want death as
a punishment; or did he want to live, punished? Did he rebel at repres-
sive authority, and does he see that as God? Will he seek further punish-
ment by God-in afterlife? Will he lie-falsely accuse-knowing that
this will surely send him to hell? Does he also prefer hell to heaven and
God, since God, after all, is the ultimate personification of the forces that
cause him his guilt and torment him? These grotesque suggestions-
though far from unlikely in reality-are not common. Yet the problem
they present-religion-related deception-is apparently not.
In 1916, W.A. Bonger 587 investigated the relation between criminal-
ity and religion in Holland between 1897 and 1909. He found that dur-
ing that period there was a marked negative correlation between non-
churchmembership or trreligiousness and criminality. Studying data
from Allegheny County and Philadelphia, Pennsylvania, in 1964
Lunden5 88 found the same negative correlation and a postit've correlation
between religious association and crime-commission. Apparently feeling
socially compelled to lessen the impact of his findings, Lunden offered a
non sequitur as an excuse: The white male subjects studied were 68.8%
Catholic, the blacks 89.4% Protestant, and the white females 65% Catho-
lic, the blacks 88% Protestant; therefore religious beliefs are insignificant
factors in criminal behavior (because otherwise such disparities in affilia-
tion or religious leanings would not be present). [Sic!] But the disparities
were adventitiously historical, relating to the locations of settlements and
the geographical distribution of slavery, while the only factor common to
all was Christian or Judeo-Christian "belief." In 1927, Frank A.
Clarke's 58 9 tests of 500 Daily Vacation Bible School pupils in Lincoln,
Nebraska indicated that religion has no influence on tendencies to cheat
or deceive. In 1930, Hightower 590 and Beiswanger 59 ' published results of
the tests of large populations of children indicating Bible education has no
positive bearing on good character. Maller's testing study,5 92 in which
the idea of one's relation to God was put as "God loves an honest man,"
suggested that some children responded well to the proposition/stimulus-
but many did not. Mailer's study sample was small, however.
587. See W. LUNDEN, STATISTICS ON DELINQUENCY 154-55 (1964).

588. Id at 155-57.
589. Clarke, Some Character Tests, 46 AMERICAN EDUC. DIGEST 225 (1927).
590. P.R. HIGHTOWER, BIBLICAL INFORMATION IN RELATION TO CHARACTER AND
CONDUCT (1930).
591. G.W. BEISWANGER, THE CHARACTER VALUE OF THE OLD TESTAMENT STORIES
(1930).
592. See H. HARTSHORNE, & M.A. MAY, STUDIES IN DECEIT 371-75 (1928).
Perhaps the most extensive, impressive, and statistically meaningful

study was Franzblau's testing of 701 adolescent Jewish religious-school
students. 59 3 Franzblau took great care to make his sample intellectually
and otherwise representative of both the whole Jewish community and
the socio-economic structure of the nation. 594 Averages in parent income,
job level, education level, etc., were thoroughly accounted for. 59 5 Con-
trol/comparison tests were given to a fair admixture of adults, and checks
against general population norms were made for all tests. 596 Tests given
included: (a) Intelligence (Therman "group Test of Mental Abilities"); (b)
Moral Knowledge (C.E.I. "Good Citizenship," Mailer "Ethical Judg-
ment"); (c) Character (Mailer "Self Marking," C.E.I. "Coordination,"
Mailer "Cooperation and Persistence," C.E.I. "Attitudes-S.A.," C.E.I.
"Speed-I.P.," C.E.I. "Money Voting," C.E.I. "Guess Who"); (d) Personal-
il (Sweet "Personality Attitudes Test for Young Boys", Mailer "Atti-
tudes for Jewish Students"); (e) Background (Maller "Attitudes for Jewish
Students," Mailer "Background for Jewish Students"). Two tests were
developed specially for the study: "Religious Ideas Test" (for testing, e.g.,
learning and belief of religious dogma or concepts); "Confession and Re-
porting Blank" (devised to test, e.g., willingness to admit error or to impli-
cate a fellow, justly or not). 59 7 The following are my summaries of the
relevant Frazblau findings:
(a) No appreciable ("significant" or "reliable") correlation between
emotional instability and extent of "acceptance" of religious beliefs, cor-
relations being, however -. 124± .049 for 206 children, using "Religious
Ideas Test" and "Temperament" (measured by Mailer's adaptation of
the Pressey "X-O" technique), and -. 124 ± .050 for 206 children, using
"Religious Ideas Test" and "Personal Adjustment" (measured by Mai-
ler's adaptation of the Woodworth technique) and a positive correlation
being found between598
belief acceptance and instability of "Jewish" emo-
tional adjustment.
(b) Acceptance of religious dogma was not accompanied by superior
character responses. No relation was found between belief-acceptance
593. A.N. FRANZBLAU, RELIGIOUS BELIEF AND CHARACTER AMONG JEWISH ADOLES-
CENTS [hereinafter A.N. FRANZBLAUJ. Re: sample size, see id at 1. More recent materials
on such topics exist (see notes 632-33 infra). I know of no study more thorough and statisti-
cally careful than Franzblau's, however. Moreover, the subject matter does not alter signifi-
cantly in a few years or decades, if at all-iL., though the content of religion may change
somewhat, the socio-psychological impact of those factors common to nearly all religions
remains fairly constant, as do the reasons why people involve themselves with religion. Com-
pare, e.g., P. RADIN, PRIMITIVE RELIGION: ITS NATURE AND ORIGIN (1957) and note 558
supra with M.P. NIL.SSON, THE MINOAN MYCENAEN RELIGION AND ITS RELATION TO RE-
LIGION IN GREECE (Rev. ed. 1971).
594. AN. FRANZBLAU, note 593 supra, at 10-13, 60-66.
595. Id. at 12.
596. Id. at 59-66. Seeid at 11, 13-14.
597. Id.at 18-35.
598. 1d. at 40. See id. at 68. As to instability ofJewish emotional adjustment, id at 50,
and, e.g., persistence, generosity, inhibition, or readiness to confess unde-

sirable conduct.
599
Small negative relationships were found with all measures of
honest.
(c) Small negative relationships were found between moral knowledge and ex-
6 °°
tent of behlef-acceptance.
(d) No rehable relation was found between length of 6religious
1
school at-
tendance and good character and personality scores. 0
(e) No rehablerelationship was found between knowledge of religious his-
tory, observance 6of2ceremonies, or intensity of "Jewish feeling" or "Jew-
ish adjustment."
() Chronological age, mental age, school grade,6 0and
3
'acceleration' all
were negatively correlated to acceptance of beliefs.
(g) Subjects with the poorest personal conduct scores were most likely
to "rat" on their classmates and the same subjects had highest "Religious
Ideas" scores. Thus, as religiousity increased, good character decreased
while disloyalty increased. Conversely, higher conduct scores correlated
with lower "Religious Ideas" and "ratting" scores. Further, though
among those high conduct scorers who did have good religion scores
honor was good, among low 604
or average conduct scorers with good honor,
religion scores were low.
(h) There was a clear positive correlation between religiosity (stated beliefs in
God and religious dogmas, ceremony observance, etc.) and deception!
Conversely, as behifs became weaker (as shown, e.g., by the statement "God
is only imagination") deception decreased! [These findings followed from
results of three tests-"Self-Marking," "Attitudes--S.A.," and "Coordi-
nation." The first involved some absurdly easy questions and some im-
possibly hard ones. Each child marked his own paper, and could take
credit for answers he could "not give. The second allowed subjects to take
credit for rare but widely approved conduct. The third required exceed-
ingly difficult maze learning where degree of success would indicate ex-
tent of "cheating." Correlation between "Religious Idea Test" scores
and those on these tests were, respectively, +.169 ± .0396 0(279 5
cases), +
.481 ± .026 (404 cases), and + .274 ± .055 (130 cases).]
(i) As environmental
6
maladjustment increased religious belief accept-
ance increased.60
(j) The relations between particular beliefs and character factors were
60 7
the same as relations generally throughout the testing.
(k) The close similarity between the student scores and contemporane-
ous adult scores (as well as checks against national test-norms) probably
indicated that the results of the study of students fairly represented gen-
eral, national trends. This indication seems specially likely in view of the
similar results obtained at the same time in an independent study by
599. Id at 68. See id at 57.

600. Id at 69. See id at 40, 57. Cf id at 43, 45-48.
601. Id. at 69, saying an unreliable positive correlation was found.
602. Id
603. Id at 51, 57, 69-70, 72.
604. Id at 47-48, 50-51, 57, 68-69, 77. See id at 59.
605. Id at 43, 52-55, 58-59. See note 604 and related text supra.
606. Id at 59.
607. Id at 69.
60 8
George C. Betts at Northwestern University.
The Franzblau study, taken together with those of Bonger, Clarke, and
others noted above, strongly suggests an inverse relation (or negative correla-
tion) between re/igion, or at least, apparent religion, and honesty and socially
desirable characteristicsand behavior tendencies. This inverse relation appears
constant irrespective of intrapsychic health, weakness, or disorder.
So far this sub-Part's focus has been on relative extremes-on pa-
tently or seriously abnormal or apparently normal individuals. What of
the introspective or withdrawn neurotic, the person whose psychopathol-
ogy is not noticed in ordinary life and has not been the subject of studies
like Franzblau's, Bonger's, and Wise's?
Earlier, the neurotic was considered. It was shown that the shock of
traumatic moribundity can spark in the chronic or latent neurotic a
psychic disturbance that could lead him to accuse falsely or to mis-
perceive, misremember, or misreport the circumstance of his fatal condi-
tion. It also was shown that religion either may not prevent such a
disturbance or may actually contribute to it. These chances are also re-
flected in responses to my survey questions 4-5, 6(a)-6(b), 8-9, 10(a)-10(b),
1 (a)-I l(e), 12, and 13(b)-13(c).
Though responses to question 4 do not clearly indicate that the psy-
chiatric community finds resistance present in extratherapeutic ("real
life") settings, they tend in that direction. 60 9 Psychoanalytic authority
holds that resistance may occur in any circumstance. 6 10 Resistance is a
mode of avoidance of or reaction to compelling or insistent wish suppres-
sion, impulse opposition, or character threat. 6t1 Kubler-Ross, Lammers,
and others6 t 2 have shown that the dying, especially the traumatically
moribund, often see death as wish suppression. As indicated above, cer-
608. See id at 60-66. Note that the Gallup-Davies survey results also suggest that older
people--closer to probable death-tend to be more selfishly belief structured. See note 570
and related text supra.
609. See Survey and Tables I(A)-I(B), Appendix, infra. Confidence limits of raw mean
for question 4 were 2.422-1.930. This would clearly indicate a tendency to view resistance
as ubiquitous-not limited to infratherapeutic behavior. Since, however, a nonresponse is
ambiguous, but a "no opinion" response neutral, these confidence limits are far from telling
or realistic. Thus, as indicated in the note to Table I(A), I excluded nonresponses. To be
over-fair, I treated "no opinion" responses as "yes" responses-giving the benefit of the
doubt to inferences contrary to my thesis. Still, the resulting-confidence limits (adjusted
mean ± 2.stand errors) were 1.6850016-1.4349984, or 1.7-1.4. The tendency would thus yet
be toward viewing resistance as ubiquitous.
610. S.FREUD, NEW INTRO. LECTURES, note 244 supra, at 13-16, 19, 57, 77; FINE, note
245 supra, at 114; W. REICH, note 241 supra, at 153-60. See Character and Neurosis, note 427
supra, at 44; S.FREUD, INTRO., note 400 supra, at 104, 256-57; W. REICH, note 241 supra, at
185-92.
611. Resistance is a mechanism born of repression and usually presents itself as traits of
character (or aspects of neurotic ego directed toward suppressing impulses or wishes causing
ego sensitivity vis-h-vis super ego or external world). See note 610 supra.
612. See A. WEISMAN as cited in notes 426, 558 supra.
tain neurotics are similarly preoccupied with death. 6t 3 As clinical exper-

iences suggest, 61 4 it can follow that a neurotic will experience a severe
resistance to the religious implications of his condition. The resistance
may show itself as a sort of antireligion. 6t 5 Failing as a protection against
recognition of the inevitable, it might give way to allow a rapid disinte-
gration of the neurotic's psyche. 6 16 In either case, the dying neurotic
would not be likely to care about truth or morality and may even lash out
through spiteful deceit. 61 7 Responses to question 5, clearly tending to-
ward the affirmative, 6t 8 are quite in line with this reasoning. The import
of responses to questions 6(a) and 6(b) is not far removed from the impli-
cations of those to 4 and 5. The affirmative answer is the prevailing view,
a view supported by authorities cited above. 6t 9 If the neurotic is pressed
about the circumstances of his moribundity, he is forced to contemplate
his condition. If the circumstances specially involve his neurotic style or
reaction base (as where his neurotic behavior got him into a dispute lead-
ing to his injury), he may be touched at his neurotic core and deal with
questions about his circumstances in terms of his repressed impulses or
reaction basis rather than rationally. Suppose he is an hysteric. As au-
thorities 620 and responses to question 12621 indicate, he may deal with the
613. Obsessives, to a lesser degree (or less frequently) masochists, and to a still lesser
degree hysterics. Any pathologically depressed individual or person suffering neurotic or
psychotic depression would tend to become preoccupied with death. See.eg., notes 513-14,
516 supra.
614. Compare Survey questions 6(a)-(b), 10(a)-(b), I l(a)-(c), 12 and Tables I(A)-II(B),
Appendix, infra, with e.g., notes 558-62 and related text supra and note 582 and related text
supra.
615. Meaning: anti-morality, anti-ethic, or anti-superego. Compare note 614 supra with
notes 514, 583-85 and related text supra. See also notes 470-534 and related text supra.
616. Compare notes 262, 426, 509, 537, 613-14 and related text supra.
617. Compare, e.g., notes 465-67, 471-76, 559 and related text supra with Survey questions
11(d)-12 and Tables II(A)-I1(B), Appendix, infra.
618. See Survey and Tables I(A)-I(B), Appendix, tnfa. Again, as with question 4, 1
adjusted the mean by excluding nonresponses and combining "don't know" (like "no opin-
ion") responses with the responses unfavorable to my thesis. As Tables I(A) and I(B) show,
in this instance "don't know" responses were combined with "no" responses in adjusting the
mean. The confidence limits of the adjusted mean (see note to Table I(B) on confidence
limit formula) were 1.2231357-1.0625785 (or 1.2-1.1), which clearly tends toward "I" or
"yes." Since resistance can be prevarication, spite, deceit, etc., the implication would be that
stresses associated with dying declaration settings, including the peculiar significances of
questions that police or others may put to the dying declarant about the cause or circum-
stances of his moribundity, could induce resistances reducing the reliability of his declara-
tions. This possibility has been treated extensively above, apazt from the implications of my
survey.
619. See also Part III.B.l(b) supra and notes 241, 405; 409, 411-14. 415, 418-22, 426, 461-
67, 470-538 and related text supra.
620. See notes 241, 465-67, 519-22 and related text supra. See also Part II.C.2 supra.
621. See Table II(B), Appendix, inf/a. In question 12's case, I-again resolving doubts
against my thesis-treated "no opinion" responses as more negative of my thesis than
"never" responses (of which there were none). Still the confidence limits of the (adjusted)
mean were 3.242-2.619 (or 3.2-2.6) indicating a trend somewhere between "2" and "3" (or
questions with substitutions, fantasies, ambiguities, lies, or half truths, to

avoid facing his part in his circumstances. Responses to questions 8, 9,
and 10, clearly tend to suggest that our hysteric, facing those painful ques-
tions, very likely may flail aside his religious scruples in a psychic frenzy.
Since the questions do not limit themselves to hysterics, the responses
could relate equally to obsessives, for example. Obsessives, as developed
above, are morbidly obsessed with death, can be pressed to excruciating
doubts, and under stress are given to distortion. Locked on his confronta-
tion with the death he had ruminated over morbidly so long, and ma-
rauded by consuming doubts, would he hold finely to his scruples? Might
he instead give way to the strongly antisocial forces 622 inside him? The
relevance of questions 11 (a) through 11 (e) is obvious. Since the responses
tended to indicate the affirmative on all questions, 6 23 the implication
must be that a neurotic's religious scruples may be no match for the phys-
ical and psychic shocks of a traumatic demise. Alcohol-related behavior
seems commonly associated with dying declaration cases, as does unusual
violence. Many neurotics are not unlikely to drink heavily or find them-
selves eclipsed by violence they cannot control. 62 4 Thus the affirmative
trend of responses to 11 (e) suggests dramatically the likely frailty of reli-
gious scruples in a neurotic dying declarant. Responses to questions 13(b)
and 13(c) are relevant, as before, 625 to point up the substantial chance of
acutely neurotic problems and behavior in dying declarants. Even if in
everyday life a preponderance of Americans espouse religious scruples
against dishonesty (an assumption any trial lawyer must wonder at), a
preponderance of those Americans may be neurotic or psychotic and
hence unreliable despite professed scruples-at least under stress like that
suffered by a dying declarant.
(3) Integration
The ordinary problems of eyewitness testimony and those of

parapraxes-the perceptual and recording/reporting weaknesses of nor-
mal psychology-have been developed above. 626 It should not require an
extensive exposition to suggest that, despite infinite sincerity and Hercu-
lean moral efforts, the most truly religious among us may not be a more
"often" and "seldom"). If "no opinion" responses had been disregarded (a method for
which there is some argument in this case), the mean would have been 2.1, instead of 2.9,
and the confidence limits more in line with a clear "2" or "often" trend.
622. See,e.g., note 514 supra.
623. The response set farthest from "yes" ("yes" favored my thesis) yielded a 1.233
mean with confidence limits of 1.344-1.122, still an index of a "1" or "yes" trend.
624. Compare note 241 and related text supra with notes 246, 254-58 and related text
supra.
625. See notes 392-94, 424-25, 535-37 and related text supra.
626. See Part III.B.l(b) supra.
reliable witness because of his religion than he would be without it. Reli-
gion rarely, if ever, can enable a person to surmount genetic or historic
physiological or anatomical deficiencies, or the normal (let alone aber-
rant) limitations of the human brain that Buckhout developed (above).
Moreover, if one suffers the sort of "normal" unconscious disturbance
Freud's parapraxes can involve-a disturbance unrelated to or not incon-
sistent with his religion-it would not seem necessary or even likely that
his religious orientation would intervene to prevent a paraprax. Religious
training and religious systems are not geared to make all of one's memory
perfect, as doubtless, they could not be.
Abnormalities notwithstanding, then, the deepest absurdity of the
dying declaration rule is that it expects religion (or something like it) 6 2 7 to
accomplish the clearly impossible-to alter or reverse in the instant or
instants before death the essences of human biophysiology and normal
psychology as well as psychic structure and behavior patterns which, de-
spite or because of religion, have been entrenched over a lifetime. Vl-h-
vzs the matter of parapraxes and psychic or behavioral structure, how-
ever, belief in the metamorphic power of religion likely will persist despite
the quantum of counter-proof. The concepts "parapraxes" and "psychic
structure," and even "behavioral conditioning," seem to be irretrievable
from philosophic dispute, perhaps because to some extent they yet appear
to connote a value system or depend to some degree upon subjectivity or
intuition. Some of Buckhout's demonstrations of infirmities in eyewitness
testimony also may be susceptible to attack on such philosophic grounds.
Most of Buckhout's points, however, followed from objectively demon-
strable physical or medical truths-all quite experimentally supportable.
In 1928, T. H. Howells published a study 628 involving 542 University
of Iowa students. He gave tests distinguishing students by their accept-
ance or rejection of religious dogma, and subjected to psychometric test-
ing those at each extreme of the acceptance/rejection spectrum. While
the "extreme" students put to the latter tests showed no difference in mo-
tor skills, the dogma-accepting group was more suggestible and less intelli-
gent. Also in 1928, R. D. Sinclair published a similar study. 6 29 The
Sinclair study segregated students by religious feelings or experiences, like
apprehension of the force of God. In difficult motor skill tests, those not
having religious feelings were substantially superior. The same
(nonreligious) group was far less suggestible, had greater pain-endurance
and fatigue threshholds, and was much more intelligent. In 1929, Bose
627. Set generally Part I (INTRODUCTION) supra at 102-03, 104-07, 109.

628. A COMPARATIVE STUDY OF THOSE WHO ACCEPT As AGAINST THOSE WHO RE-
JECT RELIGIOUS AUTHORITY (1928).
629. A COMPARATIVE STUDY OF THOSE WHO REPORT THE EXPERIENCE OF THE DI-
VINE PRESENCE AND THOSE WHO Do NOT (1928).
studied 2500, eight-to-eighteen-year-old California residents. 630 His tests

determined familiarity with religious concepts and mental age, and he
drew data on family worship and religious school attendance. Mental age
and religious training success were not significantly related. Shapiro re-
lated dogmatism to obsessive-compulsive neurosis, which, is cognitively
limiting, especially in perception. 6 31 The Franzblau study (above)
showed (in 1934) significant negative correlations between parent religios-
ity and intelligence. Recent Gallup polls (above) suggest that better edu-
cation and higher occupational achievement are, generally, negativey
correlated to the religious behavior relevant to this inquiry. In 1969,
Sanua found that the "contention that religion. . . has been instrumen-
tal in fostering well-being . . . or honesty . . . and other qualities is not sup-
ported by empirical data."632 In 1963, Eisenberg observed that "religious
preoccupations [in adolescents] may be regarded as a sign of emotional
disorder." 633 There is a trend in objective statistics, then, that suggests
that greater religiosity is inversely related to better relevant psychic, physi-
cal, and intellectual qualities. Accordingly a religious "set" or experience
would more likely reduce, not increase, the declarant's reliability as a
physical data processor.
2. Synthesis and Extrapolation

The dying declaration rule depends upon a presumption that religious
or similar, psychological pressures peculiar to moribundity will move
most dying declarants to speak truthfully about the causes or circum-
stances of their fatal conditions. Accordingly, a court will admit (some-
times as though under oath) the dying declarant's hearsay accusation
against a criminal defendant charged with declarant's homicide. The
crucial presumption, however, has never been empirically or otherwise objec-
tively demonstrated to have a basis in social reality. The Constitution
requires that this showing be made by substantial affirmative evidence
indicating a current empirical reality that the presumed fact is clearly
more probable than not.
Psychiatric, psychological, experimental, statistical, medical, and
physical evidence on this matter discussed above seems negative, unsup-
portive, ambiguous, or insignificant. There is no doubt that evidence be-
yond that developed above is available and necessary for a definitive
disposition of the matter. Ambiguities, including those developed above,
must be resolved.
630. Bose, Rehgious Concepts of Children, 24 RELIGIoUs EDUC. 831 (1929).

631. SHAPIRO, note 241, supra at 51-53.
632. Religion, Mental Health, and Personality. A Review of Empirical Studies, AMER. J.
PsycH. at 1203 (March 1969) (emphasis added).
633. Adolescence, in 1 ENCYC. MENT. HEALTH at 69 (A. Deutsch ed. 1963).
Responses to one of the ultimate questions in my survey present a

latent ambiguity that requires consideration. The confidence limits of the
(adjusted) mean of responses to question 14(a) are 1.6674596-1.4378024,
where a '1' answer is affirmative and a '2' answer is negative. 634 Thus the
true mean probably falls very slightly on the affirmative side-not
enough, however, to suggest a clear tendency. Moreover, the true mean
respecting question 14(b) being almost clearly negative, the ambiguity
surrounding the mean on question 14(a) is heightened. Since, e.g., "hate
object" may be an ambiguous term (and because of other reasons given
above6 35), the limit of the crucial term "generally" in 14(a) is unclear.
But this is not the end of the ambiguity. As graphs 'A' through 'D' in the
Appendix, rnfra, indicate, the clear, nearly overwhelming, trend among all
those who responded (affirmatively or negatively) to 14(a) (variable 25)
and 14(b) (variable 26) was to respond aFrmalvel'y to all -but question 1(b)
among questions 1(a) through 12 (variables 1 through 21). This trend
suggests acceptance of theories inconsistent with a neurotic's certainly be-
ing truthful when he knows his death is imminent. 6 36 Since the apparent
mean of responses to questions 13(a)-13(C) 6 3 7 suggests that those respond-
ing to 14(a)-14(b) thought appreciably 6 38 more than 50% of the American
population neurotic, character neurotic, or psychotic (character neurotics
being thought the greatest group), it is unclear whether many respondents
to 14(a) either: (a) viewed "generally" as meaning "normally" and hence
nonpsychopathologically; or (b) were not consistent as between 1-13(b)
and 14(a)- 14(b) (e.g., because of a nonprofessional bias in favor of popular
surmise about the morality of moribunds). Moreover, it cannot be known
whether the 14(a)-14(b) respondents took into account differences in be-
havior as between those facing sudden, traumatic moribundity and those
who had long terminal illnesses. Questions 14(a)-14(b) did not suggest
the difference. Obviously further research would be useful here. Still,
even these responses make very suspect the questioned presumption.
I recognize that my evidence may not prove beyond doubt the fal-
lacy of the dying declaration rule's assumptions. Too, my expositions,
634. &eeSurvey and Tables I(A)-I(B), Appendix, ij/a. Here, because Leaqv, Tot, and
Barnes and other cases require that the government (or proponent of a presumption) affirm-
atively support any presumption it would ask to benefit from, it seemed fair to treat "no
opinion" responses as "no" responses on this ultimate question. Seealso note 635 and sur-
rounding text. On this determination, I sought the criticism of Dr. Phil Emerson, supra note
309.
635. See notes 309 and 565, and related text supra. See also notes 636-38 and related text
in/pa.
636. See Survey and Charts A and C, Appendix, in/fa. Seealso note 635 supra. Compare
Charts B and D, Appendix, in/a.
637. SeeSurvey and Table III, Appendix, i'n/a.
638. Confidence limits of combined means of responses to 13(a)-13(c) were 55%-80%.
See also notes 392-94 and related text supra.
sometimes tending to be those of an opponent of the rule, may have ac-

cented extremes of human deficiency or morbidity. But under Leary the
burden of proof is on the proponent of the rule, and I have shown that the
dying declaration rule must be abandoned unless its proponents can
demonstrate that its presumption reflects prevailing psychological real-
ity-despite my expositions. And what of other hearsay rule exceptions?
I have shown that there is reason to question whether a declarant's
excitement, as where a shocking stimulus has evoked a sympathetic ner-
vous response, may decrease, not increase, the declarant's reliability. The
hearsay rule distinguishes 'excited utterances' sought for the truth of their
content from those sought for the fact of their having been uttered, calling
the latter nonhearsay ('verbal acts'). Excited 'verbal acts' may, however,
present the same reliability/evidential-abuse problems as hearsay excited
utterances. There have been cases 639 where a declaration like "watch out,
run, he's got a gun, oh no, he's got us" has been allowed to prove the
assault element of a robbery. The verbal expressions are seen as so inti-
mately associated with, and forced out by, threat and apprehension that
the expressions and the threat-caused apprehension are practically one. It
is as though, the reasoning seems to go, the expressions are like other,
nonverbal symptoms of the apprehension-symptoms like quickened
pulse, dry mouth, hard, fast breathing, or trembling. There are at least
two problems with this reasoning. First, the symptoms in question have
been shown to be the sort that reduce reliable perception and report-
ing,640 so that while the threat may be truly mirrored in the declaration
or other "symptoms," details of the threat, like its source or movement,
may not. Second, and relatedly, the declaration is meaningless as a ver-
bal act unless at least some of its content is believed for itself; the detail in
its content needed to show it to be an appropriate verbal act may in fact
not be reliable enough to support treating the declaration as an appropri-
ate verbal act.
Statements of intent or state of mind are also of two kinds-hearsay,
and nonhearsay operative fact. Where, for example, the question to
which the statement speaks is the content of a contract whose breach is at
issue, the statement can be treated as nonhearsay because its meaning, not
its truth, may be at issue. 64 1 The parol evidence rule aside, however,
whether hearsay or not, statements of intent or state of mind (or emotion)
639. Compare, e.g., Preston v. Commonwealth, 406 S.W.2d 398 (Ky. 1966).
640. See notes 556-57 and related text supra. Compare notes 241, 262, 405,409,411-12,
421-22, 425-26, 490-524, 536-37 and related text supra. See also notes 414, 416 and related
text supra.
641. Cf Hanson v.Johnson, 161 Minn. 229, 201 N.W. 322 (1924) (action in conversion
where verbal act identified corn to contract). See also Rayborn v. Hayton, 34 Wash. 2d 105,
208 P.2d 133 (1949) (court misanalysed verbal act as hearsay where because of power of
declarant the declaration was operative fact-placing condition on delivery of title).
are problematic because: (a) they are conclusions as to an aspect of psy-

chology; and (b) they are, in and of themselves, neither patently reliable
nor unreliable (no more than any other report of endogenous or exoge-
nous phenomena). As conclusions on aspects of psychology they are sus-
pect because: (a) the subject is the person drawing the conclusion and is
thus both biased and poorly positioned to view all the relevant factors or
variables (since, e.g., he cannot "see" himself; and (b) the subject may not
have the credentials to draw the conclusion and cannot control suffi-
ciently the factors on which the conclusion must be based. As to the other
reason they are problematic, the issue is whether any objecttie mechanism
did or can make available such evidence of the circumstance of the decla-
ration as could indicate either the declarant was better able than most
eyewitnesses (here eyewitnesses to intrapsychic as well as external phe-
nomena) to perceive, process, and report reliably. Suppose a case of a
statement of a term of a contract or one identifying a thing to a contract.
Declarant will often legally have much control of the circumstances. Mis-
takes are yet possible, as is indicated, e.g., by the remedy of reformation of
instruments. As to hearsay statements of intent, state of mind, or emo-
tion, there is obviously less reason to suppose, a priori, any reliability.
Declarations against interest and admissions of parties opponent
would appear less problematic than the declarations considered above,
because it is easy to feel, to intuit with strange certainty, that most people
ordinarily would not speak against themselves if the truth were favorable.
"Admissions" are said to be nonproblematic for special reasons 642 unre-
lated to immediate reliability. They nevertheless at least draw their pro-
bative force partly from the same trustworthiness presumption that is
used to support admission of declarations against interest. 643 Hence both
may be questionable vis-h-vir reliability or presumed trustworthiness. The
question is specially pertinent respecting the problem whether it can be
assumed that the declarant is misled by normal misperception, mis-
memory, or misprocessing of mental data to think falsely that he may be
at fault or liable in some way. The law takes some care to consider
whether the declarant apprehended his position. 644 But the law is not
642. See Morgan, Admirsions as an Exceptian [sic] to the Hearsay Rule, 30 YALE L.J. 355
(1921); Advisory Committee's Note to Federal Rules of Evidence, R. 801(d)(2).
643. See 4 J. WIGMORE, EVIDENCE § 1080a (Chadbourne rev. 1972). To the extent (see
note 642, supra) declarations of co-conspirators are treated as operative facts, they pose the
added problem of the rationality of convicting someone on (not merely on the evidential
basis o) another's words or verbal acts.
644. Peterson v. Richards, 73 Utah 59, 272 P. 229 (1928). See State Farm Mutual Auto
Ins. Co. v. Worthington, 405 F.2d 683 (8th Cir. 1968); Commonwealth v. Dravecz, 424 Pa.
582, 227 A.2d 904 (1967); Strickland v. Davis, 222 Ala. 247, 128 So. 233 (1930). Cf Felisi v.
United States, 352 F.2d 339 (4th Cir. 1965); Demasi v. Whitney Trust & Say. Bank, 176 So.
703 (La. 1937). But see Dutton v. Evans, 400 U.S. 74, 103-04 (1970); Janus v. Akstin, 91
N.H. 373, 20 A.2d 552 (1941).
often in a position to investigate the matter scientifically, even where such

investigation may be theoretically possible. Here, too, there is a reporting
problem, and hence a problem as to whether the declaration really is
'against interest' or an 'admission.' 645 For example, suppose in response to
an "accusing" situation (without accusing words) a person, inter alia, says:
"I'm sorry; if only I'd not gone there." Such ambiguous declarations have
been deemed admissions, even though given excitedly and by a third
party (e.g., Dutton). Not only is it difficult in reason or science to deter-
mine from the obvious circumstances and the declarations' contents what
such declarations really mean, but it is similarly difficult to know whether
the declarants knew or said what they meant or thought.
Scientific reexamination is indicated throughout. Without empirical
support the validity of each use of each of these varieties of hearsay or
verbal act is questionable. The current justification for use of such evi-
dence seems to be that surmise is all we have for testing its validity and we
need the evidence. Surmise is not all we have, and we do not need irra-
tionality.
IV. CONCLUSION
No hearsay is immune from constitutional attack Under the due proc-

ess clauses and, in criminal cases, the confrontation clause. If a hearsay's
subconstitutional admissibility depends on a challenged presumption of re-
liability (trustworthiness), the proponent must affirmatively show by sub-
stantial proof that the presumption at least more than not reflects current
empirical fact. The presumption of reliability of dying declarations is
sorely in need of empirical support, and my investigation indicates that
the presumption is untenable. Many similar presumptions (like reliability
of excited utterances), all depending on psychological assumptions ambig-
uous at best, will also need reexamination. The exception ought to be onl'y
where a hearsay's offered use would be patenldy harmless. At least where
the opponent is a criminal defendant, all doubt about either a reliability
presumption's empirical basis or a hearsay use's harmlessness must be re-
solved in favor of the opponent. If non -patently-harmless hearsay's pre-
sumed reliability is not properly supported, its proponent ought still to be
allowed to answer an objection with proof of the particular hearsay's ac-
tual reliability. If non-patently harmless hearsay's presumed reliability has
been justified, its actual reliability ought yet to be open to objection, at
least by a criminal-defendant opponent. If opponent's objection raises a
legitimate question, proponent ought to be required to make a substantial
645. See Dutton v. Evans, 400 U.S. 74 (1970); Felisi v. United States, 352 F.2d 339 (4th
Cir. 1965); Demasi v. Whitney Trust & Say. Bank, 176 So. 703 (La. 1937); Commonwealth
v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967).
showing of actual reliability (prerequisite to admission). The exception

here might be where (a) the force of opponent's challenge is far from irre-
sistible; (b) the presumed and apparent reliability of declarant or his hear-
say is very substantial; and (c) opponent clearly has substantially the
better access to evidence on the matter. In any event, if the hearsay is
admitted, opponent-especially a criminal defendant-ought to be enti-
tled to have the court instruct the jury as to any inherent weakness in the
hearsay qua hearsay. For example, a criminal defendant ought to be enti-
tled to an instruction that a dying declaration must be weighed in the
light of the always-substantial chance that declarant's condition impaired
his perception, perception-processing, recollection, or reporting, and to an
instruction that the jury must not allow its sympathy for declarant to
influence its assessment of the declaration's credibility. Conversely, to
avoid undue prejudice, the court ought never inform the jury-or let it
learn-the basis of a dying declaration's admission.
At least where opponent is a criminal defendant, hearsay that would
be admissible under all the limits above (except harmlessness) ought yet
to be objectionable in terms of style or circumstance of use. For example,
if (a) the mode and timing of use would make the hearsay unduly crucial
and devastating, (b) the prosecution has not fully tried to produce declar-
ant, and (c) defendant cannot subpoena him, admission against defend-
ant would be error.
Hearsay or not, all verbal evidence sought for the truth of its content
is at least shaded by a chance of unreliability, and most is appreciably
worse. It is fair to leave the opponent's interest to impeachment and con-
tradiction where such evidence takes the form of relevant, competent, in-
frajudicial testimony under oath and subject to cross-examination, and
sometimes where it is an extrajudicial declaration of a witness giving such
testimony-because thefact-findercan witness the declarationbezngfully, judicially
tested through complete confrontation between declarant and opponent. But,
whatever the practicalities, it is irrational-never fair-to remit opponent
to impeachment and contradiction where the evidence is hearsay whose
reliability is legitimately challenged and where instead of full, proper, in-
court testing there is much chicanery or surmise.
In some instances-as with learned treatises and trade or professional
journals-staredecsis might eliminate the costly need to reprove a particu-
lar reliability presumption. But stare decsis cannot logically preclude ob-
jections challenging actual reliability of hearsay or fairness of use. Nor
can it matter that a legislature has asserted a hearsay's reliability or ad-
missibility, or that courts have "recognized" its exception from the hear-
say rule. The necessary goal is fair litigational truth-ascertainment. In
judicial process, "rationality" must mean rationality infact.
APPENDIX
(AUTHOR'S SURVEY-Psychiatrist Poll-cover letter)
Dear
Enclosed is a questionnaire. I should be deeply grateful if you were to take a few mo-
ments to respond to its questions and return it in the stamped, self-addressed envelope also
enclosed.
The nationwide survey of psychiatrists of which the enclosed questionnaire is the vehi-
cle is directed toward gathering empirical data essential to the production of a law journal
article I am writing. The subject is not psychiatric, but legal-a question of court proce-
dure. The survey yields will be appended to the article and the implications respecting the
legal question will be discussed variously in the article's text. Your particular answers will
not be identified to you; but your name will be included in a list of psychiatrists surveyed.*
You will note that some of the questions bend toward the early theories of Wilhelm
Reich. This is because those theories can be related to my legal topic with considerable
facility. The questionnaire does, however, contemplate other psychiatric theories also. I
cannot disclose more at this time; further disclosures might invalidate my survey.
In responding to questions containing alternatives, please circle the alternative or alter-
natives you are addressing. Also, unless you have substantal doubts about whether you can
answer affirmatively or negatively where "yes" and "no" are possible answers, please do not
choose a "don't know" or "no opinion" answer. Finally, please indicate your choi'es of
answers with check marks.
If you are interested in receiving a summary of the results of my survey, please check
here _ . In any event, please return this letter along with the enclosed questionnaire.
(The summary will disclose the title and publisher of my article.)
Thank you for your cooperation.
Sincerely,
[* As publication neared, I decided to forgo the list to save space.]
(APPENDIX continued) . . .
SURVEY QUESTIONNAIRE
(Poll of Psychiatrists)
I. Are the basics of W. REICH'S CHARACTER ANALYSIS (e.g., character armoring) widely
accepted:
(a) in the psychoanalytic community?
Yes..__. No..... Don't know.__
(b) in the psychiatric community?
Yes_. No..... Don't know....
2. Do you:
(a) accept the fundamentals of character analysis?
Yes-. No....... Don't know__.
(b) employ resistance analysis?
Consistently_.. Sometimes_.... Never....
(c) apply other character-analytic theories?
Frequently_.... Sometimes....__. Never.......
3. Are most neurotic or chronic emotional disorders associated with or outgrowths of char-
acter disorders?
Yes-. No-. No opinion_..
4. Is the resistance aspect of a character disorder or neurosis solely associated with psycho-
therapeutic stimuli or solely endogenous?
Yes.. No... No opinion_..
5, If resistance is not solely endogenous or therapy-related, can it occur whenever environ-
mental pressures touch core aspects of character structure or neurosis?
Yes__ No. Don't know__
6. Albeit whether resistance may be solely endogenous or therapy-related, would you say:
(a) that a neurotic might sometimes respond to stress-inducing communications
or other such stimuli more on the basis (directly or vis-i-vis subjective percepts
or mental representations) of neurotic repression or stasis anxiety than on the
basis of the objective meanings of the external stimuli?
Yes.__-. No____ No opinion._.
(b) that a character neurotic may often respond to normal stimuli in ways
prompted by perceived stress upon his character rather than in ways related
wholly to the stimuli?
Yes-. No.... No opinion_..
7. If your answer to question 5 is negative, would you yet say that exogenous resistance
could occur where a character neurotic's character defenses or a neurotic's primary
defenses are expressly attacked by another person?
Yes. No...
8. Can a neurotic's espoused religious beliefs be a symptom of his neurosis?
Yes__ No__
9. Can a character neurotic's religiousness be a character defense?
Yes. No...
10 If your answers in 8 or 9 and 5 or 6 or 7 are affirmative, would you say that either a
neurotic's or a character neurotic's religious scruples could
(a) change dramatically if resistance were evoked or repression stimulated?
Yes- No.
(b) be displaced by other symptoms during resistance or repression stimulation?
Yes . No.__
1I. Assuming religion unrelated to character neurosis or pure neurosis, would you say that
a character neurotic's, or neurotic's, religious scruples could be displaced by neurotic
drives:
(a) during repression stimulation? Yes..._.. No.....
(b) during resistance? Yes_...... No .
(SURVEY QUESTIONNAIRE continued) . . .
(SURVEY QUESTIONNAIRE continued)

(c) in the face of severe character stress? Yes-...... No.
(d) during severe traumatic physiological shock?
Yes . No__
(e) during severe traumatic physiological shock combined with alcoholic intoxication associ-
ated with neurotic depression?
Yes.. No.__
12. Would physiological shock exacerbate (rather than de-energize or displace) a character
neurotic's fundamental defenses or traits (e.g., the classic hysteric's ambiguity in the
face of questions touching her character sensitivities)?
Always-.. Often... Seldom__. Never-. No opinior_..
13. What percentage of American citizens are: (a) Psychotic? (Estimate.)-.%
(b) Character neurotic? (Estimate.)-% (c) Pure neurotic? (Estimate.)-%
14. Will a person who knows his death is imminent be more likely than others to be truth-
ful:
(a) generally? Yes-.. No -. No opinion_...
(b) respecting hate objects? Yes-__ No -. No opinion_....
C1
m
M
..
0
0 cc
<C/
r C1
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"-F
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0o
0
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0n
c1
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ol C4F
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!2 cN Nq q
C4-
:I m
co co 0)0
o o
o 0
enF 00
N r C ulo
N 0) Nq L
c1 N~
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C In- an-
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oc
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020
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n Q =
TABLE I(B)
CONFIDENCE LIMITS CONFIDENCE LIMITS
OF OF
RAW MEANS ADJUSTED MEANS
QUESTION (- 2 Standard Errors)* (± 2 Standard Errors)*
1(a) 1.721-1.381 1.5025502-1.2794498
1(b) 1.885-1.577 1.7141046-1.4910234
2(a) 1.449-1.117 1.4090750-1.0659250
3 1.485-1.233 1.4273648-1.2146352
4 2.422-1.903 1.6850016-1.4349984
5 1.410-1.110 1.2232357-1.0625785
6(a) 1.259-1.027 1.13994166-1.0164274
6(b) 1.087-0.927 1.1015551-1.0010089
14(a) 1.973-1.605 1.6674596-1.4378024
14(b) 2.209-1.845 1.8125228-1.6008095

* Confidence (fiducial) limit formula (9 + 2s5 ) derived according to MAXWELL, BASIC STA-
TISTICS IN BEHAVIOURAL RESEARCH 53-59, App. 2 (1970). Since for every question the
sample was above 60 but below 120, N-I would always be such as to require z values of
2.0 for 95% confidence limits. Id. at 58-59. As in TABLE I(A), "ADJUSTED MEANS"
reflect combining "I" or "2" answers with "3" answers, as do the "ADJUSTED" standard
errors involved.
._=~
.0.
a ×
0
o o
.0
uE
o11 0-
- r-I--a0 mri = El E cnl
N
'Dcol = nj r- C2
-11 n~m, 2
.'0
UU
Ia~
c01 mn ml m m
m = O m DD
0,0I 'o- '- -1 t loovi

l-~r,1-r-.fnLm , y o - -In In
5-.
0
-6 r
r v
M r
=~ F -r4-s c
~5C
cn d C
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u co- m ~ r 0 u
re~u
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0 E=
0 0.0
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00
- -0
.65
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m" mr, r, Mr0 cl
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ed
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00 en33.
Spring 1977 Survey of Evidence Class

Re: Wilson Hypothetical
Number of Responses- 7
Number mentioning an overcoat (or top coat)-16
(The other one mentioned suit)
Descriptions of Overcoat: *
Tweed-5 Black & white-1 Long-I
3/4 length-I Faded Black-I Dark-5
Gray-9 Raincoat-I Checked-I
Knee length-I Not new-I Green-1
Oversized-I Synthetic-I
Number mentioning Build-15

Descriptions of Build:
Lightweight-I rhin-4 Small Build-1
Medium Build-I 5'1 0"---6 Slender-I
Medium Height-I 165 lbs.-2
125 lbs.-I
Tall-3
Slight Build-1 '7"--1
Over six foot-2 160 lbs.-I
Number mentioning hair-17
Descriptions of Hair:
Dark Brown-2 Brown-3 No mustache-2
Black-I Curly- Heavy eyebrows-I
Short-2 Bald-3 No beard-I
Dark-3 ('lean Shaven-2 Dark eyebrows- I
Balding-1 1 o'clock shadow-I
Other Descriptions of Clothing:

Dark gray scarf-I Dark Pants-I Hat-I
Bluish Gray Turtleneck-i Dark Shoes-I Dark Gray Pants-I
Sweater Underneath-2 Turtleneck Sweater-I Black Shoes-I
Other Descriptions of Person:

High Voice-I Long thin face-i Pronounced nose-i
No Glasses-4 Brown eyes-I Impatient-I
50-ish-I Light skin-1 Concerned manner-I
Caucasian Male---8 High forehead-i Hand Inside Coat-3
Oval Face-I Long hooked nose-I
Long Nose-I Dark eyes-2
* Number mentioning overcoat at beginning of description: 12

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liar, irresistible, truth-compelling religious pressures, like fear of eternal

published a comment suggesting that the declarant's trustworthiness is

iously concerned about afterlife and retribution. 23 These allow, however,

from his decision to commit the ultimate malum in se if he could thereby

evidential use of declarations of unavailable, surviving, attempted-homi-

treated as though made under infrajudicial oath, first-amendment-related

II. THE CONFRONTATION CLAUSE AND PROCEDURAL DUE

A. Supreme Court Pronouncements

In 1965 the Court entered a decade of reconsideration of the confron-

incorporated into the fourteenth amendment's due process clause.3 5

process issue in all cases where criminal prosecutors evidence unamenable

confrontation, it profits us to focus on the problem of a hearsay declar-

such cases, positive significance may be given to a defense counsel's deci-

had an earlier opportunity to cross-examine declarant infrajudicially in

Indications are that the fact that the declaration is a "recognized" or

pears to be on the government, 52 unless the indices of nonreversibility

fifth Justice concurring in the Dutton result-Justice Harlan--disdained

B. Hearsay and Confrontation in the Circuit Courts

a prima facie agreement."'66 The relevant holding in Krulewitch did not

66. 450 F.2d at 20 (lst Cir. 1971).

ton assumed that Dutton set a presumption favoring co-conspirator

69. Meaning an irrebuttable presumption that a co-conspirator declaration admissible

In the Fourth Circuit case of UntIedStates v. Payne,76 a two-judge ma-

This reasoning was weak. As the majority knew,8 3 Justice Harlan's

involved non-cross-examinable codefendant confessions given during police interrogation,

Columbia 94-and quite arguably in the two remaining-the Fifth 95 and

government/pro-admissibility presumption suggested above, its opinion would slightly

clarant hearsay is reversible constitutional error is governed by eleven

use of such hearsay is reversible error. Unless hearsay use is patently

97. 517 F.2d 360 (5th Cir. 1975).

of many items on point."0 6 The Stewart hearsay stood alone. 10 7 () The

C. Confrontation, Due Process, and Dying Declarations

Here it will be assumed, arguendo, that dying declarants will not

dent had an opportunity to determine what was happening to him or who

defendant's gult despite the required presumption of innocence? 164 It is

burden of rebutting the bundle of presumptions set up to insulate the

2. Veracity Not Assumed

In Wilson and Slrickland, the declarant's perception was a core prob-

healthy, irrefutably moral and ethical federal judge whose psychological

children, to return about 2 a.m. the next morning. Finding defendant

222. 225 Md. at -, 171 A.2d at 701.

228. Id. at -171 A.2d at 703-04.

attentions of an elusive man. 2 4 7 Concordantly, the hysteric's emotional

perceive romantically, to falsify, to forget rapidly, and to respond to press-

where it is pre-emptively necessary. It is not reasonable to accept a lay

272. See 225 Md. at -, 171 A.2d at 705.

depended on an assumption that defendant had silenced his victim by

clause,2 8 7 has many modern counterparts.28 8 Though the Supreme Court

3. Synthesis and Modulation

287. E.g., Payne, note 76 supra, at 458-64.

III. CONSTITUTIONAL RATIONALITY

in the field of preliminary findings, as in cases of rulings on hearsay trust-

A. Due Process and Rational Empirical Basis