Which statement best describes the admissibility basis of the witness's plane crash remark 'I'm dying' when both spouses die in the crash?

• A. It is admissible as a dying declaration.
• B. It is admissible as evidence that the speaker was alive at the time.
• C. It is inadmissible as hearsay.
• D. It is admissible as nonhearsay to prove the speaker could articulate and thus alive.

Answer: (D)

The key idea is how hearsay rules treat statements about death versus statements offered for another purpose. A dying declaration is an exception that allows a statement about the cause or circumstances of the declarant’s impending death to be admitted, but only if the statement is offered to prove those death-related facts and the declarant believed death was imminent.

Here, the remark “I’m dying” does not describe the cause or circumstances of death. It asserts a condition of the declarant, but the purpose of admitting it is to show that the speaker could articulate the remark and was alive enough to speak, not to prove that he was dying. Because the evidence is being offered for a nontruth purpose—to establish that the speaker could communicate and thus was alive at the time—it is not hearsay.

That makes it admissible as nonhearsay for the limited purpose of proving the speaker’s ability to articulate and thus that he was alive at the time. If the statement were offered to prove that the speaker was indeed dying or the cause of death, it would face different rules and likely not fit as a dying declaration in this context.