concurring.
I concur in the holding that Elizabeth Johnson’s statements on January 5, 1976, and afterward were admissible as dying declarations.
However, I think this case can be brought within the traditional criterion of “abandoned hope” which was stated in Hewitt v. State, 514 P.2d 6, 8 (Alaska 1973). In the case at bar the declarant did not have the same motive to fabricate as did the declar-ant in Hewitt. Moreover, the circumstances here present a much greater probability as to the imminence of death, and from these circumstances we can infer that Elizabeth Johnson was aware of the severity of her injuries and of the great likelihood that she might not survive. In my opinion a sufficient circumstantial showing was made to permit the inference that she spoke “with the consciousness of a swift and certain doom.” Shepard v. United States, 290 U.S. 96, 100, 54 S.Ct. 22, 24, 78 L.Ed. 196, 199 (1933).
We should not adhere to a rigid formalism in applying the rules of evidence. But it is not because of blind adherence to formalism that the “abandonment of hope” limitation should be retained. Rather, it is that the principles underlying this exception to the hearsay rule should cause us to adhere to traditional requirements.
The dying declaration rule rests upon certain assumptions about human nature which may in themselves be highly questionable. Like many such rules it evolved historically, and it has become considerably ossified within narrow limits.1 But at least those limits render the rule easy to apply except in a few marginal situations.
The rule assumes that the declarant will be more truthful than others, without reference to the personal characteristics of the declarant. The judicially created limitations on the use of dying declarations have their origins, no doubt, in the inherent danger of giving too much credence to the assumptions underlying the rule. As Professor McCormick observed:
“It is arguable that a belief in the mere probability of impending death would make most men strongly disposed to tell the truth and hence guarantee the needed special reliability. But belief in the certainty of impending death, not its mere likelihood or probability, is the formula insisted on and rigorously applied. Perhaps this limitation reflects some lack of confidence in the reliability of ‘deathbed’ statements generally.”
C. McCormick, Handbook of the Law of Evidence § 282, at 680 (2d ed. 1972). Until we substitute by positive enactment a new rule,2 I see no reason to discard the common *27law criteria of admissibility. Those criteria reflect a certain accumulated wisdom about the dangers of admitting dying declarations too readily. Until convinced of the desirability of a new rule, I would adhere to all of the elements of the traditional rule.
. Some of these limits may have resulted from a mishandling of precedent. See C. McCormick, Handbook of the Law of Evidence §§ 282-83 (2d ed. 1972); V Wigmore, Evidence §§ 1431-32 (Chadbourn rev. 1974).
. The rule could be broadly modified, or the hearsay rule as to declarations by deceased persons concerning their assailants could be abandoned altogether.