The “dying declaration” exception to the hearsay rule just jumped from law school textbooks onto California newspapers: A young woman who was stabbed and bleeding told officers about who had assaulted her shortly before she died, leading to the arrest of two suspects. It’s time to review what’s required to meet this hearsay exception.
Here are the basics. Evidence of a hearsay statement of a declarant is admissible in both civil and criminal cases under the hearsay exception for a dying declaration if all of the following are true (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 at the time the statement was made; and
- The declarant is unavailable as a witness because of having died.
These requirements are pretty straightforward, but there can be confusion as to the third one. Did the declarant really believe his or her death was imminent? The theory of trustworthiness underlying this exception is that a person who thinks death is imminent is apt to tell the truth about the cause of the illness or injury.
Evidence of the sense of immediately impending death may be found in the declarant’s own words as a part of the statement, but that’s not essential. You can determine the declarant’s belief that death is imminent based on the surrounding circumstances as testified by witnesses, such as the declarant’s physical condition, the nature of any wounds or injuries, and the declarant’s conduct and statements. For example, in People v Adams (1990) 216 CA3d 1431, 1440, the declarant’s statement was made after he decided not to artificially prolong his life.
Here’s an illustrative example of the declarant’s belief in impending death:
Paramedic P finds victim V leaning against a wall, bleeding profusely from gunshot wounds to his head and neck. V says, “Please don’t let me die.” P assures V that he will not let him die. V is alert and oriented. In the ambulance, P tells V that he is being taken to a trauma center and again assures him he will survive. V answers that the assurances are “bullshit.” He states, “I feel like I am going to die.” At the trauma center V answers questions about what happened and states that D shot him. V repeats D’s name several times to an officer and describes the color of D’s hair and his clothing. V is then taken to surgery, where he dies. Over defense counsel’s objection, the trial judge rules that V’s statements are admissible under the totality of the circumstances. (See People v Sims (1993) 5 C4th 405, 457.)
Is the trial court’s ruling correct? Yes. D argued in Sims that V’s statements to P not to let him die demonstrated that he didn’t believe in his immediately pending death. The Sims court pointed out that there’s no incompatibility between the belief of a mortally wounded victim that he’s about to die and his desire to receive possible benefit from immediate medical treatment. V’s plea for help reflected his belief that his condition was critical. Therefore, even had he not later expressed skepticism about P’s assurances, his statements would still be admissible.
And the belief that death is imminent doesn’t have to be correct. The dying declaration exception is available even if the declarant didn’t die immediately, as long as he or she believed death was imminent at the time of making the statement. People v Monterroso (2004) 34 C4th 743, 762.
It will be interesting to see whether the dying declaration exception will be used in the recent case of the stabbed woman. It’s also interesting to ponder whether it would be similarly applicable had she texted her statement instead of spoken it. What do you think?
Find more detail on dying declarations and additional illustrations of the rule in Jefferson’s California Evidence Benchbook, chap 7. Also check out CEB’s Effective Introduction of Evidence in California, chap 22 for sample questions to ask a witness when establishing this exception.
Other CEBblog™ posts you may find useful:
- Dying Declaration Captured on Tape Leads to Conviction
- 3 Ways to Prove Former Testimony at Trial
- Dead Man Talking
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