From the Classroom: The Hearsay Evidence Rule – Dying Declarations
By Ray Hill
Professor Emeritus, Santa Rosa Junior College
“O! But they say the tongues of dying men enforce attention like deep harmony: Where words are scarce, they are seldom spent in vain, for they breathe truth that breathe their words in pain.”
A California appeals court ruling on dying declarations excerpted this line from William Shakespeare, King Richard II, Act 2, Scene 1 by John of Gaunt (Peo. v. Smith (1989) 214 Cal. App. 3d 906).
Dying Declarations: An Exception to the Hearsay Rule
This is the eighth in a series of bulletins covering the California Evidence Code and criminal investigations. This series covers the Hearsay Evidence Rule as it relates to an officer, deputy, or investigator giving testimony in court (140 E.C.).
A dying declaration is evidence of a statement made by a dying person about the cause and circumstances of his or her death (1242 E.C.). This hearsay exception is infrequent, but when it does come up, it becomes very important evidence because it will be in a homicide case.
Courts Have Long Held Dying Statements Are Important
Dying declarations have deep historical roots, as you can see by these three court decisions from centuries ago.
“They are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.” (Rex v. Woodcock (1789) 1 Leach Cr. C. 500)
A shooting victim was asked if she thought she would live. The victim replied, “No, I am dying now. Don’t you see I am dying?” (Peo. v. Fong (1886) 70 Cal. 8)
A shooting victim told a friend, “My time was short,” “I don’t have long to live,” and “A doctor could do me no good.” (Peo. v. Yokum (1897) 118 Cal. 437)
The Legal Basis
The legal foundation for a dying declaration is as follows:
The declarant/victim must be under a sense of impending death (“in extremis.”) This fact can be established by a victim’s statement that expresses concern about dying or about the mortal nature of a wound or serious bleeding, asking for a doctor or family member because of fear of dying, or by acknowledgment in response to questioning by a doctor, nurse, paramedic, police officer or bystander who communicates the serious nature of the wound and possibility of death.
Examples of dying declarations:
The defendant threw gasoline on the victim and set her afire. She suffered third-degree burns over 90% of her body. At the hospital, a doctor told the victim her chances of survival were “very poor.” Victim asked, “Am I going to die?” The doctor replied, “You’re going to die.” The victim replied, “I want to die.” She then told a Tustin police officer that “Jon D’Arcy threw a cup of...fluid. I guess it was gas...He threw it all over me and then he lit me with a cigarette lighter he held in his hand...He deliberately went for me...I was unable to escape...I had no room to move.” The victim declined medical treatment and wanted only comfort measures. She died eight hours later. The statements were made under an impending sense of death and the victim had lost hope of recovery (Peo. v. D’Arcy (2010) 48 Cal. 4th 257)
A victim told a police officer and a citizen, “Please don’t let me die” and “I don’t want to die” (Peo. v. Black (1982) 32 Cal. 3d 1)
A stabbing victim was bleeding from the chest, appeared weak, and was gasping for air and choking. He told an officer, “I don’t think I’m going to make it” (Peo. v. Bagwell (1974) 38 Cal. App. 3d 127)
Moments after a drive-by shooting, an officer told the victim that he had been shot, hurt badly and that he was dying. The victim replied, “Spodie did it --
Spodie from the Hoovers!” (Peo. v. Smith (1989) 214 Cal. App. 3d 906)
Officers responded to a gas station parking lot where a mortally wounded victim told them that the defendant had shot him. The victim was bleeding, in obvious pain and asked repeatedly when medical help would arrive (Michigan v. Bryant (2011) 562 U.S. 344)
In the hospital, a robbery victim repeatedly identified the defendant as the perpetrator (“They chased me, they shot me, they kicked me, they beat me, they robbed me.”) Due to a gunshot wound to the head, she was severely brain injured, had suffered a cardiac arrest and was once revived, and was informed of her grave medical condition by a doctor. Though the victim didn’t die until several days later, her statements were given under an impending sense of death (Peo. v. Gatson (1998) 60 Cal. App. 4th 104)
A shotgun blast struck the victim’s spine near the base of his neck. The injury severed his spinal cord, rendered him permanently paralyzed and affected his ability to breathe. Three days after a shooting, the victim told his pastor, “I’m not going to make it.” A detective who was present asked the victim, “Do you realize or think you are going to die?” He responded, “Now, yeah” (Peo. v. Adams (1990) 216 Cal. App. 3d 1432)
Not Every Statement Qualifies
However, an impending sense of death cannot be taken for granted:
The victim of a hit-and-run accident suffered a serious head injury and a skull fracture. He died in the hospital two weeks after the accident. Other than his serious injury, there was no evidence to suggest at the time that he gave his initial statement to police that he believed he was going to die. His statement did not qualify as a dying declaration (Peo. v. Ramirez (2020) 2DCA #B309519)
More on the Legal Foundation
2) The statement must concern the declarant/victim’s personal knowledge about the cause and circumstances of death.
A victim’s account of a robbery occurring immediately before the suspect stabbed him (Peo. v. Cipolla (1909) 155 Cal. 224)
3) The declarant/victim must die as a result of the wounds inflicted.
Death must occur within three years and a day for a homicide to be charged. Beyond three years and a day, a death is presumed not to be a criminal homicide unless the prosecution proves a proximate cause between act and death. (194 P.C.) This is a rebuttable presumption. Biological death is complete cessation of life function. Clinical death is complete and irreversible cessation of circulatory, respiratory or brain function as certified by two physicians (“brain dead/machine alive.” (7180 H&S Code)
Is the Statement Trustworthy?
The test for trustworthiness embodies the concept that a person about to die would not lie on one’s deathbed. A dying person would want to “meet their maker” with a clear conscience and not having a lie as one’s last utterance.
“It is the abandonment of hope, the expectation of certain and imminent death, and the belief of the law that at such an awe-inspiring time a man about to be called to account before his maker will tell the truth.” (Peo. v. Smith (1913) 164 Cal. 451)
“Nemo moriturus proesumitur mentiri” – Latin for “A man will not meet his maker with a lie in his mouth.” (P.V. Radhakrishnav v. State of Karnatake (Supreme Court of India 2009)
Religion Not a Factor
It is not necessary to show a person holds deep religious convictions to meet this test for trustworthiness, nor need proof of religious belief be established (789 E.C.; Peo. v. Smith (1989) 214 Cal. App. 3d 906).
A declaration made by a person about to die has a substantial guarantee of trustworthiness. “The very solemnity of the circumstances under which an ‘in extremis’ declaration is made is considered as creating an obligation equal to that which is imposed by an oath in court” (Peo. v. Smith (1989) 214 Cal. App. 3d 906; Idaho v. Wright (1990) 497 U.S. 805).
What if the Witness Doesn’t Die?
What happens if a person believes he or she is going to die, makes a statement, but ends up surviving? This statement is not admissible as a dying declaration because no death has occurred. However, the statement could still be admissible in fulfilling the legal foundation of a “spontaneous statement” (1240 E.C.) or under Prior Statements of Witnesses (1235 E.C.).
Felonious homicide is at the top of the “criminal justice wedding cake” of crimes. First responders should be alert to the potential for a dying declaration. Someone has to jump in the ambulance on the way to the emergency room to gain a statement. Interview any witnesses or medical personnel about any statements made by the victim proceeding death. The victim is not around anymore. A responding Samaritan, yourself, a paramedic or emergency room doctor can testify to what victim said for the proof of the matter asserted.
Next – Prior Statements of Witnesses and Prior Identification