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self-study / Evidence

Oct. 30, 2023

Last words: On dying declarations

Glendale Courthouse

Ashfaq G. Chowdhury


Columbia Law School, 2000

“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.”

- William Shakespeare, History of Richard II act 2, sc. 1

The voice from beyond the grave – it’s not just a trope in Stephen King, but is also codified as a hearsay exception: “Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.” (Cal. Evid Code § 1242.) The federal analogue is similar, making a hearsay exception “[i]n a prosecution for homicide or in a civil case [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.” (Fed. R. Evid. 804(b)(2).) Yes, as you might’ve guessed, this is a special Halloween installment of Adventures in Hearsay.

The dying declaration exception has a long history in this state and in American common law. (See, e.g., People v. Thomson (1905) 145 Cal. 717, 723 [“[A] dying declaration stands upon a higher plane than that occupied by the testimony of the ordinary witness, and that the testimony of a mere witness may be distrusted and disregarded where a dying declaration may not be so rejected.”].) It’s worth noting that John Adams apparently relied on a dying declaration exception in his defense of several British soldiers in the Boston Massacre trial. The exception appears to have originated in England in the early eighteenth-century. (See Rex v. Reason (1722) 93 Eng. Rep. 659, 659–60; 1 Strange 499, 499–500 [first apparent use of dying declaration exception].)

What is the “sense of immediately impending death” required by Section 1242? “This sense of impending death may be shown in any satisfactory mode, by the express language of the declarant, or be inspired by his evident danger, or the opinions of medical or other attendants stated to him, or from his conduct, or other circumstances in the case, all of which are resorted to in order to ascertain the state of the defendant’s mind.” (People v. Monterroso (2004) 34 Cal.4th 743, 763.)

In Monterroso, the decedent-declarant had been shot, the declarant knew he had been shot, “was in great pain and on the ground in a fetal position, was fearful of dying, and never spoke again.” (Id. at 763.) The declarant didn’t die on the day of the shooting; he died 11 days later. Even so, the Court concluded that the statement on the night of the shooting was a dying declaration under Evid. Code § 1242, “even though [the declarant] lingered on for several more days before dying.” (See also People v. Wilson (1942) 54 Cal.App.2d 434, 442-43 [proper dying declaration where, before declarant made statement, she “had been told by three different physicians that she could not recover; she had consented to the administering of the last rites of the Catholic Church[, and] she was fully conscious and competent at the time the statement was made”].)

In contrast, if the decedent-declarant didn’t believe or have good reason to believe he or she was dying, the “sense of immediately impending death” requirement would not be met. For example, in People v. Ramirez (2019) 34 Cal.App.4th 823, 829, a felony hit-and-run prosecution, the decedent-declarant victim had been struck by a car and banged his head on the pavement, fracturing his skull. He survived the accident, though, and was taken to the hospital. There was some indication in his medical file that, in the emergency room, a few hours after the accident, he had stated to a nurse that he had not been hit by a car, but had instead been “assaulted with fists to the head.” (Id. at 828.) The victim did not pass away until almost two weeks after the accident, from a heart attack. The coroner determined that the cause of the victim’s death was heart disease, but the blunt force trauma or skull fracture “was a contributing cause.” (Id. at 826.)

The defendant driver sought to have the victim’s purported ER statement about being assaulted with fists admitted over the prosecution’s objection, as a dying declaration. (Id. at 828.)

The court refused, finding that, at the time he made the statement, “there was no indication the victim believed his death was imminent.” (Id.) Defendant “concede[d] there was no direct evidence [the victim] believed he was dying when the alleged statement was made but argue[d] the serious nature of his injury (skull fracture) was strong circumstantial evidence he likely believed he was dying.” The court disagreed, noting that “[w]hile the head injury was a serious injury, there is nothing else in the record that reasonably suggests [the victim] made the statement believing he was about to die.” (Id.) Apparently, the victim had not been advised that his injuries were life threatening, and the heart attack some two weeks later came as a surprise to the victim.

The exception is firmly enough entrenched in the law to also survive as an exception to the Sixth Amendment’s Confrontation Clause: “In Monterroso, supra, 34 Cal.4th 743 … the California Supreme Court directly answered the question left open in Crawford v. Washington [543 U.S. 36 (2004)], holding explicitly that the admission into evidence of dying declarations, even if testimonial in nature, does not violate a criminal defendant’s right to confrontation. If, as Crawford teaches, the confrontation clause is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding, it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment.” (People v. Mayo (2006) 140 Cal.App.4th 535, 554-55 [cleaned up].)

It’s worth noting that courts have criticized the rationale behind the dying declaration. Famously, the Wisconsin Supreme Court took issue with the rationale behind the exception back in 1877:

“Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence.”

(State v. Dickinson (1877) 41 Wis. 299, 303; accord Richard A. Posner, On Hearsay, 84 FORDHAM L. REV. 1465, 1469 (2016) [quoting Dickinson and criticizing the rationale behind the dying declaration].)

The rationale behind this exception lies deep in the murk of the common law. Shakespeare to one side, it’s hard to know whether anything other than “folk psychology” supports the exception. (Posner, supra, at 1470; see also Timothy T. Lau, The Reliability of Dying Declaration Hearsay Evidence, 55 Am. Crim. L. Rev. 373 (2018).)

But, like the constellation of exceptions to the rule against hearsay, the arguable flimsiness of the rationale behind the dying-declaration exception is likely weighed against the arguable flimsiness of the rationale behind the rule against hearsay itself. As noted back in 1905 in Thomson, supra, 145 Cal. at 724 “after the evidence is admitted [as a dying declaration], its credibility is entirely within the province of the jury, who, of course, are at liberty to weigh all the circumstances under which the declarations were made … and to give the testimony only such credit as … they may think it deserves.” In any event, for the time being, we are left with Justice Holmes’s maxim, for better or worse: “Upon this point, a page of history is worth a volume of logic.” (New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).)


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