As you learn in law school evidence class, there is a hearsay exception for a dying declaration. In an era of public and private video and audio surveillance, this exception may become more useful than ever.
In Oakland, a city program that includes a system of recording devices on telephone poles in crime-ridden neighborhoods captured the dying words of a murder victim. MercuryNew.com reported that the defendant in that case was found guilty of second-degree murder and was sent to prison for life after the jury heard the victim identify his killer by his nickname and ask “why you do me like that, dude?”
What constitutes a dying declaration is statutorily delineated. Evidence of a statement under the hearsay exception for a dying declaration is only admissible if all of the following are true (Evid C §1242; Comment to Evid C §1242):
- The statement concerns the cause and circumstances of the declarant’s death;
- The declarant had personal knowledge of the facts constituting the cause and circumstances of the declarant’s death;
- The declarant was under a sense of immediately impending death when the statement was made; and
- The declarant is unavailable as a witness because of having died.
All of these elements were present in the Oakland case and that dying declaration was admitted into evidence. But getting it admitted is not the end of the story. Even admissible dying declarations can be discredited.
Opposing counsel can try to discredit an admitted dying declaration by
- Attacking the credibility of the declarant or the witness who claims to have heard the declaration,
- Casting doubt on the declarant’s ability to communicate accurately or the witness’s ability to perceive the statement correctly, or
- Disputing the weight that should be given to the statement.
For everything you need to know about dying declarations, go to Jefferson’s California Evidence Benchbook, chap 7. On introducing or opposing dying declaration evidence, check out CEB’s Effective Introduction of Evidence in California, chap 22.
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